Criminal Law (Forensic Procedures) Amendment Bill: public hearings

Meeting report

Criminal Law (Forensic Procedures) Amendment Bill (the Bill): Public Hearings
The DNA Project: Submissions
Ms Vanessa Lynch, Director, The DNA Project, provided a brief history of The DNA Project. The DNA Project was a registered Public Benefit Organisation, which fully supported the expansion and use of a National DNA Database for criminal intelligence purposes, as envisaged by the new Bill, in particular the section regulating the use and retention of DNA profiles. The DNA Project’s primary objective was to lobby for the implementation of DNA-specific legislation, which would ensure that the rights of South African citizens were finally given a voice in the fight against crime. The DNA Project championed the benefits of a DNA database for criminal intelligence purposes. There was a need to capacitate the existing DNA database in South Africa, which had, by default, evolved under the governance of the Criminal Procedure Act of 1977 (CPA), although this Act was promulgated long before the advent of DNA profiling and its use as a crime intelligence tool. The current CPA was wholly inadequate for regulating the use and retention of DNA profiles on a National DNA Database.  There was therefore an urgent requirement for the enactment of DNA-specific legislation that would govern the upliftment and retention of DNA profiles on the database. It was irrefutable that the use of DNA evidence held promise for all aspects of the criminal justice system. It would ensure prompt resolution of criminal trials and would more often lead to guilty pleas. These guilty pleas would in addition spare already traumatised sexual assault and child victims the trauma of trial. Guilty pleas would also save taxpayers money by reducing court staff time and reducing costs for prosecutors and public defenders. South Africa had one of the highest crime rates in the world and this was largely as a result of inordinately low conviction rates, coupled with high rates of recidivism. The new Bill, in particular the section that governed DNA profiling and its use and retention on a DNA database, ensured that the future of the current DNA database would be expanded and managed in a regulated and appropriate manner.

Ms Lynch noted that DNA profiles should be obtained from all convicted criminals, since research had shown that this would firstly act as a deterrent and address the issues of accountability, both of which posed a huge issue in South Africa in respect of repeat crimes being committed by the same person. Secondly, it could be used to check the offender against previous crime scenes where DNA profiles had been lifted. Thirdly, since there was a high possibility of offenders repeating crimes during parole or after release, future crimes could be swiftly traced.

Ms Lynch then compared results between the United Kingdom (UK), which had the largest DNA database in the world, and South Africa. The high number of total profiles on the UK database (4 168 317 as compared with only 123 323 in South Africa) generated a higher number of hits in terms of matching suspects to crime scenes. Given the level of crime in South Africa and the high rate of recidivism, the local DNA database was not working nearly as effectively as that in the UK, which was directly related to the fact that there were not enough profiles to search on the South African database. An increase in the number of profiles would increase the chance of finding a match and linking it to a suspect, or at the very least deriving criminal intelligence which could be used to close down on the unknown suspect, his or her modus operandi, area of operation and linked profiles, which may indicate a syndicate. This would benefit detective work enormously. It would also lead to a quicker way of exonerating the innocent. In the United States of America (USA), about 200 people, most of them death row inmates, had been exonerated by DNA evidence.

Ms Lynch noted that the potential privacy concerns around retention of a profile on the database had to be considered. The type of information available would not compromise those individuals from whom a sample was contained. The database information was just a sequence of numbers, and could be compared to a finger print, which similarly gave away no private information of that person whatsoever. South Africa had the benefit of hindsight and could construct its legislation knowing of the pitfalls that had been experienced in other jurisdictions. Ms Lynch assured the Committee that this was a smart way to combat crime and that the retention of profiles did not amount to a criminal record, as it would remain dormant. There was currently no evidence, from extensive research undertaken, that DNA databases had been abused.

Dr Carolyn Hancock, The DNA Project, then also gave a presentation to clarify the scientific principles behind DNA profiling, which had become the current forensic tool of choice. There were many benefits over traditional methods that had used fingerprinting. DNA was a powerful tool because each person's DNA was different from every other individual, except for identical twins. Because of that difference, DNA collected from a crime scene could either link a suspect to the evidence or eliminate a suspect. Evidence compared across a number of crime scenes could indicate or dismiss the same perpetrator for each crime. Moreover, DNA maintained its integrity so that evidence from crimes committed many years ago could still yield sufficient DNA to conduct an analysis. While blood, saliva and semen were still the main sources of DNA for forensic testing, trace amounts of DNA, for example from epithelial cells, could now be acquired from objects that had been touched, such as the handle of a weapon, the steering wheel of a stolen car, or the inside of a glove. The analysis of the biological evidence collected from crime scenes, regardless of whether a suspect had been identified in that case, was equally important. For example, saliva on a cup or glass used, skin cells or hair shed could be obtained and compared with blood or saliva samples from a suspect.  Similarly, DNA collected from the perspiration on a hat or scarf discarded by a rapist at one crime scene could be compared with DNA in the saliva swabbed from the bite mark on a different rape victim.

