CRIMINAL LAW FORENSIC PROCEDURES AMENDMENT BILL 2009 BILL

CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL, 2009 (BILL 2 OF 2009) Presentation by the South African Police Service

CURRENT LEGAL POSITION n n Section 37 of the Criminal Procedure Act, 1977 (CPA) is the only statutory provision on ascertaining bodily features of an accused. It provides for fingerprints, palm-prints, footprints, photographs and the record of steps taken to obtain such evidence, to be destroyed if a person is acquitted or no prosecution was instituted against him/her. Section 37 makes no mention of the collection of DNA evidence - it was drafted long before the developments within this field - but remains the legislative source for the current gathering of DNA evidence in SA.

STATUS: FINGERPRINT EVIDENCE There are 3 major fingerprint databases in SA, but for legal (and IT reasons) the Police can source only the AFIS database for criminal investigations: n AFIS (Automated Fingerprint Information System) contains the following data: - 10 fingerprint databases – 6, 4 million prints - Latent fingerprint database (from crime scenes, suspects unknown) – 620 060 - Palm print database – 803 470 - Latent palm print database (from crime scenes, suspects unknown) – 63 278

STATUS: FINGERPRINT EVIDENCE (Cont) n n The HANIS system of the Department of Home Affairs, which SAPS cannot access: - 31 million prints of citizens - 500 000 prints from immigrants, refugees and deportees (a further 2 million prints in the process of being loaded) - Thus, the HANIS will eventually have 33, 5 million prints The E-NATIS system of the Department of Transport, which SAPS cannot access: 7 mil thumb prints (only have thumb prints, not all 10 fingers)

LEGISLATIVE CHALLENGES: FINGERPRINT EVIDENCE Despite a number of Departments administering databases containing fingerprints, existing legislation only permits the SAPS access to the AFIS but not to the HANIS or E-NATIS systems (ie 40 mil prints). n Section 37 of the CPA does not permit the retention of finger-, palm-, foot-prints, photographs and the record of steps taken to obtain such evidence if a person is acquitted or no prosecution was instituted against him/her. n The Firearms Control Act, 2000 and the Explosives Act, 2003 do not permit the loading of fingerprints taken in terms thereof onto the AFIS system and can therefore not be utilized for criminal investigations. As a result, a fingerprint lifted at a crime scene will most likely only be checked against the “limited” number of fingerprints from convicted offenders, which are included in AFIS. n 5

LEGISLATIVE CHALLENGES: DNA EVIDENCE n n n Although the taking of blood samples in criminal cases and the ascertainment of other bodily features is broadly regulated by section 37 of the CPA, no mention is made of the collection of DNA evidence. There is no legislation in South Africa specifically providing for the establishment and administration of a DNA database as a crime intelligence tool. SAPS has the capacity to test DNA evidence lifted from the crime scene against a known suspect. Our law and forensic capacity does NOT provide us with the possibility of establishing a DNA database, at least containing profiles from ALL suspects arrested and profiles arising from crime scenes. 6

UK v SA DNA PROFILING STATISTICS 7

INTERPRETATION OF UK V SA PROFILING STATISTICS n n n The suspect component of the SAPS database is significantly small with a 0. 02% likelihood of obtaining a DNA hit between a suspect and a sample from a crime scene. This contrasts sharply with the UK which has a 52. 2% likelihood of obtaining a hit between a suspect and a sample from a crime scene. Increasing the DNA database will increase the likelihood of a hit between a suspect and a crime sample. UK statistics indicate that, for South Africa to use DNA evidence more successfully in fighting crime, the following needs to be done: n The number of suspects on a National DNA database needs to be increased dramatically- ie suspects must be loaded onto the database for it to be effective as an investigative tool- thus suspects should represent 90% of the database (hence the requirement for the legislation) & crime samples should be the smaller component. n The crime sample component of the DNA database in South Africa should represent a bigger proportion property crime scenes. 8

RECOMMENDATIONS n n The Criminal Law (Forensic Procedures) Amendment Bill and accompanying business plans have been drafted to address the above mentioned shortcomings, in order to strengthen the SAPS forensic crime fighting capacity in respect of fingerprint and DNA evidence, by: Dealing with all aspects of biometric evidence (esp. DNA, fingerprints); Expanding and upgrading the existing fingerprint database within SAPS (for example, allowing police to take fingerprints from all accused and to keep such fingerprints); Linking SAPS fingerprint database with other fingerprint databases in Government (such as DHA’s HANIS system) and allowing LEA’s to utilise other fingerprint databases for criminal investigations; Giving the SAPS the power for the first time to collect DNA samples (nonintimate samples); and Establishing and providing for the management and administration of a National DNA Database to include all suspects and crime scene profiles. The Bill aims to achieve these objectives whilst providing for strict safeguards and penalties to ensure that forensic materials are collected, stored and used only for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution. 9

SUMMARY OF BILL Some of the main features of the Bill can be summarised as follows: a) The Bill provides a new legislative framework with regard to forensic procedures and affects various consequential amendments to a number of Acts. b) Clause 1 substitutes the heading of Chapter 3 of the CPA, in order to ensure that the provisions of Chapter 3 are not limited in its application to accused persons only. c) Clause 2, firstly, inserts a definition clause into Chapter 3 of the CPA, to clarify, amongst others, new terminology associated with the establishment of a DNA database. In particular, the following definitions should be noted: n The Bill distinguishes between intimate and non-intimate samples. Intimate samples can only be taken by medical professionals while non-intimate samples, such as a buccal swab or hair sample, can be taken by any police official. n Speculative search – The Bill provides that fingerprints, non-intimate samples or the information derived from such samples (DNA profiles), may for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution, be subjected to a speculative search by an authorised person (which is also defined in the Bill) against other databases, in the case of fingerprints, or against the National DNA Database of South Africa (NDDSA) in the case of non-intimate samples or the information derived from such samples. The Bill stipulates the circumstances under which, the manner in which and the persons to whom the information derived from a speculative search may be communicated. 10

