PRESENTATION TO THE AD HOC COMMITTEE ON THE CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL ON 20 JANUARY 2009 CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL, 2009 (BILL 2 OF 2009) BUSINESS UNUSUAL: ALL HANDS ON DECK OFFICE FOR CRIMINAL JUSTICE SYSTEM REFORM (OCJSR)

2 BACKGROUND On 7 November 2007, Cabinet adopted a package of seven fundamental and far- reaching transformative changes of the Criminal Justice System (“the CJS Seven-Point-Plan”), which MUST ALL be adopted and implemented in an integrated and holistic manner to achieve a new, integrated, dynamic, coordinated and transformed Criminal Justice System (CJS). Change Six of the CJS Seven-Point-Plan deals with the implementation of key priorities identified for the component parts of the CJS, which are part of or impact upon the new court process, especially as it pertains to improving capacity, in respect of personnel, infrastructure, resources and appropriate legislative frameworks. In implementing Change Six, the Office for Criminal Justice System Reform (OCJSR), which is responsible for the Review of the Criminal Justice System, has identified as a priority the need to urgently strengthen two pivotal aspects of our forensic crime fighting capacity, especially at the crime scene, namely a coherent, all encompassing and holistic legislative framework for the collection, storage and use of fingerprinting and DNA evidence.

3 NEED TO URGENTLY PROMOTE LEGISLATION WHAT IS THE PROBLEM? The very high numbers of perpetrators that are not detected combined with the high number of cases being withdrawn before reaching court and whilst in court, resulting in very low conviction rates, underscores the urgent need to promote legislation that will have a positive impact on the investigation and adjudication stages within the CJS, especially starting at the crime scene level. The major and immediate problem the OCJSR has identified in our new strategy to fight crime is our lack of capacity (including in respect of personnel, infrastructure and resources and even in respect of the lack of the requisite legislative frameworks) and other problems we experience at the coalface of the investigation of crime, i.e. at the crime scene and the investigation by detectives which immediately follows, as well as in the forensic laboratories.

4 What is the present legal position? Currently section 37 of the Criminal Procedure Act, 1977 (Act No 51 of 1977)(CPA), is the only statutory provision which deals with the ascertainment of bodily features of an accused. In terms of this section the taking of fingerprints by the police is discretionary in all circumstances. Section 37 also requires the destruction of finger-prints, palm-prints, foot-prints, photographs and the record of steps taken to obtain such evidence if a person is found not guilty or if no prosecution was instituted against a person from whom such evidence was collected. Section 37 also makes no mention of the collection of DNA evidence, since it was drafted long before developments within this field, but is regarded as the legislative source for the current gathering of DNA evidence.

5 OCJSR FINDINGS IN RESPECT OF FINGERPRINTS AND DNA EVIDENCE General: One of the Major problems at crime scenes: Major legal mandate, capacity and systemic constraints have been identified in respect of at least two pivotal aspects of our crime scene/forensic laboratory / detective investigations, in respect of capacity and abilities, namely fingerprinting and DNA evidence. Fingerprinting evidence Our audit has identified three major fingerprint databases in South Africa, but for legal (and IT reasons) our law enforcers can source only the SAPS AFIS database for criminal investigations:  The AFIS (automated fingerprint information system) of the SAPS, which has the following information thereon: - 10 fingerprints database – 6,4 million prints - Latent fingerprint database (lifted from crime scenes suspects not known) – Palm print database – Latent palm print database (lifted from crime scenes suspects not known) –  The HANIS system of the Department of Home Affairs, which SAPS can’t access: - 31 million prints of citizens on the HANIS prints from immigrants and refugees and deportees have been loaded onto the HANIS - 2 million prints from immigrants, refugees and deportees are in the process of being loaded onto the HANIS - Therefore, the HANIS will have 33,5 million prints in the end  The E-NATIS system of the Department of Transport, which SAPS can’t access: 7 million thumb prints (they only take thumb prints not all ten fingers)  The Department of Correctional Services takes fingerprints, but these are stored on the SAPS database.