Dr Hancock explained that a DNA profile was simply a set of no more than nine numbers (known as markers) that were derived from a DNA sample, which uniquely identified that person as an individual. These nine markers were known as junk DNA or non-coded DNA, and did not reveal any genetic disposition or description of the individual from whom they were derived. The DNA profile from every collected sample, whether from a person or a crime scene, was analysed to produce a 'DNA profile' for each individual, and, as previously stated, because each person had unique DNA, could be compared with existing profiles stored, or used to create a new profile. 

Discussion
Ms F Chohan (ANC) commented that the United Kingdom had experienced some problems with the European Court, who had ruled that data must be destroyed and should not be retained after an accused had been found not guilty. She asked how then the database would be expanded to include every citizen.

Ms Lynch responded that the UK had until March to decide what to do, and that it was necessary to wait and see what would be done. UK still believed in the value of retaining such records as evidently a lot of money had been invested into expanding the national DNA database. The UK was also considering alternatively putting all DNA profiles on to the database. In South Africa’s case, legislation underpinned the entire programme and it was vital to have this in place first. The advantage was that the South African legislature had the benefit of hindsight and could rectify the mistakes or circumvent the challenges in other jurisdictions. 

Adv Z Madasa (ANC) asked how much of the DNA evidence was required to get to accurate results, and asked what the likelihood of error was in the processing of evidence through mechanisation.

Dr Hancock assured the Committee that South African laboratories and equipment complied with international standards in terms of quality control. She also pointed out that mechanisation decreased the risk of human error and the possible contamination of samples. She pointed out that the DNA sample required was a very minute amount, of possibly a nanogram.

Adv Madasa asked whether concerns also expressed by Business Against Crime about the retention period were not mitigated by legal safeguards in the legislation restricting the use of the DNA to specific instances.

Dr. Hancock responded that she would argue that there was such mitigation, and added that since the nature of the information contained in the DNA profile within a database was not sensitive this would limit the risk of abuse.

National Prosecuting Authority (NPA) Submission
Adv Bradley Smith, National Prosecuting Authority, presented the general viewpoint of the NPA on the Bill, and indicated certain suggested amendments. Generally speaking, the NPA welcomed the proposed legislation for a number of reasons. The NPA believed that the Bill would enhance the ability to deal with crime, extended access to existing fingerprinting databases, extended the usefulness of DNA analysis; and would assist in excluding suspects and identifying perpetrators.

The NPA suggested that in Clause 2 the definition of “body-prints” was unnecessarily restrictive, and proposed that it be extended to include “any other part of the body”. The NPA also recommended an extension of the definition of “NDDSA” to make reference to “samples retained” since the ordinary meaning of “database” referred to structured data collection or record rather than objects or samples. A number of grammatical mistakes and wording issues were also identified and brought to the attention of the Committee. 

The NPA welcomed the suggested legislative proposals as an effective tool in terms of dealing with crime. DNA had become generally accepted, with the shift away from eye-witness testimony to real evidence. The creation and growth of a DNA database enhanced the possibility of a hit or a match and extended the usefulness of DNA analysis. Adv Smith argued that, in order to populate the DNA database, and in the context of the general detection of crime, it was not necessary for there to be a connection between the crime and the taking of a sample. He further discounted suggestions that the taking of samples should be restricted to serious offenders, and that the retention of the DNA or samples created a suspicion in respect of persons arrested. He argued that the huge benefits in terms of the narrowing down of suspects meant that it should be permissible to take samples from those who were arrested but not charged, or those who were acquitted. Although such persons were being treated differently from general members of the public, such distinctions were justifiable on a number of grounds, including the public interest in crime-free society. The database was of great benefit. Furthermore, the profiles were retained for a very limited purpose. The retention of samples was not predicated on the innocence or guilt of the person. The sample was not made public and the profiling was concerned with matching numbers as opposed to particular traits.

Discussion
Adv C Johnson (ANC) asked the NPA to comment on submissions by the South African Human Rights Commission (SAHRC) and the Cape Bar Council to the effect that the taking of samples should be limited to more serious offences.

Adv Smith replied that the primary intention of taking samples was to populate the database, and that imposing restrictions on the taking of samples to serious offences would not achieve that primary aim. It was much better to rather have a general provision as opposed to allowing a discretion to a police officer as to what constituted a serious offence.

