Background & Analysis on the Criminal Law (Forensic Procedures) Amendment Bill: briefing by the Parliamentary Research Unit

Meeting report

Briefing by the Police Parliamentary Research Unit (PRU)
The PRU gave an overview presentation on the new Criminal Law (Forensic Procedure) Amendment Bill. The Bill sought to expand, among other things, the scope and powers of the South African Police Service (SAPS) with regard to the gathering, processing and administration of DNA services. The Bill affected other legislation such as section 37 of the Criminal Procedure Act, the Firearms Act and the Explosives Act.

Ms Patricia Whittle, Researcher, PRU, said that the current situation was that the DNA samples and ascertainment of other bodily features was regulated by the Criminal Procedures Act (CPA). The Act was very specific concerning how samples collected in terms of section 37 of the CPA had to be used and disposed of. One of the provisions in the CPA directed that samples had to be destroyed if and when the suspect was not convicted. The Bill would be amended so that it allowed the SAPS not to destroy the samples, but to keep them in the database. The samples could be destroyed after five years if no conviction was achieved.

The intention of the Bill would, therefore, be to expand the powers of the police to collect and store DNA samples. In particular, the Bill aimed to establish and administer a National DNA Database (NDDSA) and, further, to give police access to the Home Affairs National Identification System (HANIS) and the electronic National Traffic Information System (eNaTIS). It was reported that the Department of Home Affairs (DHA) had over 31 million fingerprints of South African citizens and over 2.5 million fingerprints of foreigners in their database. The Department of Transport (DoT), on the other hand, was reported to have over 6 million thumbprints in their database.

Addressing the question of the scope and application of the Bill, Ms Whittle said the Bill sought to make provision for police officials to take DNA samples without a warrant if s/he thought there were reasonable grounds to believe that the samples would help in the detection or investigation of a crime. The big question; however, is what constituted those “reasonable grounds”. The Bill also made provisions for private citizens who were not subject to any investigation. There were various safeguards regarding the use of DNA samples, such as harsh penalties for the abuse of the samples. The Bill made a distinction between intimate and non-intimate samples, whereby in terms of the former; the services of a qualified and registered medical practitioner had to be engaged.

As far as the applicability of the Bill to ordinary private citizens not under any criminal investigation, the Bill provided that consent had to be given by the person concerned. The Bill was, however, silent on whether a person who voluntarily gave their consent could, at a later stage withdraw their consent and demand that their sample be destroyed. The Bill was also silent about how it should be applied to children. In terms of definitions, the Bill did not specify what kind police official would be allowed to collect or administer DNA samples. As a safeguard mechanism, it was suggested that perhaps the Bill should narrow this provision down to a particular police official of a specified rank or command in the chain. Still closely linked to this issue was the dilemma of shortage of personnel. The presentation highlighted that South Africa had a high shortage of forensic personnel. This was due, in part, to the very low entry level and the high demand of forensics personnel in developed countries. It was suggested that perhaps the SAPS needed to overhaul their recruitment and retention strategy.

Ms Sueanne Isaac, Researcher, PRU, hosted an information sharing session where she highlighted areas in the Bill that needed closer and more detailed attention. She reminded Committee Members that the Bill affected certain civil liberties, some of which were entrenched and protected by the Constitution. It was important that the Committee deliberated on these issues, as there was a possibility that that some of these reforms might not pass the constitutional test.

The Bill infringed certain constitutional rights such as the right to equality (section 9), privacy (section 14), human dignity (section 10), bodily integrity (section 12), children’s rights (section 28) and the rights of accused persons under section 35. Although all these rights were protected, none of them were absolute. This meant they could be limited by way of applying section 36 of the Constitution, known as the Limitation Clause. This allowed for the limitation of any right in the Bill of Rights provided such limitation or violation of the right concerned was reasonable and justifiable in an open and democratic society.

The Committee was asked to look more closely at provisions that could affect children, noting that the South African legal system was shifting its approach in how it dealt with children- it was becoming more compassionate. The lack of differentiation in the Bill, particularly where it referred to persons, could be interpreted as referring to both adults and children. It was important to consider whether it was appropriate for the Bill not to differentiate between the taking of fingerprints and taking DNA samples. The two could not necessarily be given the same level of recognition, as it was obvious that DNA samples and the information that could be extrapolated from such samples could be more intrusive and result in the infringements of rights mentioned above.

