Criminal Law (Forensic Procedure) Amendment Bill: Deputy Minister’s briefing

Ad Hoc Committee on Criminal Law (Forensic Procedures) Amendment Bill

20 January 2009
Chairperson: Ms M Sotyu (ANC)
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Meeting Summary

The Deputy Minister of Justice and Constitutional Development provided the Committee with a comprehensive background to the current legislative drive concerning forensic procedures and gave reasons to support the need to urgently promote the institution of holistic crime fighting measures.

The Office for Criminal Justice System Reform had established from research that there was a need for a coherent and holistic legislative framework for the collection, storage and use of fingerprinting and DNA evidence. A high number of criminal cases remained unsolved because the perpetrators could not be detected. In addition there were high numbers of cases withdrawn before reaching court whilst those brought to court resulted in very low conviction rates. There was an urgent need to promote legislation that would positively impact on the investigation and adjudication stages within the Criminal Justice System, beginning at the crime scene level.

The Deputy Minister pointed out that the present Criminal Procedure Act had become outmoded as technological advances now make it possible for DNA evidence to be gathered. An audit had established that the current legal regime and forensic capacity were inadequate for the establishment of a DNA database with profiles from all suspects arrested and profiles arising from crime scenes. He provided the Committee with a comparison of statistics of DNA profile hits in the United Kingdom’s DNA database and South Africa’s DNA database. These statistics revealed the limited DNA database available to SAPS as compared to law enforcement agencies in the UK.

He estimated that implementing these changes would cost Treasury approximately R8 to 9 billion considering the sophisticated technology required and capacity-building costs. The Committee was fully briefed on the Bill’s main features including the new legislative framework for forensic procedures.

Members expressed their unequivocal support for the legislative direction to be taken. There were, however, concerns that had been raised by the State Law Advisers about potential infringement of constitutionally guaranteed human rights and freedoms. These arose with respect to those provisions of the Bill that will allow the retention of DNA samples obtained from suspects even after the suspect has been exonerated by a court of law. The Deputy Minister cited a recent judgment in the House of Lords quoting Lord Steyn’s reasoning on this issue in the matter of S and Marper vs. the United Kingdom. He stressed that the Department was willing to test the limits of the constitutional claw-back provisions that permit certain rights and freedoms to be set aside in certain instances. He believed that such evidence should be kept as experience had shown that it could lead to successful prosecution of offenders at a later stage.

Some members of the Committee registered their disquiet over these provisions citing likely constitutional challenges. The Deputy Minister argued, however, that this controversy arose in a small part of the legislation when viewed in its entirety and should not be magnified beyond the principal objectives of the new law and the transformational imperatives that informed the legislative process. The meeting was adjourned on the note that public comments may be invited by advertisement whilst the Committee would arrange a visit to one of the forensic laboratories in either Gauteng or the Western Cape.

Meeting report

Election of Chairperson
The meeting commenced with the nomination and election of Ms Maggie Sotyu (ANC) as Chairperson.

Briefing by Deputy Minister of Justice
Mr Johnny de Lange, Deputy Minister of Justice and Constitutional Development, highlighted the importance of the Bill. He stressed its urgency in the context of the fight against crime and in making the criminal justice machinery effective. After the Bill had been approved by Cabinet, it had been published on various websites including PMG’s website for comment. The Department had received a total of 95 submissions on the Bill and these had been sent to Parliament. These submissions had been made after the drafting of the Bill and were made available to Parliament as a basis for further debate on the Bill. Dr Lirette Louw had also looked at how various countries had dealt with the issue of biometric evidence in a comparative study. This research could assist the Committee to understand the issues pertaining to DNA evidence. Mr De Lange introduced his team comprising Advocate Deon Rudman, Head of Legislative Drafting; Mr Johan De Lange, Principal State Law Advisor; Dr Lirette Louw, Consultant drafter; Mr Du Toit, Divisional Commissioner of Forensics: SAPS, and a Department of Home Affairs representative.

In his presentation to the Committee, Mr. De Lange began with a background to the process leading to the new law. Cabinet had adopted a seven-point-plan for transformative changes to the criminal justice system in November 2007. Its main objective was to achieve a new, integrated, dynamic, coordinated and transformed criminal justice system. The Bill would address weaknesses in the nation’s forensic crime fighting capacity through a coherent all encompassing and holistic legislative framework for the collection, storage and use of fingerprint and DNA evidence. These changes would bring our criminal justice system in line with other countries that are successful in the fight against crime. Transforming the Criminal Procedure Act was considered a priority in line with point number six of the Criminal Justice System (CJS) Seven-Point-Plan. This dealt with the implementation of key priorities for the component parts of the CJS that were a part of or had an impact upon court process. This meant that improvements had to be effected in capacity relating to personnel, infrastructure, resources and appropriate legislative frameworks.