Ms Chohan asked about the taking of samples when legal representatives were not present, and whether this would not be contrary to a suspect’s right to silence.

Adv Smith responded that this was something that the trial court would ultimately have to decide upon. At present the statistics revealed that 80% of all criminal cases were legal aid matters. To require legal representation when samples were taken for all these cases might unnecessarily burden an already over-burdened criminal justice system. Mr Smith also explained that the right to silence pertained to self-incriminating oral statements, and did not extend to real evidence.

Business against Crime (BAC) Submission
Ms Lorinda Nel, National Project Manager, Business Against Crime, began by noting her organisation’s agreement with the tenor of the NPA’s submissions. She noted that BAC was established as a Section 21 company in 1996, in response to a request from former President Nelson Mandela that business join hands with the Government in the fight against crime. The organisation sought to support and complement Government's efforts with the South African private sector’s considerable entrepreneurial, managerial and technological skills. BAC thus supported the implementation capacity for Government’s roll-out of national anti-crime priority initiatives and served as a conduit between business and government in respect of the fight against crime. The need to strengthen the South African Police Service (SAPS) forensic investigative powers was long overdue, and this Bill would go far in rectifying this shortfall. BAC supported the amendments to incorporate DNA forensic procedures, and the long awaited access to the databases of the Departments of Home Affairs and Transport.

Ms Nel made certain additional recommendations. Firstly, she proposed that the period of retention of DNA data should be extended beyond 5 years, which had been shown by law enforcement agencies to be too short, and recommended that this period should be indefinite, as was the case in France or alternatively in Austria, where data was retained until the person had turned 80 years of age or had made an application to a court for the destruction of the records. Ms Nel also pointed out that not all suspects or criminals were South African citizens and that this constituted one of the biggest loopholes in crime fighting. She suggested that for security reasons it should be required of all foreigners that they have their fingerprints taken upon entering South Africa. Such measures were in place in Japan and the USA, in response to the threat of terrorism. If implemented in South Africa, this would protect foreign victims of crime, as well as assist in the identification of foreign tourists in situations such as bus accidents and other situations requiring disaster management. BAC also recommended that medical practitioners be granted the authority to take an intimate sample from any child. She argued that the current situation whereby authorisation was required meant that the taking of samples from victims was often delayed and this could jeopardise many trials. 

Discussion
Adv Madasa commented that taking fingerprints from foreigners entering the borders could make sense. He asked whether businesses were prepared to provide financial support, given the issues of capacity and the Deputy Minister’s recommendation for the establishment of an independent agency.

Ms Nel responded that BAC rather suggested the capacitation of existing structures, considering the costly nature of establishing an independent agency.

Ms Chohan commented on the recommendation around the medical practitioners, noting that most DNA samples in any event were taken by medical practitioners.

Ms Nel responded that granting discretion without the guidance of legislation would always pose a risk. At present, medical practitioners took samples at the request of a police officer. There had been debates on the chain of evidence and how it was actually collected. The issue of children was complex and involved multiple considerations, including the fact that there were a growing number of child perpetrators of sexual offences. This issue therefore required greater scrutiny.

South African Human Rights Commission (SAHRC) Submission
Ms Judith Cohen, Head of the Parliamentary Programme, and Mr Danzel van Zyl, Senior Researcher, South African Human Rights Commission, made representations on several human rights concerns arising from the Bill. Ms Cohen stated briefly that the SAHRC supported Government’s commitment to seriously address the scourge of crime and violence in society through a comprehensive review of the criminal justice system. Mr Danzel van Zyl appealed for this particular legislation to be seen against the spirit and letter of the Constitution. There were important differences between South Africa and UK, since South Africa was a constitutional state, subject to the dictates of the Constitution, whereas a different system applied in the UK. He reiterated that in principle the SAHRC was in support of any measure that was aimed at removing the scourge of crime and senseless violence in South Africa. This could not, however, be done without regard to the constitutional imperatives. There could be no derogation from the rights to privacy and human dignity and for this reason the collection of samples should be limited to serious offences. The issue of capacity to collect DNA samples must also be taken into consideration, especially in view of the expensive technology required and the appalling state of law enforcement in certain parts of the country. He posed the question whether there would be an assurance to victims that such samples would indeed be taken, whether this would apply to all South Africa citizens, not just the wealthy who lived in affluent areas as opposed to those in remote areas without any infrastructure. He implored the Committee to ensure that the legislation would be effective and applied fairly. He argued that no person should have a reduced sense of privacy merely by coming into contact with the criminal justice system.

