SECRETARIAT OF POLICE1 POLICING POLICY ON THE ESTABLISHMENT & ADMINISTRATION OF A NATIONAL DNA DATABASE 13 June 2012 CIVILIAN SECRETARIAT FOR POLICE

SECRETARIAT OF POLICE CONTENTS Background Introduction Methodology Current practice Policy considerations Conclusion 2

SECRETARIAT OF POLICE BACKGROUND The establishment of a national DNA database comes out of the CJS Revamp process approved by Cabinet Legislation was drafted and presented to the Portfolio Committee (PC); Criminal Procedures (Forensic) Amendment Bill The PC felt that more work was required before the DNA database be established in legislation The following presentation deals with the issues that have arisen regarding implementation of a national DNA database 3

SECRETARIAT OF POLICE INTRODUCTION Many countries acknowledge the need and importance of National DNA databases and the benefits this brings to law enforcement DNA is not the only source of evidence & a database cannot replace efficient police investigations In establishing a database for South Africa it is imperative to take into account people’s Constitutional Rights as well as the practicalities involved in implementing a database 4

SECRETARIAT OF POLICE METHODOLOGY International and legislative review –International scan (USA, Netherlands, Canada, UK and Brazil) –Relevant Legislation –Portfolio Committee on Police Study Tour report Interviews –DNA Project –UWC Dept of Criminal Procedure –SA Society for Human Genetics –State Law Advisors –SAPS FSS & FSL 5

SECRETARIAT OF POLICE6 D NA repository presently administered by SAPS Forensic Science Service Once a sample is analysed, a DNA profile is generated & housed in the repository Profiles are utilised on a case by case basis Two indices at repository: Crime Scene Index & Reference Index Reference Index profiles = Crime Scene Index profiles = However, the repository is not adequately guided by clear legislation CURRENT PRACTICE

SECRETARIAT OF POLICE PURPOSE OF DNA POLICY Therefore, the purpose of this policy is to create a legislated & regulated national DNA database which will allow the police a tool to use for criminal intelligence purposes, and which will assist in the investigation and detection of criminals In writing this policy, gaps from the previous legislation needed to be addressed The following slides speak to the key areas identified, with recommendations 7

SECRETARIAT OF POLICE ACCREDITATION SAPS FSL The SAPS FSL is currently not accredited Accreditation will provide assurance of technical competence to courts which will result in cases being less likely to be contested or questioned in court The SAPS have indicated that the FSL has already embarked on a road map to accreditation 8

SECRETARIAT OF POLICE CUSTODIANSHIP & ADMINISTRATION OF DNA DATABASE The databases of all the countries examined for the policy are national competencies Policy explored 3 options (privatization, Section 21, State FSS) The proposal is that we do not opt for the privatization route or a Section 21 Company as the financial cost to the State would be too high A DNA repository already exists at the SAPS FSS, with admin structures, skilled & trained staff, and approx profiles Therefore the recommendation is to locate database within the State, particularly the SAPS FSS But capacity of FSS has to be strengthened in order to deal with the huge task 9

SECRETARIAT OF POLICE INDICES AND CATEGORIES OF PROFILES Current repository has two indices: crime scene index & reference index (included suspects & victims profiles) Portfolio Committee on Police recommends 3 indices: crime scene index, convicted offender index & elimination index Policy recommendation is 5 indices: –arrestee’s index (charged suspects) – volunteer’s index (for exclusionary purposes) –crime scene index –convicted offender index –Elimination index (for detection of staff contamination) 10

SECRETARIAT OF POLICE SIZE OF THE DNA DATABASE To be limited to the 5 indices –arrestee’s index –volunteer’s index –crime scene index –convicted offender index –elimination index This will ensure chances of a comparative hit for crime intelligence purposes remains great A larger database does not guarantee better chances of crime solving as effective police investigations 11

SECRETARIAT OF POLICE AUTHORIZATION FOR REFERENCE SAMPLE COLLECTION Medical practitioners currently collect blood & semen samples, police do breathalyser tests Recommendation: Authorized members (a ppointed police personnel, appropriately trained in DNA sample collection, who undergo assessments and are certified competent) be allowed to collect reference samples These will increase collecting capacity & avoid secondary victimization Also not practical for medical personnel to be available at all reference collection points 12

SECRETARIAT OF POLICE WHERE REFERENCE SAMPLES SHOULD BE COLLECTED Authorized police officers to be allocated special rooms at courts & at specific police stations (as is practiced in Canada) Police stations to be selected by oversight body & SAPS FSS officials & be accredited Individual’s right to privacy is still guaranteed 13

