CIVILIAN SECRETARIAT FOR POLICE. PRESENTATION TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL DEVELOPMENT OF THE NCOP 11 SEPTEMBER 2013 CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL[B 9B-2013]

CIVILIAN SECRETARIAT FOR POLICE SCOPE OF PRESENTATION  Background Information……………… Slides 3, 4  Consultation with stakeholders……. Slide 5  Contents of the Bill………………………. Slides

CIVILIAN SECRETARIAT FOR POLICE BACKGROUND INFORMATION The Criminal Law (Forensic Procedures) Amendment Bill, 2013, was introduced in Parliament following the study tour abroad undertaken by the Portfolio Committee on Police together with officials from the South African Police Service and members of the Office of the Chief State Law Adviser. The Bill provides for the establishment, administration and maintenance of a DNA database to enhance criminal investigations. The Bill initially formed part of the Criminal Law (Forensic Procedures) Amendment Bill, 2009 which dealt with issues related to enhancing the use of fingerprints, especially interdepartmental cooperation to link different fingerprint databases for crime investigation purposes and the establishment of a DNA database. The Portfolio Committee on Police split the 2009 Bill and had the fingerprint part of the Bill finalised. The Portfolio Committee decided to conduct comparative research into the DNA issues before dealing with the aspects dealing with DNA. The DNA part of the Bill was referred back to the Minister of Police so that it could be aligned with the research to be undertaken by the Portfolio Committee and any findings and recommendations. 3

CIVILIAN SECRETARIAT FOR POLICE BACKGROUND INFORMATION  The Criminal Law (Forensic Procedures) Amendment Bill, 2013 was then drafted and aligned with common practices overseas.  Cabinet approved the introduction of the Bill to Parliament. The Minister of Justice and Constitutional Development agreed that the Minister of Police introduce the Bill, subject to consultation with the Department of Justice and Constitutional Development.  The Bill was taken through the development process and approved by the Portfolio Committee on Police.  The State Law Advisers and the Department of Police are of the opinion that the Bill should be dealt with in terms of the procedure established by section 75 of the Constitution of the Republic of South Africa, since it contains no provision to which the procedure set in section 74 or 76 of the Constitution applies. 4

CIVILIAN SECRETARIAT FOR POLICE Consultation with Stakeholders Internal stakeholders  The Ministry of Police  Civilian Secretariat for Police  National Commissioner: SAPS  SA Police Service (Forensic Services) Departmental & External stakeholders  Department of Health  Department of Correctional Services  Department of Justice and Constitutional Development.  National Prosecuting Authority  The initial Bill was widely consulted before it was introduced in Parliament.  Public hearings on the Bill were conducted during the Portfolio Committee on Police deliberations. 5

CIVILIAN SECRETARIAT FOR POLICE CONTENTS OF THE BILL CLAUSE 1  Amends terminology and inserts new definitions “authorised officer”, “bodily sample”, “buccal sample”, “crime scene sample”, “DNA”, “forensic DNA analysis”, “forensic DNA profile”, “intimate sample” and the “NFDD” (National Forensic DNA Database of South Africa”. The clause also substitutes the definitions for “authorised person” and “comparative search”. It also provides for the taking of buccal samples by an authorised person who is of the same gender as the person from whom such sample is required, subject to training requirements set by the Minister of Health and in a designated area, deemed suitable for that purpose. CLAUSE 2  Inserts a new section 36D in the Criminal Procedure Act, providing for categories of offences in respect of which a buccal sample MUST be taken by an authorised person or a bodily sample that MUST be taken by a registered medical practitioner or nurse, mainly in respect of the new Schedule 8 offences, which has been added to the CPA. The clause provides for such samples to be taken after the arrest of a person. It also allows for the self taking of buccal sample under the supervision of an authorised person. 6

CIVILIAN SECRETARIAT FOR POLICE CONTENTS OF THE BILL (contd.) CLAUSE 3  Also deals with forwarding of samples to the Forensic Laboratory, the re-taking of samples, subjecting samples to a comparative search, a limitation upon the use of samples or information derived therefrom and the retention and removal of such information or profiles from the NFDD.  The abuse of DNA samples or profiles is criminalised and punishable with imprisonment not exceeding 15 years for natural person and for a fine in respect of juristic persons. The clause further provides for intimate samples to be taken only by a registered medical doctor or registered nurse in accordance with strict decency.  Section 36E is inserted in the CPA to provide for the taking of a buccal sample of a person or group of persons during an investigation of an offence referred to in Schedule 8 to the CPA, where required, to include or exclude a person as a suspect in a criminal investigation. It also allows for a warrant to be obtain in a situation where such person or persons fail to give consent to the taking of buccal sample. 7

CIVILIAN SECRETARIAT FOR POLICE CONTENTS OF THE BILL (contd.) CLAUSE 4  Substitutes section 212(6) of the CPA to include bodily sample or crime scene sample, with section 212(8)(a) providing for the collection of specimen. CLAUSE 5  Substitutes section 225 of the CPA to include bodily samples, crime scene sample or DNA profiles. CLAUSE 6  Provides for the addition of Schedule 8 of offences in respect of which DNA samples may be taken. 8

CIVILIAN SECRETARIAT FOR POLICE CONTENTS OF THE BILL (contd.) CLAUSE 7  Provides for the insertion of Chapter 5B in the South African Police Service Act, to provide for the establishment, administration and maintenance of a National Forensic DNA database, consisting of a Crime Scene Index, Arrestee Index, Convicted Offender Index, Investigative Index, Elimination Index and Missing Persons and Unidentified Human Remains Index, which also allows for ‘familial searches’. It also gives different periods for the storage and removal of forensic DNA profiles in the other indices from the NFDD. It also provides for comparative forensic DNA searches and communication of information, foreign and international law enforcement agencies, compliance with the quality management system, provides for the analysis, retention, storage, destruction and disposal of samples, except for the Crime Scene Index which have to be retained indefinitely, it further provides for the infrastructure, offences and penalties, awareness and training programs, issues relating to access and security of NFDD, establishment and composition of the National Forensic Oversight and Ethics Board, disqualification, removal and resignation from the Board, meetings of the Board, funding, secretariat and remuneration of members of the Board, functions of the Board, procedure for handling of complaints, disciplinary recommendations, Parliamentary oversight and Regulations. 9

CIVILIAN SECRETARIAT FOR POLICE CONTENTS OF THE BILL (contd.) CLAUSES 8  Provides for the transitional arrangement, also giving timeframes within which forensic DNA profiles should be transferred to the NFDD after it becomes operational, including the cooperation between the National Commissioner of the South African Police Service and the National Commissioner of Correctional Services regarding the taking of buccal sample of any person serving a sentence of imprisonment for offences falling under Schedule 8.  It provides further for members of the National Forensic Oversight and Ethics Board to be appointed before the commencement of the Act and that the Board must hold its first meeting within 30 days after the commencement of the Act. CLAUSES 9  Repeals certain definitions of the Firearms Control Act, 2000 and also the Explosives Act, 2003 to align them with the Bill, partly repealing a section in both Acts dealing with obtaining bodily samples, which matter is already covered in the legislation dealing with fingerprints and DNA. CLAUSE 10  Provides for the short title and commencement of the Act. 10

CIVILIAN SECRETARIAT FOR POLICE 11 THANKS Q & A