Criminal Law (Forensic Procedures) Amendment "DNA" Bill: draft of Committee's proposed changes

Meeting report

Criminal Law (Forensic Procedures) Amendment Bill: SAPS drafting of Committee proposals
Major General Philip Jacobs, SAPS Head: Legal Services, took the Committee through the working draft of the Bill indicating the changes to the Criminal Law (Forensic Procedures) Amendment Bill as proposed by the Committee.

Clause 1 Amendment of section 36A of Act 51 of 1977, as inserted by section 2 of Act 6 of 2010
Clause 1(a)
He noted the addition of a definition of “authorised officer” in section 36A (aA). This definition clarified that authorised officer meant “the police officer commanding the Division responsible for forensic services within the Service, or his or her delegate”.

Clause 1(b)
Changes to the definition of “authorised person” gave the cases in which that definition applied, which included photographs, fingerprints or body-prints, applied with reference to buccal samples (though it must not be the crime scene examiner of the particular case), and any medical practitioner or registered nurse as defined in the National Health Act.

Gen Jacobs proposed that they add a provision to state that police officials were to take a Correctional Services officer with them to process detainees.

The Chairperson asked for the opinion of the Committee and expressed concern with the proposal because of the belief that SAPS could use this to defer responsibility to Correctional Services. The Chairperson asked if medical practitioners and nurses needed training.

Gen Jacobs responded that they did not require training.

The Chairperson asked if that was the case, was it necessary to mention medical practitioners in this section.

Ms Jenni Irish-Qhobosheane, Secretary for Police, Civilian Secretariat for Police, responded that she believed it was best to leave it in as a precaution for any situation that may arise.

The Chairperson stated that the SAPS Act accounted for medical practitioners so it was not necessary for them to be included in this Bill.

Clause 1(c)
Gen Jacobs said these insertions were clarification of the definition of body print which stated that “bodily sample” meant “intimate and buccal samples taken from a person” and furthermore “buccal sample” meant a “sample of cellular material taken from the inside of a person's mouth”.

Clause 1(d)
He noted the substitution of the word ‘person’ for ‘officer’ in the definition of “comparative search”. There was a substitution of the definition of “comparative search”, which added to the previous definition in stating that it encompassed fingerprints, body-prints and photographic images as well as DNA profiles previously obtained.

Clause 1(e)
The additions included definitions of bodily sample, DNA, forensic DNA analysis, forensic DNA profile, intimate sample, and NFDD [that is, the National Forensic DNA Database].

The Chairperson suggested that crime scene sample should be added to the definition of forensic DNA analysis alongside bodily sample in the second sentence for clarification because they were not the same thing and analysis was being done for both.

The Committee agreed with the Chairperson.

Ms Kohler-Barnard asked if it had even been challenged internationally that a buccal sample was an intimate sample. She asked how it was defined elsewhere and if it was the international standard.

Gen Shezi replied that it was the norm and was used widely internationally.

The Chairperson inquired about section 36A(fC) in regards to the use of the word ‘gender’. She suggested that the word ‘gender’ must be changed to ‘sex’ here and throughout the document. She proposed a grammatical change to section 36A(fD) from “samples taken from a person or from a crime scene” to “samples taken from a person or samples taken from a crime scene” as it provided clarification.

Gen Jacobs went on to explain the new additions to the definition of intimate sample in section 36A(fE) and noted this section relating to handled or discharged a firearm and handled or detonated an explosive was relative to the Explosives Act and the Firearms Control Act. In this Bill, the tests to determine whether someone had handled or discharge a firearm or explosive was not present as it was covered elsewhere.

The Chairperson suggested that section 36A(fA) be looked at, as it was believed that issues regarding firearms and explosives be moved under the definition of crime scene sample as it was not an intimate sample and fit better under crime scene sample.

The legal team explained that it was not part of the definition, rather it was noting an exclusion.

The Chairperson responded that she understood, but if that was the case, why were issues such as DNA taken from fingernails not present? If exclusions were to be made, they should be all encompassing. The Committee was trying to differentiate between intimate and non-intimate samples, as well as crime scene samples and bodily samples.

