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

Meeting report

The Chairperson noted the five police officers killed in Cape Town over the past week and stated that the fthe Committee would need to engage with SAPS on the matter to fully understand the causes and to better avoid such incidents. She conveyed the Committee’s condolences to the families of the deceased. She noted that the criminality audit had been completed and approximately 1 440 SAPS members had a criminal record. The findings would also be discussed at a future time.

State Law Adviser opinion
Mr Sisa Makabeni, State Law Adviser, explained that the opinion dealt with a number of issues. The first was whether the 15(f) clause allowing for a database to identify suspects was constitutional despite its retrospectivity. The second was whether the proposed period of three years for retention of the DNA profile of persons acquitted or pardoned was constitutional. The last was the constitutionality of the collection of DNA samples from SAPS members.

Under South African Law there was a presumption of law only operating prospectively. This may be rebutted expressly by legislation. The Constitution also guaranteed the right to a fair trial, and this included the right not to be prosecuted for an act which did not amount to a crime at the time of the offence. The courts had indicated that legislation was required to have a rational connection to a legitimate purpose and that nothing in legislation could conflict with the contents of the Bill of Rights. Rights could therefore only be limited by a law of general application and only when justifiable. Constitutionality of an alleged rights infringement followed two stages. The first was whether or not a right was in fact being limited and the second was whether or not that infringement was justifiable.

Reasonable and justifiable limitation, as per Section 36 of the Constitution, involved a proportionality analysis of competing rights. This analysis would consider the link between the infringement and the purpose it served, as well as the existence or not of less restrictive alternatives. With regard to the proposed provision, there were a number of infringements.

Section 9 provided for equality before the law. Section 10 guaranteed the right to dignity. Freedom and security of the person is also guaranteed. Section 14 (a) guaranteed the right to privacy, including the right not to have one’s body or property searched. The proposed Bill infringed on these rights but would operate with general application. It would serve to bring justice to criminals and to avoid crimes yet to be committed. It was opined that this would amount to a reasonable and justifiable infringement of the listed rights.

Other open and democratic societies had similar laws relating to the collection of DNA. The provisions did not create new offences but did serve to facilitate the identification of criminals who committed their crimes prior to the passing of the Bill. A court judgment was cited that pointed out that criminals breached their civic duties as well as infringed the rights of their victims and that this struck at the core of South African society. In doing so, they should expect measures to detect their actions which may infringe upon their own rights.

The second question dealt with the proposed period of three years before the DNA of acquitted persons would be removed from the register. The provision also applied to convicted persons who were subsequently pardoned or had their records expunged. This once again could only be limited by a law of general application and had to be justified according to a Section 36 limitation analysis.

The retention of DNA information for a period of three years for people who had been acquitted was deemed to be an infringement on the rights to dignity, security and freedom but served to assist future investigations. Although an acquittal may be handed down by the courts there had nevertheless generally been good reason for prosecution in the first place and the retention of the accused’s DNA records was a safety measure. There was no automatic prejudice against the accused as the DNA records would only be used for prosecution purposes for future crimes if it was appropriate to do so. The retention of information for convicted persons who had their sentences expunged or were pardoned would not be done on the same database as their criminal records and there would be no prejudice. The three year period was consistent with that in other jurisdictions and the provisions of the Bill distinguished between adults and minors whose criminal records had been expunged.

There was a United Kingdom judgment considering the same question of a blanket policy of retention regardless of conviction in light of the European Convention of Human Rights. The court held that that the indiscriminate nature of the policy failed to strike a balance between the rights of the accused and the state’s interests. It was therefore deemed to be unnecessary. The decision was made in light of the potential for misuse and the making public of such records. Scottish legislation required immediate destruction of DNA samples upon discharge, unless still suspected of a crime or if implicated in a violent or sexual crime in which case the period of three years was used. Canadian legislation provided that DNA of convicted persons was kept indefinitely. Upon acquittal, it had to be removed. Conditional discharges required retention for a period of up to three years. DNA profiles from minors would be retained for three or five years or even indefinitely, depending on the nature of the offence.

In view of the international jurisdiction and the foreign jurisdiction in Scotland and Canada, it was concluded that the provision was consistent with policies found in similar democracies as well as best practice.

