Criminal Law (Forensic Procedures) Amendment Bill: briefing by Department of Justice

Meeting report

Ms Sotyu explained that the Committee had been supposed to hear three more submissions. However they had opted to submit written submissions to the Committee as opposed to oral submission. The Chairperson also said that she had initiated an investigation of the allegations made by POPCRU in the public hearings. Police management would also be required to come before the Committee to respond to the issues raised there. The Committee had to be assured before the Bill was passed, that they had the capacity to implement it. Experience had shown that Parliament could pass good Bills that however failed when it came to implementation. She requested the Department of Justice to take the Committee through the Bill.

Dr Lirette Louw, Senior State Law Adviser, Department of Justice and drafter, confirmed with the Chairperson that the Department would not be referring yet be responding to the public submissions on the Bill but would be presenting a briefing on the Bill clause by clause.

Clause 1: Substitution of the heading of Chapter 3 of the CPA

She began with the clause which effected amendments to the heading of Chapter 3 of the CPA Act which in its current form had referred only to accused persons. This had been broadened to include the ascertainment of bodily features of persons so that it would not only affect accused persons but would also incorporate convicted persons as well.

Clause 2: Insertion of sections 36A, 36B and 36C in Chapter 3 of the CPA

Dr Louw said these provisions would replace the outdated section 37 of the CPA to update the legislation in order to increase the country’s DNA capacity. A new definition clause (section 36A) had also been introduced which had not existed in the old chapter 3 of the CPA. The first definition was for the phrase “authorised persons”. A distinction was made between “authorised persons” for the purposes of photographic images, finger-prints or body-prints and “authorised persons” when talking about DNA. The first category of authorised persons which the police were already using as part of their investigations was any police official in the performance of his or her official duties. It was therefore limited in that sense. Then with regards to the NDDSA, an “authorised person” would be the police officer commanding the Division: Criminal Record and Forensic Science Service within the South African Police Service or his or her delegate. This was to try and limit access to the NDDSA to the forensic experts within the Criminal Record and Forensic Science Service (CR & FSS). The definition of “authorised person” had to be read in conjunction with the definition for “speculative search”.

Dr Louw therefore skipped to the definition of the phrase “speculative search”. This phrase was what was used throughout the Bill in order to identify a person according to his finger-prints by linking the SAPS finger-print databases, with those of Home Affairs and the Department of Transport. In so doing they would be dealing specifically with finger-prints, photographic images or body-prints and it was in this sense that “authorised persons” would apply only to those members of the police that would do this in the performance of their duties or as part of an investigation. In part (ii) of section 36A (1) (k) the Bill dealt with the NDDSA and access was limited to an “authorised person” within that specific forensic science unit. The Department had specifically written into the last part of part (i) of section 36A (1) (k) a retrospective clause to cater for information stored in databases that had been collected prior to the operation of this Bill. The same provision also extended access to databases of any department of state in the national, provincial or local sphere of government. This had been done after a request had been made by the police who argued that it would assist in their investigation of crime if they had access to some of the databases in the government sphere such as the Department of Education.

Returning to the alphabetical order of the definitions, Dr Louw proceeded with the definition of “body-prints”. Section 37 of the CPA had only referred to finger-prints, palm-prints and foot-prints. The police had asked that since they had other prints that they could take that were not invasive procedures such as obtaining prints of the ears, nose or toe prints, they be allowed to then take such prints. A definition had therefore been inserted to included prints taken from a person’s ear, foot, nose, palm or toes. The NPA and some of the other commentators had wanted to broaden this definition to include any body part. Looking at section 37 which allowed the police to take body prints, it would not be ideal to allow the police to take prints of buttocks for instance or whichever other body part. The Bill would therefore try and limit this to prints of the ear, foot, nose, palm or toes.

The next definition was that of the use of the word “child” and this meant a person under the age of 18 years.

Discussion
Ms Sotyu asked about the limiting of the definition of body-prints. During the Committee’s tour of the facilities in Pretoria they had learnt that such things as imprints left by a person’s teeth for example could be analysed. Could these not also be included in the definition?