Gen Jacobs explained that it could be difficult to explain the difference between taking a sample and completing a firearms/explosive test. This test was far different and very time dependent and that the legal team believed the distinction between this test and a sample was clear.

The Chairperson questioned why this definition had to be excluded in the first place as it was already defined elsewhere.

Gen Jacobs put forth the option of deleting this part.

The Chairperson replied that deletion was not what was being asked, rather the Chairperson thought it needed to be moved to crime scene sample.

Gen Shezi explained that they had previously discussed the differences between non-intimate and intimate samples and that buccal sample should be noted as an omission from intimate sample.

The Chairperson replied that it was confusing because in the firearms/explosive test no DNA was being taken. She concluded that buccal sample should remain but the portion relating to firearms/explosive testing should be removed. The Committee was in agreement.

The addition of section 36A(fG) defining the acronym NFDD was noted.

Clause 1(f)
Gen Jacobs noted the addition of the words “or bodily sample” for clarification purposes in subsection 2.

The additions to the section on taking samples from children, included that buccal samples of a child must be taken by an authorised person who was of the same sex as the child and done in strict regard to decency and order.

Clause 1(g)
It was noted that the phrase in 36(A)(4) “with the consent of the person whose bodily sample was taken or” was to be deleted as it was redundant. Further, samples must be taken in a designated area deemed suitable. Gen Jacobs noted that some of this corresponded with the Criminal Procedure Act.

The Chairperson suggested adding another provision to child rights which would state that the person taking the test was of the same sex. The Chairperson wanted to ensure that the issue of gender versus sex was clear.

It was explained that sex was gene related, while gender was a choice of how you identify yourself. The official doing the test should be of the same gender so as to create comfort.

The Chairperson noted that the previous correction made in regard to sex was correct but in that case it was more difficult.

Mr Ndlovu stated that gender should be used because it was what people were comfortable with.

The Chairperson agreed and stated that sex must be changed to gender on page seven of the working document of the Bill. She recommended adding the Minister of Justice to 36(A)(5)(a)(ii) along with the Minster of Police and the Commissioner of Correctional Services.

Gen Jacobs expressed his concern that the Minister of Justice was not covered under the Criminal Procedure Act.

The Chairperson asked for the Legal Team to look at this section again to provide some clarity.

Although the sections of the ‘Fingerprints Act’ [Criminal Law (Forensic Procedures) Amendment Act (No 6 of 2010)] were included for clarity, the Chairperson noted that they were skipping over these pages.

Clause 2 Insertion of sections 36D and 36E in Act 51 of 1977
Mr George asked if the 30 day period to destroy the samples of those who were not prosecuted noted on page ten had been agreed upon.

 She mentioned that based on the morning’s presentations, the deadlines they give may not be achievable.

Gen Jacobs explained that the Legal Team had taken a look at the National Health Act and noted the prohibition in regards to taking buccal samples and that Act might clash with this Bill at some intervals. He asked if they could return with the problem solved in the final draft so as to avoid any situation where these pieces of legislation contradict one another.

The Chairperson agreed that this was a necessary step and noted that there may have to be a change made to the National Health Act to ensure this.

Gen Jacobs recommended not changing the National Health Act and instead inserting a provision in the Criminal Law (Forensic Procedures) Amendment Bill to state that samples could be taken for legal purposes.

Section 36D Powers in respect of buccal samples, bodily samples and residue tests
Gen Jacobs said Section 36D stated that an authorised person must take a sample for all those who were arrested for Schedule 1 offences, those released on bail (if not previously taken upon arrest), those upon whom a summons had been served for a Schedule 1 offence, those whose name appeared on the National Register for Sex Offenders and those convicted by a court in respect of any offence which the Minister had by notice in the Gazette declared to be an offence for the purposes of the subsection. The next section of the Bill declared that the authorised person my supervise the taking of a buccal sample if it was done by a medical practitioner or nurse.

The Chairperson stated that since they had changed the definition of authorised person to include medical practitioners and nurses that the use of the word in this section had to be changed as it was referring to police officers or a designated official. The Chairperson recommended that the legal team take a look at that and come back with an answer.

The State Law Adviser noted that Section 36D(2) and (4) were the same and that one of them should be deleted and replaced with a reference to the previous.