On the final question about the collection of DNA from all members of the SAPS, the rights of dignity, privacy and bodily security were once again considered, as were labour rights. The presumption against retrospectivity was also relevant as current members would be subject to terms not in existence at the time of contracting. The enforcement of an employment requirement without permitting engagement with unions or collective bargaining would be problematic.

Labour market policy had to be considered before the passing of a new Act. It would be possible to provide for the taking of samples from future employees. However it was advised that proper consultation be undertaken with the relevant labour unions before imposing this on existing members.

Discussion
The Chairperson noted that the Act did not limit the application of DNA sampling of prisoners to Schedule 1 offenders. If this was remedied, the Committee would be satisfied that there was justifiable limitation of rights.

Mr M George (COPE) asked about DNA samples being retained for three years and how accessible they would be to the public.

The Chairperson emphasised the need to differentiate between DNA samples and DNA profiles as the samples would only be kept if they were crime samples.

Maj-Gen Adeline Shezi, Head of Quality Management at SAPS Forensic Department, said that there would be a database of DNA profiles and that this would only be accessible to persons with appropriate clearance.

Maj-Gen Philip Jacobs, Head of SAPS Legal Services, explained that the uniform time frame of three years from acquittal was based on UK precedent and in spite of differences with Canadian law.

The Chairperson noted that Canada was a constitutional democracy and the UK was not, as well as that the policy document preceding the Bill sought to make DNA retention subject to definite time frames.

Gen Jacobs said that there were practical considerations and that although time frames varied from jurisdiction to jurisdiction, retention itself was common to them all. He acknowledged that the Canadian courts were often followed in South Africa but maintained that the consistency with UK law in this instance was justifiable. He said that an alternate period of 18 months was also acceptable.

Ms Jenni Irish-Qhobosheane, Secretary of Police from the Civilian Secretariat for Police, said that there needed to be uniformity throughout the Bill and that it was important to bear in mind the perspective of the Constitutional Court. The three year period needed to be justifiable not in light of the potential for re-offenders, as that violated the presumption of innocence doctrine, but more in terms of practicality. For convicted criminals there was naturally a longer period, and the policy on this was 16 years. This was based on the belief that if a criminal had not re-offended within 16 years, they were unlikely to do so. This had been reduced to 10 years since the policy stage but there were no major concerns on this and the main concern was over the retention of DNA profiles for persons that had been acquitted.

Mr George said the legal opinion had not assisted him. He believed the three year period was defensible on the grounds that an acquittal did not always amount to innocence, whereas 18 months seemed too short. He said that if the DNA profiles were kept in such a way so as to exclude access from unauthorised parties, the limitation on privacy was not significantly more for three years than it was for 18 months.

Mr V Ndlovu (IFP) said that there seemed to be a difference in opinion between three years and 18 months. He asked if the 18 month was even practical, and said that if it was not, it was less defensible than the three month period.

The Chairperson said that it did not take months to capture a DNA profile and also noted that in foreign jurisdictions there were longer periods for violent and sexual offences.

Maj-Gen Shezi said that removing a DNA profile took a moment of pressing a button but said that it was problematic to apply blanket retention without distinguishing between categories of crimes. She also noted that analysing DNA was costly and that there were no time constraints on retention but there were financial implications. In the instance of re-offenders the same samples were taken time and time again. Retention was therefore prudent.

The Chairperson said that the type of offence committed should inform the time period and that only certain kinds of offences required retention. She said that it was acceptable to rely on UK jurisprudence but that the Constitutional Court would be more likely to rely on the Canadian courts. She asked how valuable it was to keep unnecessary profiles and whether or not a larger database would increase delays.

Maj-Gen Shezi said that a comparative search increased the odds of finding a match. She explained that in Canada the DNA samples of convicted persons were retained indefinitely, unlike in the UK. South Africa’s Schedule 1 was comprehensive and that limiting it for this purpose would not be helpful.

Ms Irish-Qhobosheane said that the concern over repeat offenders was irrelevant for acquittals. The three year period would therefore have to be defended on the points that it was cost-effective, practical and not too invasive of the rights of the individual.