Another issue that needed to be considered was the taking of fingerprints or DNA samples for every kind of offence. Ms Isaac said that this might need to be revisited, taking into account the personnel capacity of the SAPS. She said it may well be fitting that minor offences could be overlooked to place more focus and limited resources on serious crimes. On the issue of retention or destruction of samples, she said it was problematic to imagine the justification for retaining samples from a person who had not been convicted if the law could protect an ordinary law abiding citizen from having their samples taken against their will. It was important to harmonise the legislation dealing with the destruction of samples, saying that at the moment the CPA and the SAPS Act were not complementing each other in that regard. For example, the latter was silent about whether or not samples of non-convicted persons should be destroyed.

On the issue of mandatory retention of DNA samples, it was important for the Bill to clarify and distinguish between five year retention of samples of non-convicted offenders and the indefinite retention of samples from convicted offenders. In terms of convicted offenders, there were issues of capacity, as it could militate against the storing of samples from those convicted of minor offences. With regard to the use of force to obtain evidence, there was a law that said evidence obtained by using force could be inadmissible. Therefore, it was important for the Committee to consider whether a provision- allowing the police to use force- would be desirable.

In terms of volunteers, the Bill stated that a volunteer could not decide to withdraw consent if it was given earlier. Referring to the South African society in general, there was a significant portion of the population that was not literate and it was possible that the issue of informed consent could not always be possible. Also, there was lack of clarity regarding consent given by parents on behalf of minors. The Bill made provision for a parent to give this consent but said a child could, after reaching the age of majority, apply to the court if he or she wished to have their samples removed from the database. This could potentially place an unnecessary burden on the person concerned. She suggested that a provision be included in the Bill saying that under certain circumstances, samples would automatically be removed. Another area of concern included expungement provisions, as one could never know whether an individuals DNA samples would be kept in the SAPS database even though their criminal record or sentence had been expunged.

Comparing the forensic evidence to other countries, Ms Isaac said that the Bill sought to conduct its forensic procedures in line with the United Kingdom’s (UK’s) practice. In the UK, DNA samples were taken from arrested and convicted persons. Furthermore, the UK stored profiles of all convicted persons indefinitely and South Africa wanted to do the same. The practice of forensic procedures in United States (US) depended on the state in question and this varied from state to state. The UK authorities were in the process of reforming the laws regarding DNA after a landmark case, S. and Marper vs the United Kingdom, which found that the indefinite retention policy was an unreasonable infringement of people’s rights if those people where not convicted.

Mr Mpumelelo Mpisi, Researcher, PRU, said that the Amendment Bill would bring positive changes regarding the investigation and detection of crime. Mr Mpisi explained that his presentation would focus on the storage and maintenance of these samples. He advised the Committee to deliberate more vigorously about the duration of storage. The maintaining of database came at a cost. It was revealed that the implementation of this entire project may cost up to R9 billion. Corruption amongst law enforcement agencies would further require some serious safeguards measures against fraudulent and manipulation of DNA samples and this would boil down to recruiting highly competent, qualified and fit personnel.

The location of crime laboratories was highlighted as an issue that needed thorough consideration. Others argued that the use of private laboratories would be better and commercially viable as, whereas others said the personal nature of information, together with the potential for abuse of this information would militate against such a move. Mr Mpisi was strongly in favour of privatising forensic laboratories, and providing strict safeguards and quality assurance measure. Issues of recruitment and retention strategy of personnel were also highlighted as critical for the success of the forensic procedure.

Discussion
The Chairperson reminded Members to note that the presenters were mere lay persons and not officials from the Department; hence there was a need to think carefully about questions they wanted to ask. She said it would be best for the Members to ask mainly clarity seeking questions, taking into account that the presentations were information sharing in nature.

Mr V Ndlovu (IFP) thanked all the presenters for a job well done. He said he was worried that the Bill sought to infringe on many protected rights and in particular the right to privacy. He was concerned about the timeframe of five years before samples of non-convicted persons could be destroyed.