Dr Louw responded that with respect to dental records, analysis would have to be conducted by a medical practitioner. For example if an apple was found with teeth marks and investigators wanted to determine a person’s identity from them, they would not be permitted to take the dental impression themselves but they would refer that to a medical practitioner. That medical practitioner would then have to deal with the evidence and was required by the law to comply with such a request. Police could not therefore undertake procedures that were only supposed to be done by medical professionals.

Dr Louw continued with the definitions of; “DNA”; “DNA analysis”; “DNA profile; “intimate sample”; “NDDSA”; and “non-intimate sample”. She commented that the police could not take an intimate sample. On the other hand they were permitted to take non-intimate samples such a sample of hair other than pubic hair or a sample taken from the mouth to mention some examples. The definition of DNA analysis also included “any other bodily substance”. This was in reference to bodily substances that would be found at crime scenes, as opposed to being collected from any person. A profile could then be derived and stored on a crime scene index.

In concluding the section on definitions, Dr Louw indicated the provisions of sub-clause 2 of section 36A which state that any reference to a person included a child for the purposes of the Chapter unless the context dictated otherwise. In discussions between the Department and the Divisional Commissioner Geldenhuys, the police had requested to remove this reference to ‘child’ since in the CPA children were already included in any reference to person. It could therefore cause confusion. The Department had no problem with this suggestion and would go along with it later on during amendments.

Clause 3: Section 36B on powers in respect of finger-prints and non-intimate samples of accused and convicted persons
Ms Louw said that this was where the Department wanted to make the taking of prints from these categories of persons compulsory as opposed to the current position where discretion was used because of the use of the word ‘may’ in section 37 of the CPA. This was also the section that the police would use to take non-intimate samples to populate the DNA database. The Bill accordingly provided that a police official had to take finger-prints or non-intimate samples or had to cause such prints to be taken of any person in the categories stated in 36B (1) (a) and (b). All the six categories in 36B (1) (a) were imported wholesale from the CPA with the exception that the word “may” had been substituted with the word “must” to make it mandatory for the police to take prints in terms of that section.

The exact same category of persons were listed under 36B (1) (b) with regards to the taking of non-intimate samples. Sub-clause 2 made it clear what should happen to the prints after they had been taken. The finger-prints taken in terms of subsection (1) (a) had to be stored on the finger-print database maintained by the SAPS as provided in the SAPS Act. The non-intimate samples taken under subsection (1) (b) were to be immediately furnished to the National Commissioner of the SAPS or his delegate who would carry out a DNA analysis on each sample in accordance with provisions of Chapter 5A of the SAPS Act.

The Bill also made provisions for the re-taking of finger-prints or non-intimate samples to allow the police to maintain the integrity of the database. This would ensure that, say for instance, only a partial print had been obtained, then the police could obtain a perfect set for all ten fingers. In another instance the finger-prints could be of insufficient quality. The same applied for non-intimate samples which could be re-taken if the original samples were insufficient for DNA analysis. The finger-prints and non-intimate samples or information derived from such samples could be the subject of a speculative search. 

Subsection (6) dealt with the issue of retaining the DNA profiles and finger-prints. Finger-prints, non-intimate samples or the information derived from such samples had to be retained after they had fulfilled the purpose for which they had been taken or analysed but had only to be used purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution. This provision specifically addressed the lacuna existing as a consequence of section 37 of the CPA which required the destruction of such prints or samples if the person was not found guilty.

The Bill also contained a provision that criminalised the use, by any person, of finger-prints and non-intimate samples or allowed their use for any purpose that was not related to the detection of crime, the investigation of an offence or the conduct of a prosecution. Such a person would be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding 15 years. This was one of the safeguards built into the legislation to ensure that this real evidence could only be used for a specific government objective.

In sub-section (7) there was an attempt at retrospectivity for persons convicted of any crime in terms of the specific categories of sentencing mentioned in (a) and (b). The police were therefore given power to retrospectively take finger-prints or DNA samples from persons in those categories. This was taken from the Canadian approach where similar provisions were challenged and found to be constitutional. The Canadian constitution is similar to the South African constitution.