Mr George suggested that the clause be amended so that the samples taken from acquitted persons were removed as soon as practically possible but no later than three years after acquittal.

Mr Ndlovu said that it had to be accepted that in South Africa an acquittal was not the same as a ruling of innocence. There existed a very real likelihood that a prosecuted person was guilty despite having been acquitted, and that this aided in the justification of retention.

The Chairperson agreed that persons could be acquitted on technicalities but also that they could be acquitted on grounds of innocence. She said that treating an innocent person as guilty for three years was problematic and potentially indefensible. She said that the Committee could not legislate for weaknesses in SAPS and that would not be accepted in a court of law as a justification for limiting rights. The practicalities of including all Schedule 1 offences needed to be examined and that the restriction of the retention to violent and sexual crimes, possibly including burglary, should be considered. The length of court cases in South Africa were so long that a period of three years following acquittal was in reality a period of five to six years.

On the final matter of inclusion of all SAPS members on the database, the Chairperson took on board the input from the State Law Adviser. She said that SAPS could be proactive and begin welcoming voluntary DNA sampling from existing members while the entirety of the clause was discussed with stakeholders.

Mr George said that to insist on the DNA of new members being captured would be similarly problematic in that it amounted to a mitigating factor for poor SAPS recruitment. SAPS members were still citizens and that unless they were guilty of a crime, they should not be considered in the same light as criminals.

The Chairperson said that conflating DNA sampling of criminals, the accused and SAPS members was incorrect. Recruits had their fingerprints taken upon employment and this was no different from DNA sampling. There was a criminal database and an elimination database and the two needed to be kept separate. She encouraged SAPS and the unions to facilitate voluntary donation of samples so as to avoid legislation. She said that an elimination index would go a long way to curbing criminality in SAPS.

Familial Searching briefing by Parliamentary Researcher
Ms Nicolette van Zyl-Gous, Parliamentary Researcher, began by explaining that a familial search was one that could reveal partial match profiles that could aid in identifying close biological relatives. Familial searching only identified post-order relatives such as siblings or children. It had proven malleable in cases involving serial offenders and had led to many successful prosecutions around the world especially in the United Kingdom. Despite the obvious benefits there were a number of human right implications. It only provided the identity of offenders already in the database reasonably related to perpetrators.

The countries using familial searching did not have legislation to this effect but did have policy guidelines in place. In the USA, individual states retained discretion to use it or not. The current DNA Bill only permitted familial searches for missing persons or remains but there were nevertheless human rights concerns. The UK had permitted familial searching since 2003 and in the interim had conducted about 200 searches and solved about 40 crimes as a result. A key component to this success was that there were age and geographical location factors used to assist in providing lists of potential relatives.

The USA did not have federal or national familial search structures. A number of states utilised it, but others prohibited it expressly. Maryland had banned it on grounds that it would have the unintended purpose of implicating minorities in crimes on the basis of their race. Familial searching in California was controlled by the Attorney-General and restricted by policy. Permission had to be granted by a committee in order for a search to be conducted. Permission would be granted if relevant to a serious crime such as sexual assault or homicide. Searches necessitated a certain volume of unidentified DNA from a crime scene. California faced certain limitations as only convicted offender samples were tested against, rather than the national DNA database. Unique software was used to measure results against a kinship index similar to paternity tests. All results were qualified so as to ensure that persons identified by the test were not considered to be suspects but were reasonably believed to be related to the perpetrator. DNA samples had to be seized n a lawful manner, including abandoned property by a person such as a soda can.

An example was given of a case in Los Angeles where eight people were killed and one raped by the same perpetrator. Upon the emergence of a ninth victim a DNA sample was found and measured against the DNA database which yielded no results. Following a familial search, there were again no results. Some years later the search was repeated and a match was found. The perpetrator’s son was found and following from this the perpetrator was identified and investigated. Sufficient evidence emerged to prosecute and the suspect was awaiting trial for more than ten counts of murder. No judgments had been handed down regarding the legitimacy of familial searching.

The human rights concern was that there was a premise of persecution for family members of suspects. This discrimination on the basis of identity rather than behaviour implied a violation of the right to equality. In spite of the potential for criminal justice, many countries did not permit familial searching as it was seen as an infringement on the right of the family to privacy. There were concerns over genetic surveillance and the potential for abuse of power. There was also the potential for already existing discrimination against specific racial groups to be exacerbated.