6 OCJSR FINDINGS IN RESPECT OF FINGERPRINTS AND DNA EVIDENCE (cont) In summary, the OCJSR audit has found with regard to fingerprinting evidence the following legislative challenges:  Despite the fact that a number of Government Departments administer databases containing fingerprints, the SAPS currently, due to legal and information technology reasons, only have access to the fingerprints stored on the SAPS AFIS system. As a result, the SAPS currently have no access to the HANIS system of the Department of Home Affairs, where fingerprints of 31 million citizens and about 2.5 million foreigners are kept, or to the E-NATIS system of the Department of Transport, where a further 6 million thumbprints are located.  Section 37 of the CPA does not make the taking of fingerprints compulsory, even in instances where a person has been convicted of an offence. Section 37(5) of the CPA, further requires the destruction of finger-prints, palm-prints, foot-prints, photographs and the record of steps taken to obtain such evidence if a person is found not guilty or if no prosecution was instituted against a person from whom such evidence was collected.  Fingerprints taken under the Firearms Control Act, 2000 and the Explosives Act, 2003 are currently not loaded onto the AFIS system and therefore not used in criminal investigations – this is a major shortcoming.  Therefore, the manner in which fingerprints are currently collected, loaded onto the SAPS’s fingerprint database and used, means that a fingerprint lifted at a crime scene will most likely only be checked against the “limited” number of fingerprints from convicted offenders, which have been included in the database.

7 DNA Evidence: The OCJSR audit found with regard to DNA evidence the following legislative challenges:  Although the taking of blood samples in criminal cases and the ascertainment of other bodily features is broadly regulated by section 37 of the CPA, no mention is made of the collection of DNA evidence.  There is no legislation in South Africa which specifically provides for the establishment and administration of a DNA database as a criminal intelligence tool.  Therefore, we identified that we have the capacity to test DNA evidence lifted from the crime scene against a known suspect, and that such DNA tests have provided us with a very limited DNA database. Our law and forensic capacity does NOT provide us with the possibility of establishing a DNA database, at least containing profiles from ALL suspects arrested and profiles arising from crime scenes. OCJSR FINDINGS IN RESPECT OF FINGERPRINTS AND DNA EVIDENCE (cont)

8 DNA EVIDENCE - UK v SA DNA Profiling Statistics

9 INTERPRETATION OF UK V SA PROFILING STATISTICS The SAPS have a very limited DNA database ( DNA profiles) of which only 45% (55119 out of the total ) represent suspects on its investigative repository and have only 0.02% chance of obtaining a DNA hit between a crime sample and a suspect. The suspect component of the database is significantly small. This contrasts sharply with the UK who have more than 90% of the 4.1 million DNA profiles (by 2006) originating from suspects and have a 52.2% chance of obtaining a DNA hit between a suspect and a crime sample. Thus the success of the DNA database in identifying suspects to crime scenes should increase from the insignificant 0.02% to a more effective figure towards the 52.2% of the UK as the DNA database of SA starts growing towards a similar profile of the UK. The UK statistics indicate that in order for South Africa to use DNA evidence more successfully in fighting crime, the following needs to be done: –The number of suspects on a National DNA database needs to be increased dramatically- ie suspects must be loaded onto the database for it to be effective as an investigative tool- thus the suspect should represent 90% of the database (hence the requirement for the legislation) & crime sample should be the smaller component. –The crime sample component of the DNA database in South Africa will increase and should represent a bigger proportion of property crime and be aligned to the actual crime scenes. Although the DNA database will increase in the number of profiles originating from crime scenes with the capacity improvement of crime scene examination in SAPS, it will represent the minor component in relation to the number of suspects loaded onto the DNA database once the legislation becomes effective.

10 Recommendations of OCJSR: What do we do to rectify this unacceptable situation? The Criminal Law (Forensic Procedures) Amendment Bill and accompanying business plans have been drafted to address the above mentioned shortcomings, in order to strengthen the SAPS forensic crime fighting capacity in respect of fingerprint and DNA evidence, by: - Dealing with all aspects of biometric evidence (esp. DNA, fingerprints); -Expanding and upgrading the existing fingerprint database within SAPS (for example, allowing police to take fingerprints from all accused and to keep such fingerprints); - Linking SAPS fingerprint database with other fingerprint databases in Government (such as DHA’s HANIS system) and allowing LEA’s to utilise other fingerprint databases for criminal investigations; - Giving the SAPS the power for the first time to collect DNA samples (non-intimate samples); and - Establishing and providing for the management and administration of a National DNA Database to include all suspect and crime scene profiles. The Bill aims to achieve these objectives whilst providing for strict safeguards and penalties to ensure that forensic materials are collected, stored and used only for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution.