Sub-clause (8) had been inserted by the State Law Advisers as pointed out by the Deputy Minister in his initial briefing to the Committee. The Department wanted to remove this section but would leave it open for discussion. The Department was of the view that the finger-prints, non-intimate samples and information derived from them had to be retained because a DNA database would only be effective if it had a large population of profiles with which to compare with those obtained from crime scenes. If these samples were not retained, then this legislation would not have much an impact on crime fighting capabilities in the future.

Clause 4: Section 36C on body-prints and samples for non-investigative purposes
The section was inserted after deliberation with the police who made a request to include such a provision. This section was modelled very closely to existing legislation such as the Firearms Control Act. Any police office could without a warrant take finger-prints, body-prints or non-intimate samples on reasonable grounds that an offence had been committed. If there also existed reasonable grounds to believe that the prints or samples (or the results of an examination thereof) would be of value by excluding or including a persons as possible perpetrators of the offence then the police were allowed to take samples or prints without a warrant. The manner in which these samples or prints were to be dealt with was stipulated in subsection (3) (c) and (d).

The provisions of section 36C were therefore essentially the same as those in section 36B except that in 36C it was required for the police to have reasonable grounds that an offence had been committed.

Clause 5: Amendment of section 37 of Act 51 of 1977
Clause 3 which amended section 37 specifically included convicted persons. The previous section 37 had included convicted persons but the Minister had to publish a list and this had never actually happened since 1927.

The clause resulted in a number of consequential amendments which included where appropriate, references to relevant provisions in sections 36A, 36B or 36C. For instance the use of “blood sample” was replaced by “intimate sample” in line with the definitions clause. A number of changes had also been made to update the legislation in line with technological developments such as by including photographic images in place of photograph to accommodate digital images.

Subsection (2) dealt with medical practitioners. What had been changed here was the use of the word “must” as opposed to “may” to make it mandatory for medical practitioners to comply with a request by any police officer to take an intimate sample.

The structure of section 37 was that in subsection (1) it dealt with the powers of the police and then medical practitioners in subsection (2). Subsection (3) dealt specifically with the court’s powers. This had been the section that had been relied upon by the courts to order the taking of a blood sample.

The old Subsection (5) which provided for the destruction of prints and other records if the person concerned was not found guilty had been deleted. A new subsection (5) had been inserted permitting the use of prints and samples for speculative searches.

Clause 6: Amendment of sections 212 and 225 of the CPA

Section 212 dealt with the admission of proof of evidence by affidavit or certificate in court by expert witnesses; for example, where their presence was not necessarily required. Such an affidavit would set out all the steps taken to obtain the evidence.

The Bill was making consequential amendments since new definitions had been inserted in Chapter 3 of the CPA and these had to be referred to. Section 225 had been misunderstood in a lot of the submissions during public hearings. This section was the existing position in law. All that had been done had been the addition of consequential amendments by adding in the new definitions as referred to in Chapter 3. Subsection (1) dealt with the issue of such evidence in a court. It dealt with the admissibility of evidence obtained from a speculative search, for example.

Subsection (2) had been the section that had been misunderstood by some of the commentators. It was the existing position in law that such evidence would not be inadmissible by reason only that it had not been obtained in accordance with the provisions of sections 36B, 36C or 37 or that it had been taken against the wish or the will of the accused person concerned.

Dr Louw said she would provide the case law on this legal point during the consideration of the submissions made by stakeholders during the public hearing. The position was that there was section 35 (1) (c) of the Constitution that dealt with that. It was for the courts to weigh on a case by case basis whether such evidence would be admissible or not. There was case law which referred to the Canadian position and that seemed to be the position endorsed by the South African courts. Even if the real evidence was obtained in a manner that might not have been in accordance with the prescribed procedure, the courts would allow it. But even if they ordered the re-taking of the prints or samples, it would prove the same facts. The courts had specific jurisprudence that had been laid down in a specific judgment. The taking of a sample or print against the wish or will of an individual was an established principle and formed a part of our criminal law. It had been found to be in the interest of the administration of justice by the Supreme Court of Appeal. There was also plenty of international case law on this point as well.