One of the limitations in the South African context was that the existing infrastructure was inadequate for identifying relatives. Separate software would be required to give effect to this. It is also a resource intensive process requiring highly skilled operators, was more expensive and more time consuming than standard DNA searches. It did not make accommodation for adoption or children born out of wedlock.

Implementation of familial search procedures required unique software and stringent policies relating to privacy of results, frequency of use, evidentiary weight, categories of searches, training of officials and the rights of family members. It was important for the Committee to be cognisant that these searches should only be used for missing and unidentified persons indices. It should also be stipulated that policies needed to be established prior to use. Additional research into the challenges should be conducted. The ambit of familial searches should not be expanded without full and proper consideration for the implications.

Discussion
The Chairperson said that there were legitimate concerns over SAPS capacity and the listed challenges.

Mr George commented that in light of the challenges it did not seem wise to expand the ambit of familial searches beyond missing and unidentified persons. He asked if there were better facilities available to SAPS than the existing ones. He wanted to know if SAPS had the option to upgrade equipment or if they were doing the best they could in that respect.

The Chairperson noted general agreement that even without familial searches being included, passing the Bill would be a challenge. Any changes to the Bill would go through Parliament. She asked for the difference between the established software and SAPS software to be discussed.

Maj-Gen Shezi said that the familial search software used in the USA was protected and that there was no intention to introduce extended familial searches that would necessitate use of the additional software. The existing software was appropriate for SAPS’ purposes regarding missing and unidentified persons. It was not impossible to conduct such searches but this was not seen as necessary.

The Chairperson agreed that the inclusion of familial searches at this stage was unnecessary and that in the future when better resources were available, the matter could be readdressed. The limitation to missing and unidentified persons was therefore adequate for the moment.

Latest proposed changes to Working Draft of the Bill
Maj-Gen Jacobs explained that it was proposed that Section 113 of the Firearms Act be repealed, but not the subsection dealing with primer and explosive residue. This was supported by the Department of Justice.

The Chairperson said that this satisfied the Committee’s concerns raised in previous meetings.

Maj-Gen Jacobs began from the beginning of the Bill reviewing the drafting changes made in order to satisfy the Committee’s concerns raised in the previous meeting.

Mr George queried the need for samples to be taken by a person of the same gender as the subject as was required throughout the Bill.

The Chairperson said that this was the same standard required by fingerprint legislation and that there was no reason to expect a lower standard for the purposes of the Bill.

Ms Irish-Qhobosheane explained that where medical practitioners were empowered by the Bill, gender was not a consideration but where the Bill empowered authorised persons such as SAPS members to take samples, it was important to consider gender so as to make subjects more comfortable.

The Chairperson was still not satisfied with the contents of Section 36A(5)(a)(ii) on Page 8 as the designation of areas for Justice and Police should not be up to the Minister.

Mr Ndlovu agreed that the Minister of Justice could not be empowered to designate its own areas.

Mr George said that he believed that designating specific areas for Correctional Services and SAPS would confuse matters such as the commission of crimes in prison.

The Chairperson explained that commission of crimes was not being discussed, only the taking of buccal samples and who was entitled to take them in each area. She asked if the Minister of Police could make regulations that directed Justice on where samples could or could not be taken. There could be recommendations on requirements such as privacy and standards of sampling but that limiting of Police and Correctional Services should not be allowed.

Mr Makabeni said that he did not see a problem with Parliament delegating its authority to impose guidelines to one Department Head. He agreed that the phrase “or instruction made by the Commissioner of Correctional Services” should have been excluded.

The Chairperson moved for amendment to subsection Section 36A(5)(a)(ii) on page 8 so as to reflect the concerns of the Committee. She also requested that subsection (b) be possibly moved to another section as legal requirements for disposal of bio-medical waste were not subject to SAPS discretion. It needed to be made perfectly clear under which circumstances samples would be taken at court rather than in prison or at a station. She accepted that the retrospectivity of the Bill meant that persons out on bail would appear in court and that at that time a sample could be taken but added that bail terms usually required that persons report to police stations upon which the sample could be taken immediately.