Gen Jacobs replied that this had been considered but the method used in this draft was more user friendly.

The Chairperson interjected and asked for them to come back with a firm suggestion as this was a technicality issue.

In Section 36D Gen Jacobs noted the addition to the title in  “Powers in respect of buccal samples, bodily samples and residue tests”.

Section 36D(5) stated that an authorised person who takes a bodily sample must within 30 days give them over to an authorised officer who would conduct a DNA analysis. The provision notes that nothing in the chapter prohibits an authorised person, medical practitioner or registered nurse from retaking a buccal sample if the first was insufficient.

Section 36D(8) now stated that DNA profiles derived from samples were only to be used:
- for purposes related to the detection of crime;
- for purposes related to the investigation of an offence;
- for purposes related to the conducting of a prosecution or defence;
- in the identification of unidentified human remains
- in the identification of a missing persons; or
- to exonerate a person convicted of an offence.

Gen Jacobs said with regards to intimate samples, a provision had been put in place that gives medical practitioners and registered nurses the right to take this type of sample – as the Committee had previously requested.

The Chairperson referred to Section 36D(5) and asked about the transportation of samples to the laboratories within 30 days. This transport was to be done by an authorized person, which included ordinary police officers. She questioned whether this was the right person to lay the responsibility upon, or whether the responsibility should lie with the station commander?

Ms Irish-Qhobosheane requested that the legal team be given more time to look at this and ensure they had the proper definition and to determine how they would hold the management at police offices responsible for this task.

The Chairperson agreed with Ms Irish-Qhobosheane that it needed to be sorted out as problems may arise when an official in a rural place was responsible for transporting the samples but did not have access to the tools necessary to get it there.

Mr Ndlovu suggested that there should be one high authority in the station responsible for delivery of the samples.

Ms Kohler-Barnard stated that they had earlier removed the section about the discharging and handling firearms, but it was present in this section. She questioned whether it had be reclassified, because as previously discussed, it did not fall under intimate samples.

The Chairperson explained that in this case it was not a definition but rather it was included as a necessary process when discussing transportation of samples and tests. The Chairperson wondered whether 36D(8)(e) was necessary or whether it could be moved to a different section.

Gen Jacobs continued with 36D(9) noting that it stated that the head of the Correctional Centre or Remand Detention Facility was responsible for ensuring that a buccal sample was taken from all the persons serving a sentence in a facility in order to address backlogging.

He noted the addition of 36D(10) which stated that once a sample was taken the head of the Correctional Centre or Remand Detention Facility must ensure that an authorised officer was informed within seven days and subsequently that authorised officer must ensure that the sample was collected within thirty days.

The Chairperson expressed concern with the responsibility being with the head of the Correctional Centre or Remand Detention Facility when it should be with SAPS.

Ms Irish-Qhobosheane clarified that the Bill should allow Correctional Services to take samples but the responsibility still remained with SAPS for the rest of the process.

The Chairperson responded by noting that sections such as 36D(9) put the obligation upon the head of the Correctional Service Centre and not upon SAPS which was concerning as it transferred liability.

Mr Ndlovu asked for clarification if the legal team was speaking about those who were already in Correctional Services or not.

The Chairperson confirmed that they were speaking about those within the Correctional Service system.

With that, Mr Ndlovu stated that he believed that put the responsibility upon Correctional Services.

The Chairperson noted that judging from their presentation, Correctional Services was not under the impression that it would be their responsibility.

Mr Ndlovu noted that SAPS and Correctional Services must work in cooperation for this to be a successful endeavour.

The Chairperson stated that it was ultimately SAPS responsibility to ensure it happened but they must notify and work closely with Correctional Services. This would require a small word change in the Bill.

Gen Shezi addressed the collecting samples of those in remand detention by stating that this fell under the scope of Correctional Services so clarification would be needed.

The Chairperson noted that there were three issues to be dealt with, the first being those in prisons. SAPS must start with those whose sentences expire the closest, those on parole, and those awaiting trial.

Mr Ndlovu reaffirmed the belief that it remained the responsibility of SAPS as they were using Correctional Services as a warehouse of information. He noted that it would be SAPS responsibility to document those awaiting trial.