Ms Isaac said the issue of privacy was a genuine concern; however, there were provisions and measures specifically detailing that the information could only be used for the purposes of detecting, investigating and prosecution of crime. There were enough provisions that made it a criminal offence to use information obtained from DNA samples for purposes other than those specified.

Mr H Chauke (ANC) said that the issue of infringement of rights was very serious. Other issues that were equally concerning was the issue of public participation and the high costs associated with the implementation of the Bill.

Mr M George (COPE) said he was concerned about the budget needed to implement the Bill. He said it was common practice that officials would state the budget was approved and therefore money was not a problem, but once the Bill was signed into law and it was time to start implementing, one often heard the issue of money coming to haunt the project. He was concerned about the use of force, in particular, the haphazard taking of fingerprints without a warrant, but under the guise of reasonable suspicion.

Rev K Meshoe (ACDP) wanted to know why the Portfolio Committee on Justice was not involved in this Bill. There were too many constitutional aspects that affected the Justice Portfolio Committee; hence they should have been involved. On the Issue of capacity and budget, if resources were not readily available, then processes to implement the Bill should not be rushed. He asked for clarity regarding when DNA samples be taken and what would happen to people who were wrongfully arrested.

Ms Isaac said indeed some of the provisions in the Bill amounted to an infringement of certain rights but the question that needed to be asked once such infringements happened, was whether section 36 (the limitation clause) of the Constitution could be applied to justify that infringement.

Mr G Schneemann (ANC) said he was still not clear what the main reason was for the high staff turnover rate at crime laboratories. He asked what the turnover rate was in the private sector. He asked the researchers to inform him on what standard practice was in other countries regarding privatisation of forensic science laboratories.

Mr Mpisi said the trend in many countries was that the laboratories were state owned. Regarding the high level of staff turnover, he explained that there were a combination of reasons for this ranging from low entry levels, poor remuneration and the fact that forensic personnel were in high demand in most developed countries, most of whom were head-hunting these professionals from South Africa.

Ms A Molebatsi (ANC) voiced her concern about the persons authorised to take the DNA samples. Her understanding was that the Bill gave broad powers to any police official. Because of the sensitive nature of some of the samples that would needed to be taken, it would be best if there was a person specifically chosen, either on the basis of his or her rank or qualification, that would be authorised to do it. Rather this than a blanket authorisation, as was the case at present in the Bill.

The Chairperson asked why reference was made to the UK and US forensic laboratories. It would have been interesting to know how other developing countries, particularly in Africa were going about with this issue of administering forensic science laboratories. Secondly, the she enquired whether the Bill was not affected Human Tissue Act in any way, taking into account that some of the components of the body may comprised of tissues that were regulated by that Act.

Ms Isaac promised to do research on the Human Tissue Act, to see if the Bill infringed or contradicted some of its provisions. Regarding case studies from developing countries, Ms Isaac said that none of the developing countries had well established forensic science laboratories.

Mr Mpisi added that South Africa was taking a giant step in improving its forensic science laboratories and procedures and in many instances many of the developing countries were using South Africa to process their DNA samples for some of their serious crimes.

Mr Chauke asked why it was so difficult for various state departments to have access to each other’s databases. He wanted to know whether there was a law that prohibited departments from using each others databases, or if it was one of those bureaucratic processes that made it so difficult.

Mr Mpisi said he was not aware of any legislation that prohibited easy access to databases. However, he was aware that in many other countries where this process was easy, it was due to the fact that in those countries the Department of Home Affairs also controlled the police. Hence, it was easier to access files such as fingerprints from the national register.

Ms A Van Wyk (ANC) suggested that the Committee needed to consult with the State Law Advisers about the lack of differentiating of children, and whether it was out of line with certain legal requirements. She asked if the Bill could be implemented in different phases as a way of circumventing the costs associated with implementing the entire Bill at once.

The Chairperson said it would be best to wait for the upcoming meeting with the officials from the Department of Police, who would brief the Committee about the costs of implementing the Bill. She asked Ms Isaac if one week would be enough for her to come up with answers concerning the impact of the Bill on the Human Tissue Act.

Ms Isaac agreed that one week was a sufficient amount of time and she would be ready to brief the Committee about her findings regarding the impact of the Bill on the Human Tissue Act.

The meeting was adjourned