Ms Irish-Qhobosheane said that it was important to have a section relating to the disposal of bio-medical waste but agreed that it should be moved or even given its own section.

The Chairperson discussed Section 36D(1) saying that it implied the need for more than one medical practitioner in the taking of a bodily sample, as medical practitioners were included in the definition of “authorised person”. She said that it may have been simpler to give medical practitioners their own definition.

With further reference to Section 36D, the Chairperson wished to discuss Schedule 1 offences. She asked if all the offences listed therein should be covered by the Bill.

Mr George said that in the event of public violence, the Bill should apply.

The Chairperson queried whether it was practical to oblige SAPS to take DNA samples from all people arrested in respect of public violence.

Maj-Gen Jacobs said that the relevance of DNA sampling for solving crimes should be the main factor in narrowing down application of Schedule 1. He said that bestiality could be excluded from the Bill’s ambit.

The Chairperson asked if theft was not too broad to be covered, as the Bill already would apply to robbery and breaking and entering.

Maj-Gen Jacobs suggested that DNA was not very applicable to theft and that it could be excluded.

Maj-Gen Shezi revealed that there were many instances of theft in which DNA evidence was gathered and could benefit from inclusion.

The matter was left open by the Committee.

The Chairperson went on to say that revealing stolen property should not require DNA testing and neither should fraud, offences relating to coinage or forgery. 

Ms Irish-Qhobosheane agreed that the focus should be on contact crimes.

General Jacobs said that the catch all clause in Schedule 1 relating to offences bringing a punishment of imprisonment for more than six months without the option of a fine served to include non-listed statutory crimes. However, it was agreed that this was too broad to be practically included.

Ms Irish-Qhobosheane said that DNA sampling for escapees from lawful custody should be included as this often occurred en route to the police station and before other sampling could be done.

Maj-Gen Jacobs said that the inchoate crimes should also be included due to the potentially close link to contact crimes such as murder.

Mr George said that this was problematic as not all offences in Schedule 1 had been included. Including the final offence in Schedule 1 would lead to DNA sampling for conspiracy to commit fraud but not fraud itself.

The Chairperson said that it would be best to list offences in a list specific to the Bill rather than referring to them collectively as “Schedule 1” offences. She asked why Section 36D(1)(i) referred to people arrested for an offence rather than one charged with such an offence. It was impractical and onerous on resources to take samples from people who would be released soon thereafter without being charged. An arrested person would have to be charged within 48 hours and that if this was not done there was no point in having taken their samples.

Mr Makabeni asked if this did not complicate the process as charged people would need to be sampled at court.

The Chairperson explained that being charged was an SAPS procedure not a court procedure. The arrested party would be charged at the police station and upon that a sample would be taken.

Mr George said that arrested people should have their samples taken, not just those who were charged as they should be charged in any case.

Mr Ndlovu said that there were instances of unnecessary arrests that did not necessitate sampling. Sampling should therefore only be required once charges were laid.

Ms Desiree Swartz, Parliamentary Law Advisor, raised a distinction between being charged after 48 hours of arrest and being charged in a court of law and noted that this distinction should be observed in the text of the Bill.

Maj-Gen Shezi examined Section 36D(8)(b) - (d), saying that there was no need to specifically include crime scene samples. The clauses related to bodily samples, which in some cases may be the same as crime scene samples, but the current wording was adequate.

Maj-Gen Jacobs noted that in (c) an offence was created for misuse of a bodily sample and that he believed this should be extended to include crime scene samples.

Maj-Gen Shezi agreed that this could be taken under consideration.

The Chairperson raised concerns over Section 36D(9), saying that the Head of Correctional Services needed to be included by proper title unless the National Commissioner was expected to have contracts with each and every facility head. The clause also required the taking of samples for persons imprisoned for any offence, but this was not cognisant of the limitation of the Bill to particular crimes. She asked if Remand Detainees should not be dealt with separately. She referred to Section 36D(7)(a) which was made subject to paragraph (b) which appeared to be redundant and should be amended.

She raised the question of how persons under correctional supervision would be dealt with. The Bill made accommodation for persons being transferred from prisons to correctional supervision but not for those already under correctional supervision.