Clause 7: The insertion of Chapter 5A and 5B into the SAPS Act

Whilst previous clauses had dealt with the insertion of new clauses or the amendment of existing ones in the CPA, these clauses were concerned with the SAPS Act. The power to collect prints and samples was dealt with under the CPA. But once they had been collected, they had to be handed over to the police. This is where one started to ask how they had to be maintained and administered and how they should be used. The first chapter dealt with finger-prints, body-prints and photographic images of persons whilst the second dealt with the issue of a DNA database.

Section 15A of chapter 5A dealt with storage and use of finger-prints, body-prints and photographic images. Dr Louw indicated that Commissioner Geldenhuys had proposed that it would not be necessary to use ‘his or her delegate’ in the SAPS Act since that legislation dealt with the matter of how the National Commissioner could delegate his powers. The Department therefore wanted to delete that wording to be in line with the rest of the SAPS Act. The prints to be stored and administered within the CR & FSS Division would include those taken under any order of the Department of Correctional Services as well as those obtained in accordance with the Explosives Act and the Firearms Act.

Subsection (2) was specifically included in recognition of the establishment of a National Register of Sex Offenders by the Sexual Offences Act of 2007. The provisions requiring the use of the prints for legitimate government purposes only, were contained in subsection (4). Section 15B dealt with the issue of speculative searches against other databases. Section 15C referred to national instructions relating to the collection, storage, maintenance, administration and use of finger-prints, body-prints and photographic images. This section required the national Commissioner in consultation with the Minister to issue national instructions regarding all matters that were reasonably necessary or expedient to be provided for in relation to this chapter and which had to be followed by all police officials. Some of the matters that would form the subject of these national instructions included the collection of prints and their storage, maintenance and administration; and the manner in which statistics had to be kept by the CR &FSS Division.

Section 15B(2) required the National Commissioner to develop training courses with reference to the national instructions. Finally, in terms of subsection (3) the police official commanding the CR & FSS Division was responsible for the development, implementation and maintenance of a personal identification services strategy to give effect to the provisions of this chapter and Chapter 5B (as well as the development, implementation and maintenance of systems and processes, including the required information technology infrastructure and systems to support such a strategy). This provision had been specifically inserted to ensure that this Division had control over the processes. It was not helpful to give them responsibilities whilst they lacked any control over the required information technology infrastructure and systems.

Clause 8: Chapter 5B
The provisions of Chapter 5B dealt in detail with the establishment of a national DNA database. A definitions clause was also included, that is section 15D to interpret the same terminology as that defined in the CPA so that it was also defined in the SAPS Act. Unlike in the parallel clause in the CPA, however, this clause made reference to the Explosives Act and the Firearms Control Act and included the definition of the term ‘volunteer’.  ‘Volunteer’ referred to a person who freely consented to the taking of an intimate or non-intimate sample in accordance with Section 15J which dealt with the volunteer index.

Dr Louw took a moment to reflect on the impact of the Bill’s provisions on children, considering the submissions made at the public hearing. She spoke with regards to subsection (2) which stipulated that any reference to ‘person’ included a ‘child’. The Bill did not criminalise anyone or infringe upon any right to privacy. Only when there was a hit with a crime scene would an investigation then begin.

Section 15E dealt with the purpose of the chapter which was to establish and maintain a national DNA database for specific and legitimate government objectives related to crime fighting. These objectives restricted the use of the database for purposes related to the identification of missing persons, the identification of unidentified human remains, the detection of crime, the investigation of an offence or the conduct of a prosecution and not for any unauthorised purpose. Whilst most of these objectives were included in the CPA, the Department had included, in this part, the identification of missing persons and the identification of unidentified human remains. The DNA database would serve as a crime intelligence tool in the fight against crime; identify persons alleged to have committed offences, including those committed before the coming into operation of the Chapter; and where applicable, prove the innocence or guilt of accused persons. It would also, where applicable, identify missing persons or unidentified human remains.

Section 15F dealt with the establishment of the NDDSA. It stated the responsible authority involved in its administration and maintenance as the National Commissioner or his or her delegate. The NDDSA would be located in the CR & FSS Division. It would consist of five indices which included a crime scene index, a reference index, a convicted offender’s index, and a volunteer index, and personnel, contractor and supplier elimination index. Section 15F(4) allowed for existing DNA profiles in the CR & FSS Division that had been acquired prior to coming into operation of this Act to be included in any of the relevant indices. Each of the indices was described in separate sections namely, sections 15G-15K. Dr Louw also took the Committee through the provisions of section 15L which dealt with speculative DNA searches and communication of information.