SECRETARIAT OF POLICE RETENTION, DESTRUCTION AND EXPUNGEMENT OF SAMPLES AND PROFILES Crime scene samples cannot be destroyed & must be retained indefinitely for evidentiary purposes Suspect's samples needs to be retained for a certain length of time for it to be analysed and to be checked beyond the closure of the case Particular DNA profiles may be expunged (those of innocent people) Other profiles are required for reference purposes and potential investigative leads (those of the arrestees, elimination & offenders indices) 14

SECRETARIAT OF POLICE TIMEFRAMES FOR THE RETENTION & DESTRUCTION OF DNA SAMPLES & PROFILES Arrestee’s profiles: if acquitted or no conviction, expungement within 6 months. If guilty profile should remain on database Elimination profiles: to remain indefinitely for detection of personnel contamination & all cold case investigations Convicted offenders profiles: expunged 6 years after release if no other hits recorded Volunteers profiles: expunged after 3 months as these are searched against a particular crime. Victims profile to be expunged immediately after finalisation of a case Crime scene samples: remains indefinitely 15

SECRETARIAT OF POLICE HUMAN RIGHTS Any proposed legislation has to fall within the parameters of the Constitution. Issues of human rights violations were raised at the previous hearings of the DNA bill Right to human dignity: use of buccal swabs do not violate the individual rights of a person & is practiced internationally & police to be trained in reference sample collection Right to privacy: DNA samples & profiles of innocent/ acquitted persons to be expunged, information stored in the database to be safeguarded against any unauthorised access, genetic information to be securely recorded and monitored & the place where samples are to be collected should be specifically allotted Right to bodily and psychological integrity: use of buccal swabs to collect saliva samples is non-invasive & does not infringe a person’s right to bodily and psychological integrity 16

SECRETARIAT OF POLICE HUMAN RIGHTS CONT… Rights of children –DNA legislation should be aligned with the Child Justice Act as well as the fingerprint legislation –Even in cases where minors DNA submitted voluntarily (missing children cases), provision must be made to avoid the DNA used in criminal investigation Balancing the rights of individuals to the safety of communities –The legislation must provide adequate safeguards such as punitive penalties for abuse of the DNA database –The roles and responsibilities of the oversight body as recommended in this policy will ensure adherence to statutory obligations. –It is ultimately left to the public to decide if any violations have come to pass 17

SECRETARIAT OF POLICE OTHER ISSUES RE NATIONAL DATABASE Link of NDDSA to the AFIS –To link the DNA database to the Automated Fingerprint Identifications System (AFIS) to expand the crime intelligence tool despite the lack of a link between the two systems & to improve the ability to identify potential linkages sooner IT Solutions –CODIS should be utilized as the database software Role of other departments –Protocols between relevant departments to be finalized once implementation of legislation is adopted –Consultations to be done prior to passing of the legislation 18

SECRETARIAT OF POLICE PHASED IN IMPLEMENTATION OF LEGISLATION Phase 1: First 18 months Legislation to be adopted Oversight Body to be established & rules and regulations to be put in place SAPS FSS to begin training of existing HR capacity & undertake further recruiting Identified police stations to be accredited Particular functions of Biology Section to be decentralized for sample collection Awareness campaigns to be conducted Collection of convicted persons samples in all prisons to begin Collection of samples of all other indices to begin Phase 2: Second 18 months M & E of the first 18 months to be conducted Impact studies of improvement of hits to be conducted Sample collection to continue 19

SECRETARIAT OF POLICE OVERSIGHT AND REVIEWING Fundamental rights of people be protected with Database Therefore an oversight body to be established To consist of SAHRC, Departments of Justice, Health, DCS, SAPS, the Civilian Secretariat for Police, and a member from the South African Society of Human Genetics Appointment of Board responsibility of JCPS Cabinet Committee with the final sanction of Cabinet Responsibilities should include oversight of the implementation of the legislation process, as well as overall governance and Integrity of the national DNA database 20

SECRETARIAT OF POLICE OVERSIGHT AND REVIEWING Other responsibilities: monitoring performance, conduct, ethics & privacy Board must review all future applications to access data and samples for forensic and non-forensic purposes to ensure standards are maintained, ensure public accountability & transparency. The Board must report to Parliament annually DNA legislation must be subject to Parliamentary review every 5 years to address gaps, technological needs and scientific developments, and human rights transgressions 21

SECRETARIAT OF POLICE CONCLUSION This policy recommends that South Africa establish a DNA database as a criminal intelligence tool, to aid in fighting crime, enhance public confidence, and taking into account people’s Constitutional Rights DNA is not the only source of evidence & the policy does not pronounce it as the silver bullet over efficient police investigations It is however scientifically sound, and in terms of evidentiary value, is especially beneficial 22