The need to urgently promote legislation arose as a consequence of certain problems in the CJS. A high number of perpetrators were currently not being detected through crime scene investigation procedures involving the collection of fingerprint evidence. Reliance on oral testimony tended to be unreliable, as witnesses were reluctant to pursue these matters which led to a large number of cases being withdrawn before reaching court. Likewise, a large number of cases were withdrawn whilst still in court resulting in very low conviction rates. There was an urgent need, therefore to promote legislation that would have a positive impact on the investigation and adjudication stages within the CJS, especially at the crime scene level. The current shift in global practice from eyewitness evidence to real evidence combined with the high numbers of unsolved crimes in South Africa demanded a new crime fighting strategy. Unfortunately, the immediate problem in the new crime fighting strategy was the lack of capacity in respect of personnel, infrastructure and resources as well as the lack of the requisite legislative frameworks.

The present legal position was unsatisfactory as shown by section 37 of the Criminal Procedure Act (CPA), 1977. This provision was the only statute that dealt with ascertainment of bodily features of an accused person. Taking fingerprints by the police was discretionary in all situations and this provision required the destruction of fingerprints and other records if a person had been found not guilty of if no prosecution had been instituted against a person from whom such evidence had been collected. There was no mention of the collection of DNA evidence since it had been drafted long before developments within this field. The CPA was nonetheless regarded as the legislative source for the current gathering of DNA evidence. An audit conducted by the
Office for Criminal Justice System Reform (OCJSR) in respect of fingerprints and DNA evidence had identified three major fingerprint databases in South Africa. However, due to legal reasons and information technology considerations, law enforcement officials could only access the SAPS AFIS database for criminal investigations. The SAPS Automated Fingerprint Identification System (AFIS) database has 6.4 million fingerprints and a latent fingerprint database, that is, prints lifted from crime scenes belonging to suspects who are unknown. The Home Affairs National Identification System (HANIS) which is inaccessible to SAPS contained 31 million prints belonging to citizens, 500 000 prints from immigrants, refugees and deportees. Two million prints from immigrants, refugees and deportees were in the process of being loaded onto the HANIS database. The electronic National Transport Information System (e-NaTIS) of the Department of Transport that was also inaccessible to SAPS, had 7 million thumbprints. The Department of Correctional Services took fingerprints and these were stored on the SAPS database. These findings revealed several legislative challenges. The SAPS were not legally mandated to access fingerprints stored on the HANIS system of the Department of Home Affairs or the e-NaTIS.

Section 37 of the CPA did not make the taking of fingerprints compulsory, even in instances where a person had been convicted of an offence. The same section also required the destruction of fingerprints and other records if a person was not found guilty or no prosecution had been instituted against a person from whom such evidence had been collected. The OCJSR found that with regard to DNA evidence, whilst the taking of blood samples in criminal cases and the CPA regulated the ascertainment of other bodily features, no mention was made of the collection of DNA evidence. There was no legislation in South Africa, therefore, that specifically provided for the establishment and administration of a DNA database as a criminal intelligence tool. Whilst there was a capacity to test DNA evidence lifted from the crime scene against a known suspect, such DNA tests had provided law enforcement agencies with a very limited DNA database. The current law and forensic capacity did not provide law enforcement agencies with the possibility of establishing a DNA database with profiles of all suspects arrested and profiles arising from crime scenes.

 The OCJSR had carried out a comparison of the use of DNA evidence by law enforcement agencies in the UK and those in South Africa. This study revealed that the SAPS have a very limited DNA database and only had a 0.02% chance of obtaining a DNA hit between a suspect and a crime sample. This contrasted sharply with the UK who had a larger DNA database and a more effective figure of 52.2% in terms of the chances of obtaining a DNA hit between a suspect and a crime sample. The UK statistics were an indication that in order for South Africa to use DNA more successfully in fighting crime it would be necessary to dramatically increase the number of suspects on a national database.

A number of recommendations had been put forward by the OCJSR. The Bill had been drafted in order to rectify the unacceptable state of the criminal justice system and its obvious shortcomings. It would strengthen the SAPS crime fighting capacity in respect of fingerprint and DNA evidence through a number of innovations. The Bill would deal with all aspects of biometric evidence especially fingerprints and DNA. It would also make provisions for the expansion and upgrading of the existing fingerprint database within SAPS such as by allowing the police to take fingerprints from all accused and to keep such fingerprints. The legislation would establish and provide for the management and administration of a National DNA database that would include all suspect and crime scene profiles. The Bill aimed to achieve these objectives whilst providing for strict safeguards and penalties to ensure that forensic materials were collected, stored and used for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution.