Ms Irish-Qhobosheane addressed the Committee's concern about those on parole. There were about 60 000 people on parole and suggesting that SAPS had to collect all those samples might be difficult and unrealistic.

The Chairperson stated that she understood Ms Irish-Qhobosheane viewpoint but stated that these people on parole need to be documented because the re-offence rate was so high. It would be inappropriate for them to simply ignore this and leave it out of the Bill because it was deemed too difficult. The Chairperson recommend formulating a transitional arrangements section to address this. She stated that they needed a solid way to gather samples from those awaiting trial.

The Legal Team replied that the principal act already had its structures and to add a section for transitional arrangements would be clumsy.

The Chairperson retorted that that was their problem because it was something that needed to be done, a time frame for transitional arrangements was necessary.

[Short break]

Upon returning from break, the Chairperson reiterated that transitional arrangements must be looked at, even if it required adding a separate section at the end of the Bill. This section should have a time frame, upon which expiring, the section was deleted. The Chairperson went on to request quarterly progress reports beginning at the end of the month. This was to create transparency and to avoid falling into the mistakes of the past such as the Firearms Bill.

Mr George brought up legal implications, he questioned the scope of Schedule 1 offences and how they pertained to the Bill.

The Chairperson noted that it was the decision of the legislature as to what offences were covered under Schedule 1, but that it was possible to add offences.

Section 36E Samples for investigation purposes
This section explained that authorised persons may take a sample from someone suspected to have committed a Schedule 1 offence or if they believe that the sample would aid in the investigation by excluding or including one or more members of a group as possible perpetrators. If the person did not consent to the taking of a buccal sample, a warrant may be issued if there was reasonable grounds for believing that the person had committed a Schedule 1 offence and the sample would be of value to the investigation.

Ms Kohler-Barnard suggested adding to Section 36E(2)(a) the phrase “or any other crime deemed reasonable by the Minister” in order to have the ability to expand the list without completely overhauling the legislation.

The Chairperson noted her suggestion and asked the legal team to check if any previous provisions in the Bill covered this.

The State Law Advisor spoke noting that she had two concerns, the first of which was the wording of section 36D(6)(a) when the wording “insufficient for DNA” was used. It was recommended that it be changed to “not suitable or not sufficient for DNA analysis”.

The Committee agreed with this change.

Her next concern was related to penalties for the misuse of DNA samples or profiles which was covered in prior deliberations. She referenced 36D(8)(c) which did not contain the same language as previously deliberated sections and made no mention of fines for juristic persons. She believed that this section should match up with the “Fingerprint Act” [Criminal Law (Forensic Procedures) Amendment Act (No 6 of 2010)].

The Chairperson replied the Committee put this section in to be explicit and map out serious punishment. She noted as an example soccer stadiums being built despite being against regulations and despite the threat of fines. This was because the fines were not sufficient enough to detract builders from making the stadiums. This was why the Committee wanted to be explicit in this Bill with their punishment for misuse of DNA samples and profiles. If a juristic person was offering a SAPS officer money to hand over a DNA sample it would be a significant amount, significant enough for someone to risk their career, that was why the Committee was explicit in ensuring that those who chose to do such things were accountable. The Committee agreed with the State Law Advisor on the first point but disagreed about the second point.

Gen Jacobs continued that this section benefited the police as it was more likely that someone would volunteer their DNA information rather than have a warrant sent out for them to be arrested and go through the system. This section should be looked at in a more positive light as it would provide an opportunity for cooperation from persons volunteering to have samples taken.

Mr George asked whether it was possible for people to pretend to have their dignity ruined during the taking of samples as a loophole for use in court.

The Legal Team responded that this was not a viable option as consent was given.

Gen Shezi then provided the Committee with a demonstration of how to properly use the sample kit. The demonstration sample kit was the same one that would be used to train officers and during actual implementation. An emphasis was placed on the area on the form where the person signed off and gave consent for samples to be taken.

After the demonstration the deliberations continued and Mr George once again expressed his concern with the attitude of the officers administering the test. He believed that 90% of officers would fail the attitude test. He stated that professionalism in sample taking was a necessity.