11 Summary of Bill Some of the main features of the Bill can be summarised as follows: a)The Bill provides a new legislative framework in regard to forensic procedures and affects various consequential amendments to a number of Acts. b)Clause 1 substitutes the heading of Chapter 3 of the CPA, in order to ensure that the provisions of Chapter 3 are not limited in its application to accused persons only. c)Clause 2, firstly, inserts a definition clause into Chapter 3 of the CPA, to clarify, amongst others, new terminology associated with the establishment of a DNA database. In particular, the following definitions should be noted: –The Bill distinguishes between intimate and non-intimate samples. Intimate samples can only be taken by medical professionals while non-intimate samples, such as a buccal swab or hair sample, can be taken by any police official. –Speculative search – The Bill provides that fingerprints, non-intimate samples or the information derived from such samples (DNA profiles), may for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution, be subjected to a speculative search by an authorised person (which is also defined in the Bill) against other databases, in the case of fingerprints, or against the National DNA Database of South Africa (NDDSA) in the case of non-intimate samples or the information derived from such samples. The Bill stipulates the circumstances under which, the manner in which and the persons to whom the information derived from a speculative search may be communicated.

12 Summary of Bill (cont) d)Secondly, Clause 2 inserts a new clause 36B into Chapter 3 of the CPA, to provide the police with powers in respect of the taking of fingerprints and non-intimate samples of accused and convicted persons. –The clause makes the taking, by police officials, of fingerprints and non- intimate samples of certain categories of accused and convicted persons compulsory. –It provides for the retention of such prints and samples, but stipulates that it may only be used for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution. Where fingerprints or non-intimate samples were taken from a person who was not subsequently convicted by a court of law, the Bill stipulates that such prints and samples must be destroyed after a period of five years (refer to discussion under Certification). –This clause applies retrospectively to any convicted person serving a sentence at the time of the commencement of the Act.

13 Summary of Bill (cont) e)Thirdly, clause 2 inserts a new clause 36C into Chapter 3 of the CPA to provide the police with powers to take fingerprints, body-prints and non-intimate samples for investigative purposes, if there are reasonable grounds to suspect that a person has committed an offence and if the police believe that the prints or samples or the results of an examination thereof, will be of value in the investigation by excluding or including one or more of the persons as possible perpetrators of the offence. f)Clause 3 amends section 37 of the CPA in order to ensure that prints and samples taken under this section are no longer destroyed with immediate effect if a person was not convicted by a court of law, but are retained for a period of five years, to be used only for purposes related to the detection of crime, the investigation of an offence or the conduct of a prosecution. (Refer to discussion on Certification). Provision is made here and throughout the Bill for strict penalties to apply should prints or samples or the information derived from such samples be used in any manner or for any purpose other than those stipulated in the Bill. Prints and photographic images taken under section 37 (36B or 36C, if applicable) will be retained and stored on databases maintained by the Division: Criminal Record and Forensic Science Service of the SAPS. g)Clauses 4 and 5 merely affects certain consequential amendments to sections 212 and 225 of the CPA.

14 Summary of Bill (cont) h)Clause 6, firstly, inserts a new Chapter 5A into the South African Police Service Act, 1995, (SAPS Act), in order to deal with the storage and use of finger-prints, body-prints and photographic images of persons. i)Secondly, clause 6 also inserts a new Chapter 5B into the SAPS Act, in order to deal with the establishment, administration, maintenance and use of the National DNA Database of South Africa (NDDSA). In other jurisdictions, provision is often made for the establishment, management and administration of a DNA database in terms of separate legislation and under the auspices of an agency. In specifically deciding to incorporate the NDDSA within the SAPS, provision has been made in the Bill to ensure that these specialist functions fall under the police officer commanding the Division: Criminal Record and Forensic Science Service. This will ensure that full accountability rests with the official responsible and that delivery in accordance to the legislative provisions are not compromised.

15 Summary of Bill (cont) j)The Bill provides that the NDDSA consists of five indices, namely – (i)a Crime Scene Index containing DNA profiles loaded from bodily substances found at the crime scene; (ii)a Reference Index containing DNA profiles loaded from samples taken under Chapter 3 of the CPA (suspects); (iii)a Convicted Offenders Index containing DNA profiles loaded from samples taken from convicted offenders (applies retrospectively); (iv)a Volunteer Index contains DNA profiles loaded from samples given by volunteers with their informed consent; and (v)a Personnel, Contractor and Supplier Elimination Index, to be used only for quality control purposes. k)The Bill requires the National Commissioner of the SAPS or his or her delegate to develop recommended standards for quality assurance, including standards for testing the proficiency of the laboratories and forensic analysts conducting DNA analysis. l)The Bill also requires the National Commissioner of the SAPS to issue national instructions relating to a number of areas that will require special attention in order to implement the legislation, such as for instance the manner in which to secure a crime scene for purposes of collecting bodily substances.

16 Summary of Bill (cont) m)Clauses 7 and 8 affect certain consequential amendments to the Firearms Control Act, 2000 (Act 60 of 2000), in order to bring the provisions dealing with the powers of the police to take prints and samples in line with the new provisions in the CPA. n)Similarly, clauses 9 and 10 affect certain conconsequential amendments to the Explosives Act, 2003 (Act 15 of 2003), in order to bring the provisions dealing with the powers of the police to take prints and samples in line with the new provisions in the CPA.