A summary of the main features of the Bill was then provided.

Some changes had been effected to the Bill during the certification process by the State Law Advisers (SLA). The Bill as approved by Cabinet had made provision for the indefinite retention of prints, samples and the information derived from such samples. This had been done in order to reverse the current situation whereby all such evidence had to be destroyed if a person from whom it was taken, was not subsequently found guilty by a court of law.

Experiences in other jurisdictions had shown that if such evidence was kept, it could lead to the successful prosecution of offenders down the line, offenders who would otherwise have remained undetected had there not been an extensive database in place. The Department was of the opinion that keeping such evidence indefinitely and using it only within the strict confines of the Bill would not be unconstitutional as it amounted to a justifiable limitation of the right to privacy or the right to equality. The increase in the database of fingerprints and samples promoted the public interest by promoting the detection and prosecution of serious crime. It represented a proportional response to the legislative aim of dealing with serious crime in South Africa. If there were any doubts as to the constitutionality of such an approach, it was best to leave this to be determined by the Constitutional Court. Mr de Lange also cited passages from Lord Steyn’s judgment in a case that had been brought before the House of Lords. Although the European Court had later on overturned this judgment, he urged the Committee to accept the reasoning that retaining this evidence balanced the ends of justice as well as the public interest in a crime-free society without taking away constitutionally guaranteed rights and freedoms.

The Deputy Minister concluded his brief by highlighting and emphasizing the benefits of strengthened forensic crime fighting capacity and the considerations pertaining to implementation. The Bill would enable law enforcement agencies to detect patterns in criminal activity and reduce the burden on the criminal justice system by increasing plea bargains and guilty pleas. It would also contribute to the exoneration of innocent people. He estimated that the implementation of the Bill would cost about R8-9 billion. The Bill had been costed provisionally and a business plan had been developed to map the incremental implementation of the Bill. The implementation of the Bill would require significant capacity expansion in respect of both human and other resources that would require funding to undertake the development of business systems reengineering plans. Additional personnel would have to be trained and retention strategies adopted to retain scarce skills within the forensic science field.

Ms M Sotyu (ANC) commented on the need for skills and said that the Portfolio Committee on Safety and Security had also received complaints about skills scarcity in SAPS. Effective implementation hinged on skills availability and capacity.

Ms C Johnson (ANC) asked about the retention of the samples for a five-year period. What was the position in other jurisdictions? Mr. P Smith (IFP) had also asked what the argument was against the keeping of DNA evidence for a period of five years?

Ms F Chohan-Kota (ANC) asked if there were any other countries that allowed their police to share information with other databases. On the destruction of data, she asked if there were any other countries that did not destroy such information. She commented that there seemed to be substantive merit in keeping a database as a research tool.

Mr De Lange referred to American and Australian jurisdictions where such information was not destroyed. He also pointed to the example in Britain in the Judgment by Lord Steyn and quoted a passage on the learned judge’s opinion with respect to retaining samples of persons who had been found not guilty. However the European Court had overturned this judgment based on a Convention that clearly stated that such data could not be kept. The Government would have to prove that the limitation clauses to a right could be used in the collection and retention of DNA samples.

Mr De Lange also responded that any new innovation was likely to be challenged. The Department had met with similar objections to different legislative proposals in the past. The Constitution allowed one to keep pushing the boundaries to see where the limits were. The one area where there had been debate was on the issue where one had been taken to court and found not guilty. This was a small issue in the broader context of the Bill and would not likely be challenged until much later in the life of the legislation.

Advocate Madasa commented on the issue of retaining samples. It was a crucial area in this Bill especially in the absence of a law that required everyone’s DNA to be taken, since those who challenged this would invoke the issue of discrimination. He asked what the potential areas of abuse were (such as planting of evidence by frustrated police who then resorted to the DNA database in order to secure convictions). He asked what preventive measures were in place to avoid this from happening.

Mr. De Lange agreed that the Legislature needed to make sure that safeguards were put in place to protect against abuse. Checks and balances had to be included and had to be implemented strongly. The strictest sanction had to be put in and there was a need for a separate agency because of the need for neutrality. He stressed however that all the debate on this Bill must not be dominated by this part. He also pointed out the State Law Adviser had not been happy about this and had only specified the five-year time period after the Department had engaged with them. Mr De Lange argued that human rights were also a practical issue and that the bar shifted depending on a country’s level of development. For certain jurisdictions such as Sweden there were obviously different levels of crime and these informed the standard of human rights. The clauses in the Bill pertaining to the acquisition, storage and use of samples stated very clearly that their purpose was a very narrow one. This was done in order to protect against possible abuse.

The meeting was adjourned

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