Maj-Gen Shezi commented that such persons would be required to check in to police stations and at that stage they could be sampled.

The Chairperson said that this needed to be specifically included in the Bill.

Mr Amichand Soman, Director of Legislation: Civilian Secretariat of Police, proposed that correctional supervision be included in Section 36D(9) after Correctional Centre or Remand Detention Facility.

The Chairperson agreed but asked what the practical implications were as such persons did not necessarily visit police stations as they were permitted to check in with their parole officers instead. The SAPS legal team was instructed to consider the matter. She emphasised the need for a transitional arrangement. The interaction with correctional services would only last until the backlog of already existing persons was cleared, and the relevant sections should therefore be moved into the portion of the Bill dealing with the transition. Persons under correctional supervision could simply be identified with the help of correctional services and sampled by SAPS as efficiently as possible. Thereafter the main body of the Bill would deal with future parolees and probationers.

The Chairperson asked for 36D(11) to be deleted as it was no longer required.

The Chairperson queried if crime scene samples should also be included in the amendment to Section 212 of the Criminal Procedure Act.

Maj-Gen Shezi said that she did not take issue with the suggestion as they were included in subsequent provisions.

Mr Makabeni discussed the insertion of Chapter 5B into the SAPS Act; specifically whether or not the term ‘volunteer’ required to be defined as it was no longer being used.

The Chairperson delayed a decision on that until the relevant section was reached.

Upon a reading of Section 15G on page 40, the Chairperson asked if there should not be mention of a sub-index relating specifically to children.

Maj-Gen Shezi said that this was possible as the systems were being updated in any case. She added that children on the other indices would be treated differently anyway.

Maj-Gen Jacobs suggested that accommodation be made for such sub-indices within each main index.

The Chairperson raised the issue of custodianship of the database as opposed to analysts. Part of the credibility of the database would be independence of the two positions. She mentioned discomfort relating to the contents of Section 15 I and the Arrestee index. Subsections (2)(a), (b), (d) and (e) should possibly fall under special dispensation given that the person involved had been either acquitted or granted a nulle prosequi and that there was therefore no justification for retaining their DNA.

Maj-Gen Jacobs said that it was important to distinguish between cases withdrawn after the accused had pleaded and those before. He added that a certificate nulle prosequi was proof that he would not be put on trial for that particular crime.

The Chairperson asked if (a), (b), (d) and (e) could be listed separately along with a mechanism by which persons involved could apply for their DNA to be removed from the register as soon as practically possible. It was emphasised that a distinction needed to be drawn between cases of persons discharged at preparatory examination stage and persons whose case had actually been considered either by SAPS or a court of law and an active decision had been taken that they were not found guilty. Where the question of guilt went unasked, there was a case to be made for retention of samples, but upon a ruling in favour of acquittal or a certificate of nulle prosequi was granted, the person was seen as innocent in the eyes of the law. She asked if it would not be best to include a mechanism by which such persons could apply for immediate removal of their samples from the database. It was agreed that such application would be made to an authorised officer and that there would be board oversight.

Mr George stated that the relevant board would not always be sitting and that they should therefore not be the recipient of applications. The authorised officers should be responsible for this.

The Chairperson added that the board’s supervisory capacity meant that they would need to be kept informed of applications. There might be good reasons for rejecting an application which were not known by the authorising officer. She therefore concluded that a copy of the application would go the board and another to the authorising officer upon which the person involved would be informed of its outcome.

Subsection (c) would not be removed, due to the possibility for a charge being withdrawn on technical grounds rather than any relating to innocence. However, it would not be subject to application by the person involved.

The Chairperson asked if the period of retention should be shorter for accused who were children, possibly only 18 months. She asked if the application process should be extended so as to include them. She emphasised that this related only to children who had not been found guilty.

The Committee decided to reduce the period to 12 months, also allowing for application in certain cases for immediate removal.

She noted a conflict between 15K(2)(e) and 15K(3). She did not feel that either should be removed merely than the former be aligned with the latter. She wondered what the scope was for a name to be moved from the elimination index to the investigative index. She asked if the word “indefinitely” could be removed from 15L(3) and “migrated in accordance with this Act”.

The session was concluded.