Ms Sotyu (ANC) requested Dr Louw to stop at that point so that members could discuss the provisions that she had presented up to Section 15K.

Discussion
Ms Carol Johnson (ANC) asked a question on the definition of intimate and non-intimate samples in light of the submissions made by the Commission on Gender Equality (CGE).

Dr. Louw responded that the CGE had misdirected them since the CPA in Chapter 3 was not applicable to victims since it dealt mainly with accused persons and persons convicted persons. Medical practitioners could not therefore compel victims to give samples

Ms M Sotyu asked for clarity on 36B about the use of the phrase “a police official must take the finger-prints… or must cause” such prints to be taken. Who was the other person referred to; there was a need to specify. If this was a medical practitioner then it was necessary to say so in the legislation. She also asked for clarity on the use of ‘his or her delegate’ throughout the legislation with respect to the National Commissioner. This had been one of the concerns that had been raised by some of the presenters in public hearings.

Dr Louw responded that this position had been adopted word for word from the CPA It would always be a police official and there was no way it could be interpreted as referring to outsourcing. This was the same with ‘his or her delegate’. The SAPS Act specified to whom a National Commissioner could delegate his powers and this was only a police official. One could not delegate powers outside of government and it therefore could not be outsourced at all.

Ms Chohan-Kota (ANC) suggested that perhaps the scope of the clause could be narrowed down so that not just any police official could handle DNA samples or take finger-prints. It seemed that the scope of those clauses could be narrowed down wherever possible. She had also been very worried that the legislation said that any police official could collect samples or prints.

Advocate Madasa (ANC) commented that if there was a restriction as to who uplifted the evidence it could become impractical for those selected to reach all the crime scenes. 

Dr Louw responded that the Bill did not regulate what happened at the crime scene since the police already had a crime scene policy in place that stipulated the procedures for crime scenes.

Advocate Madasa (ANC) asked about the powers of the court, that is, the power to do things mero motu in terms of the amendment of section 37 of the CPA which would be substituted by clause 3. He asked on sub clause (3) under what circumstances the court felt it had to order certain things.  Would this be at the instance of the state or the accused person or was it simply an exercise of discretion by the court on its own?

Dr Louw responded that this was the existing position in the CPA and that the court made its own decision on a case by case basis.

Mr. Ntuli (ANC) suggested that since specifying the people who had to execute this created practical problems, perhaps it would be better for the police management themselves to enlighten the Committee.

Ms Sotyu pointed to the reference to “any other person” and said that this was worrying in light of POPCRU’s submission. The Committee would take all stakeholders on board and police management would to be called to tell the Committee what they had in place to implement this legislation

The Divisional Commissioner (SAPS FSL), Mr Piet du Toit, responded to the questions about the crime scene. He stated that SAPS had a crime scene policy which made provision for first member on the scene and then the role and responsibility of detectives. There was no way that all scenes would be accessed by the experts.

Responding to Ms Sotyu’s question about the capacity to implement the legislation, Mr du Toit submitted that resources were not immediately available. Efforts were underway and in the past two years capacity building in the forensic laboratories had been ongoing. The construction of new labs and training programmes for example were part of an eight legged implementation plan. The training plan was one leg, as was the IT infrastructure plan. At present the SAPS and Home Affairs databases were incompatible and required electronic interfacing. SAPS also required time to put in place the national instructions as well as quality assurance and standards for the NDDSA. It was also necessary to procure specific agreements with Home Affairs and the Department of Transport with regards to the process by which their database would be linked. Viewed from the entirety of the CJS review process there was need for a detailed implementation plan.

Assistant Commissioner Vinesh Moonoo explained the role of a detective in co-ordination with other police officials in the crime scene context to distinguish their roles and responsibilities.
 
Ms van Wyk (ANC) commented that police management had to come and answer about the shortage of detectives. It would be irresponsible for the Committee to pass a Bill that could not be implemented.


The meeting was adjourned