SUMMARY OF BILL (Cont) d) Secondly, Clause 2 inserts a new clause 36 B into Chapter 3 of the CPA, to provide the police with powers in respect of the taking of fingerprints and nonintimate samples of accused and convicted persons. n The clause makes the taking, by police officials, of fingerprints and nonintimate samples of certain categories of accused and convicted persons compulsory. n It provides for the retention of such prints and samples, but stipulates that it may only be used for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution. Where fingerprints or non-intimate samples were taken from a person who was not subsequently convicted by a court of law, the Bill stipulates that such prints and samples must be destroyed after a period of five years n This clause applies retrospectively to any convicted person serving a sentence at the time of the commencement of the Act. 11

SUMMARY OF BILL (Cont) e) Thirdly, clause 2 inserts a new clause 36 C into Chapter 3 of the CPA to provide the police with powers to take fingerprints, body-prints and non-intimate samples for investigative purposes, if there are reasonable grounds to suspect that a person has committed an offence and if the police believe that the prints or samples or the results of an examination thereof, will be of value in the investigation by excluding or including one or more of the persons as possible perpetrators of the offence. f) Clause 3 amends section 37 of the CPA in order to ensure that prints and samples taken under this section are no longer destroyed with immediate effect if a person was not convicted by a court of law, but are retained for a period of five years, to be used only for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution. Provision is made here and throughout the Bill for strict penalties to apply should prints or samples or the information derived from such samples be used in any manner or for any purpose other than those stipulated in the Bill. Prints and photographic images taken under section 37 (36 B or 36 C, if applicable) will be retained and stored on databases maintained by the Division: Criminal Record and Forensic Science Service of the SAPS. g) Clauses 4 and 5 merely affects certain consequential amendments to sections 212 and 225 of the CPA. 12

SUMMARY OF BILL (Cont) j) k) l) The Bill provides that the NDDSA consists of five indices, namely – (i) a Crime Scene Index containing DNA profiles loaded from bodily substances found at the crime scene; (ii) a Reference Index containing DNA profiles loaded from samples taken under Chapter 3 of the CPA (suspects); (iii) a Convicted Offenders Index containing DNA profiles loaded from samples taken from convicted offenders (applies retrospectively); (iv) a Volunteer Index contains DNA profiles loaded from samples given by volunteers with their informed consent; and (v) a Personnel, Contractor and Supplier Elimination Index, to be used only for quality control purposes. The Bill requires the National Commissioner to develop standards for quality assurance, including standards for testing the proficiency of the laboratories and forensic analysts conducting DNA analysis. The Bill also requires the National Commissioner of the SAPS to issue national instructions relating to a number of areas that will require special attention in order to implement the legislation, such as for instance the manner in which to secure a crime scene for purposes of collecting bodily substances. 13

SUMMARY OF BILL (Cont) m)Clauses 7 and 8 affect certain consequential amendments to the Firearms Control Act, 2000, in order to bring the provisions dealing with the powers of the police to take prints and samples in line with the new provisions in the CPA. n) Similarly, clauses 9 and 10 affect certain conconsequential amendments to the Explosives Act, 2003, in order to bring the provisions dealing with the powers of the police to take prints and samples in line with the new provisions in the CPA. 14

BENEFITS OF STRENGTHENED FORENSIC CRIME FIGHTING CAPACITY Ø Ø A DNA database and an expanded fingerprint capacity are important crimefighting intelligence tools, particularly in crimes where detection is generally low, such as property and violence related crimes and can lead to a significant increase in suspect-to-crime-scene matches. (The United Kingdom, for instance, has reported that the detection rate in property crimes where DNA samples have been collected and run against an expanded suspect database increased from 16% to 41%. ) DNA scene-to-scene matches help identify patterns of criminal behaviour that may help solve past, existing and future crimes. An expanded fingerprint database and DNA database will not only increase the likelihood of identifying unknown perpetrators, but it will also increase the possibility of linking perpetrators to multiple crime scenes. Plea bargains and guilty pleas increase when suspects are confronted with real evidence, such as fingerprints and DNA evidence linking them to a crime scene. It should also always be borne in mind that fingerprints and especially DNA evidence are used not only to prove guilt, but also to prove innocence. DNA evidence leads to the early exoneration of innocent people. 15

IMPLEMENTATION n n The implementation of the Bill will require significant capacity expansion in respect of both human and other resources, which will require funding to undertake the development of a business systems re-engineering plan (including current and to be process mapping). Additional personnel will have to be trained and retention strategies, such as an occupation specific dispensation, will have to be implemented to retain scarce skills within the forensic science field. The Bill has been provisionally costed and a business plan has been developed to map the incremental implementation of the Bill. National Treasury has been consulted in order to secure a budget for the implementation of the Bill. 16

CONCLUSION In summary, the Bill has been drafted to – a) provide for the expansion of the SAPS’s powers to take and retain fingerprints and other biometric materials, especially DNA samples; a) provide the SAPS with access to fingerprint databases of other Departments for crime investigation purposes; and b) provide for the establishment, administration and use of a DNA database as a crime intelligence tool. n 17