Mr van Zyl pointed out that the Bill was silent on the implications should a person refuse to submit a sample, and said the safeguards inserted in the Bill were insufficient. He suggested that because the Bill focused on procedures, it was desirable that the National Commissioner institute safeguards within law enforcement practices. The gist of the Bill was concerned with how a police officer obtained the DNA. However, there was a need for more detail, a need for regulations and a need for oversight bodies. The Independent Complaints Directorate (ICD) was inadequate for this role and perhaps lessons could be taken from the United Kingdom. The SAHRC would support the establishment of structures similar to those currently operating in the British model. There, the National DNA Operations Group focused on tactical and operational delivery of DNA services, and there was further an Ethics Group, comprising civilian input and thereby creating public confidence in the usefulness and benefits of DNA evidence. These additional safeguards avoided the Executive dominating over individual rights. Any infringements of these rights had to be both permissible and done in accordance with the law. He stated that this Bill attempted to legalise the use of improperly obtained evidence, despite Section 35 of the Constitution, which specifically forbade the use of improperly obtained evidence. The provisions of the Bill were also not strong enough around the sort of conduct that constituted a violation of the database, such as abuse of office to gain access to data.

Discussion
Ms A Van Wyk (ANC) pointed out that the Committee Members had already raised the issue of capacity. She also commented that Mr. Van Zyl had made surprisingly few comments on the retention of data and issues around children, and asked specifically for the perspective of the Commission on the latter point.

Mr van Zyl responded that there was a general presumption that a person whose DNA information was obtained must be still in the same position as that person had been in prior to the taking of the data. He therefore believed that the retention of data was arbitrary and contrary to prevailing constitutional jurisprudence.

Adv Madasa commented that Mr Van Zyl had raised concerns around DNA sampling being an invasion of dignity, and asked him to quantify this statement, which he thought was perhaps too wide a statement without evidence.

Mr van Zyl responded that the issue of privacy was real and not imagined. He argued that DNA had the ability to communicate private information of a medical nature. The possibility of abuse was real, considering that some insurance companies in the USA had acquired comprehensive medical records from DNA.

Ms Cohen submitted that many reports from non Governmental organisations (NGOs) in South Africa suggested that perpetrators, as well as offenders, were increasingly younger. It was important to consider whether there were sufficient provisions when consent was refused. More attention needed to be given to this, to see how the Bill could be tightened up. There were other issues also, including mental capacity. The legislature needed to think carefully about how the decision as to who was included in the database should be made, and how such a system could be rolled out, as it would have to be built over time.

Dr Carolyn Hancock, The DNA Project, commented on the possibility of DNA being abused. She pointed out that there was a distinction between a profile and a sample. The profile, which was usually what was dealt with in a database, did not contain intimate or sensitive health information. The DNA sample on the other hand contained full genetic information.

Mr van Zyl suggested, in the light of Dr Hancock’s explanation, that the DNA samples should therefore not be kept.

Ms Chohan asked the SAHRC whether extended access to the Department of Home Affairs’ database was consistent with their view.

Mr van Zyl replied that this was consistent with the SAHRC’s view that an invasion of privacy could be justified for a legitimate governmental objective that would stand up to constitutional scrutiny

Police and Prisons Civil Rights Union (POPCRU) Submission
Mr Unathi Theledi, Deputy Secretary General, Police and Prisons Civil Rights Union, gave a detailed oral and written presentation to the Committee. He submitted that the seriousness of crime in South Africa had necessitated the revamping of the criminal justice system, through a new co-ordinated effort to make crime-fighting more effective.

Mr Theledi made reference to certain ambiguities in wording across different provisions in the Bill, which, in the opinion of POPCRU, seemed to facilitate the privatisation and /or outsourcing of core policing functions to private entities established by former highly skilled SAPS employees who now were returning as consultants.

Discussion
The Chairperson expressed her displeasure that POPCRU had raised their grievances in this manner in Parliament, pointing out that this was not an appropriate platform. If they had any complaint against SAPS management then this should have been brought to her attention in her capacity as the Chairperson of the Safety and Security Committee. Notwithstanding the inappropriate timing, she said that the allegations made by POPCRU demanded an urgent investigation and she would initiate one as soon as possible. She asked Mr Theledi if he had any evidence.

Mr Theledi responded that POPCRU had the names of individuals who had left SAPS and were returning as consultants to the forensic unit.

Adv Johnson (ANC) asked about the issue of outsourcing and said that the she could not find any reference to a private company in the Bill and that no mention of money had been made.

Mr Theledi responded that the ambiguity in the wording created a clandestine context.

The meeting was adjourned