17 Changes affected to the Bill during Certification by the State Law Advisers (SLA) The Department would like to flag two issues for the attention of the Ad Hoc Committee, in relation to amendments affected to the Bill during the Certification process: a)Firstly, the Bill as approved by Cabinet made provision for the indefinite retention of prints, samples and the information derived from such samples (DNA profiles) taken under any powers conferred by the Bill. In other words, the Bill had set out to specifically reverse the current situation whereby all such evidence had to be destroyed if a person from whom it was taken, is not subsequently found guilty by a court of law. (i)Experiences in other jurisdictions have shown that if such evidence is kept, it can lead to the successful prosecution of offenders years down the line, offenders who would otherwise not have been detected had there not been extensive databases in place. (ii)More importantly, it was also shown above that it is necessary to dramatically increase the number of suspects on the DNA Database, if the database is to be an effective investigation tool. (iii)During the certification process, the SLA however amended these provisions in the Bill to provide that such prints and samples and DNA profiles may only be retained for a period of five years, if a person from whom it was taken is not subsequently found guilty by a court of law. (iv)The Department is of the opinion that keeping such evidence indefinitely and using it only within the strict confines of the Bill, is not unconstitutional for it amounts to a justifiable limitation of the right to privacy or the right to equality, since the increase in the database of fingerprints and samples promotes the public interest by the detection and prosecution of serious crime and by exculpating the innocent and represents a proportionate response to the legislative aim of dealing with serious crime in South Africa. The promotion of a comprehensive legislative framework in this area is of paramount importance for the fight against crime and should there be any doubt as to the constitutionality of such an approach, it should best be determined by the Constitutional Court.

18 Changes affected to the Bill during Certification by the State Law Advisers (cont) b)Secondly, the Bill as approved by Cabinet provided that where a sample was to be taken from a child for purposes of the Volunteer Index, informed consent had to be given by a child’s parent or guardian and such consent cannot be subsequently withdrawn and thus such samples were to be retained indefinitely. The SLA amended this section to provide that unless a child was found guilty by a court of law such child could upon reaching the age of majority apply to a court of law to have his or her consent withdrawn and as a result his or her sample would be removed. The SLA argues that it was the parent or guardian who consented and not the child and therefore the child should upon reaching the age of majority have the option of withdrawing such consent.

19 BENEFITS OF STRENGTHENED FORENSIC CRIME FIGHTING CAPACITY The advantages of a strengthened forensic crime fighting capacity in these two areas can be summarized as follows:  A DNA database and an expanded fingerprint capacity are important crime-fighting intelligence tools, particularly in crimes where detection is generally low, such as property and violence related crimes and can lead to a significant increase in suspect-to-crime-scene matches. (The United Kingdom, for instance, has reported that the detection rate in property crimes where DNA samples have been collected and run against an expanded suspect database increased from 16% to 41%.)  DNA scene-to-scene matches help identify patterns of criminal behaviour that may help solve past, existing and future crimes. In other words, not only will an expanded fingerprint database and DNA database increase the likelihood of identifying unknown perpetrators, but it will also increase the possibility of linking perpetrators to multiple crime scenes.  Plea bargains and guilty pleas increase when suspects are confronted with real evidence, such as fingerprints and DNA evidence linking them to a crime scene.  It should also always be borne in mind that fingerprints and especially DNA evidence are used not only to prove guilt, but also to prove innocence. DNA evidence leads to the early exoneration of innocent people.  Importantly, we are expanding and strengthening tools of crime scene investigators and detectives to detect perpetrators, prepare proper dockets and increase the conviction rate.

20 Implementation Plan, including a business plan, costing this Project The implementation of the Bill will require significant capacity expansion in respect of both human and other resources, which will require funding to undertake the development of a business systems reengineering plan (including current and to be process mapping). Additional personnel will have to be trained and retention strategies, such as an occupation specific dispensation, must be implemented to retain scarce skills within the forensic science field. The Bill has been provisionally costed and a business plan has been developed to map the incremental implementation of the Bill. National Treasury has been consulted in order to secure a budget for the implementation of the Bill.

21 Conclusion In summary, the Bill has been drafted to – a)provide for the expansion of the SAPS’s powers to take and retain fingerprints and other biometric materials, especially DNA samples; b)provide the SAPS with access to fingerprint databases of other Government Departments for criminal investigation purposes; and c)provide for the establishment, administration and use of a DNA database as a criminal intelligence tool. Request to Ad Hoc Committee