The Chairperson mirrored the Committee's concern in noting that the issue of training all police officers must be reconsidered. There was a fear of abuse of the training system as well as inflated costs to retraining. The time period given of 9-15 years to complete all training was too long, it would prove to be a burdensome and tedious process. She asked why they should waste money on training people who should not be doing it in the first place. She suggested that a strategy be made to identify the police officers who would be trained.

Clause 3 Amendment of section 37 of Act 51 as amended by section 1 of Act 64 of 1982 & section 3 of Act 6 of 2010
In Section 37 ( Powers in respect of body-prints and bodily appearance of accused and convicted persons), Gen Jacobs stated that the word ‘blood sample’ had been replaced by ‘intimate sample’ throughout the section as it was now defined earlier in the document.

The Chairperson asked what sub-section (c) had to do with DNA and stated that the sections regarding markings on bodies was not DNA related.

The Members agreed that it did not fit in that section.

Gen Jacobs replied that this section was present as a result of the changes that been brought about in bulk from previous deliberations. The provisions in section 37 were previously part of the Act - they were just realigned in this case.

Mr George responded that it seemed out of place and did not link up to the next parts of the document.

The Chairperson asked if it was referring to drugs and alcohol because it could not be referring to DNA.

The Legal Team noted that this section was not a full amendment rather it was in place in the document merely to assist the Committee and provide more information and give the Committee perspective.

The Chairperson said that the blood being taken in this section was not referring to blood being taken for DNA purpose, rather it was to determine whether someone was under the influence of alcohol or drugs. The Chairperson noted that the words ‘blood sample’ should not be changed to ‘intimate sample’ as it was mixing two different subjects.

Ms Molebatsi stated that the entire section was not applicable to DNA.

The Chairperson agreed and noted that it should be removed because the Committee did not desire to change that part as it could create conflict with the Department of Justice. The Chairperson asked the legal team to delete those parts from section 37. The members agreed.

Clause 4 Amendment of section 212 of Act 51 of 1977
Gen Jacobs explained that ‘collection’ was added to the list of evidence that may be certified via an affidavit.

The term ‘bodily sample’ was added to paragraphs (a) and (b).

The Chairperson suggested adding in ‘crime scene sample’ to go along with ‘bodily sample’ as they were both independently defined earlier in the Bill. The Committee agreed. The Chairperson noted that in sub-section (6) crime scene samples and bodily samples should be included in the wording as well, it was requested of the legal team that the entire section be reevaluated to address these concerns.

Gen Jacobs confirmed that ‘crime scene sample’ would be added wherever ‘bodily sample’ was present.

Clause 5 Amendment of section 225 of Act 51 of 1977, as amended by section 5 of Act 6 of 2010
Gen Jacobs noted that many of these sections were written years ago and were unnecessary now.

Mr George stated that the only part he deemed to be irrelevant was 225(b) which spoke about marks on the body. His belief was that the sections regarding body-prints and fingerprints were still relevant.

The Chairperson once again reiterated the point that this was related to drugs and alcohol test and not to DNA. Those parts that were not relevant should be deleted.

Clause 6 Insertion of Chapter 5B in Act 68 of 1995 of Chapters 5A and 5B in Act 68 of 1995
The Chairperson noted that this clause dealt with the South African Police Service Act, 1995, after section 15D. She asked the State Law Advisor if there were any questions or concerns from their perspective.

The State Law Advisor noted that there may be some issues with the clauses that the Committee asked the legal team to look at again but that those questions would come up at a later date.

The Chairperson suggested that the meeting end so that the following day could be a fresh start.

Ms Kohler-Barnard commented that every time it was suggested to add ‘crime scene samples’ into the wording of the Bill there was lots of heads shaking in disagreement from the legal team side and perhaps it should be further discussed.

The Chairperson commented that the team was getting paid to advise and that they had to speak up in order to be effective. The legal team must raise their concerns as issues arise because according to the minutes they had no problem. SAPS had the same issue of not raising any issues until afterwards.

The legal team responded that they would reconsider the wording and come back with a conclusion that addressed their concerns.

The Chairperson reiterated that no matter which body they were representing they must raise their issues because the Committee was unable to read minds. The Chairperson requested that by Tuesday 30 August the sections be cleaned up and written in a way that was agreed upon by all parties.

The meeting was adjourned.