Criminal Law (Forensic Procedures) Amendment Bill: Parliament Research Unit briefing

Meeting report

Summary of Main Issues for Consideration in the Forensic Procedures Bill
A parliamentary researcher, Ms Patricia Whittle, explained that the Bill sought to address gaps in the current legislation dealing with the collection, storage and use of fingerprint and DNA evidence. The Criminal Procedure Act (CPA) currently regulated only the taking of blood samples in criminal cases and the ascertainment of other bodily features. In light of that limitation, the Bill was introduced with these aims:
- to expand the powers of the police to collect and store DNA samples and fingerprints.
- to establish and administer a National DNA database, and
- to give the police access to the electronic databases of the Department of Home Affairs and the Department of Transport.

The parliamentary researcher spoke about her concerns about the Bill: 

Clause 2 Insertion of Section 36A, Section 36B Section 36C
She said she felt it was problematic that in terms of s 36A(1)(a), “any police official” was allowed to collect and manage photographic images, finger-prints or body prints. Given the need to secure the integrity of DNA samples from contamination, it was advisable that only police officials of a certain seniority and rank, who had undergone the required training and possess relevant qualifications, be designated as “authorised persons”.

Section 36(B)(7) provided that the Bill must be applied retrospectively, in terms of collecting fingerprints and samples of all prisoners and “where applicable” parolees. The parliamentary researcher wondered if this retrospectivity was desirable and also if SAPS had the capacity to implement this collection, storage and analysis of samples.

Section 36(B)(8) directed that all fingerprints and non-intimate samples or the information derived from such samples of non-convicted persons be destroyed after five years. The original draft Bill had placed no restriction and allowed for the storage of all fingerprints and samples (including for unconvicted persons) for an unlimited time period. Ms Whittle, a parliamentary researcher, recommended that the Committee consider the time period for the retention of samples for unconvicted persons. While the Department preferred that such samples never be destroyed, the State Law Advisors had decided that there were constitutional problems with this position, and recommended that the samples of unconvicted persons be destroyed as soon as a person had been declared not guilty.

Ms Whittle felt that the Bill was biased in favour of authorities because it stated that a person would be required to provide fingerprints and DNA sample but did not specify under what circumstances a person might refuse to comply with such a request. She suggested that some safeguards be built into the Bill.

Ms Whittle was concerned about section 36C that allows a police official to take fingerprints, body-prints and non-intimate samples of people without a warrant. She felt that this flouted a person’s constitutional right to privacy.  The Bill authorised a police official to take samples if it had “reasonable grounds” to suspect that an offence had been committed. She suggested that the Department set out criteria to determine what constituted “reasonable grounds”.  

Clause 3 Amendment of Section 37 of Act 51 of 1977
Clause 3 amended s37 of the Criminal Procedure Act by making some consequential amendments as a result of the insertion of the new s36B. Section 37 was amended to ensure that the prints and samples taken were no longer destroyed but were retained to be used only for purposes related to the detection of a crime, the investigation of an offence or the conduct of a prosecution. The provision was significant because it shifted responsibility from the police and authorised a registered medical practitioner to take intimate samples. 

Clause 6  Insertion of Chapter 5A into the SAPS Act
The presenter suggested that the Committee should seek clarity on why some of the National Instructions dealing with DNA would be tabled in Parliament, but not those dealing with fingerprints, body prints and photographic images. She urged the Committee to consider the input by the Deputy Minister about the measures within the Bill to ensure independence and accountability of the management of the National DNA database, from the SAPS as a whole, and whether these were sufficient. The Committee was asked to interrogate what “personal identification strategy services” the National Police Commissioner must develop in terms of Section 15C(3)(a).

Clause 6  Insertion of Chapter 5B into the SAPS Act
In terms of 15O(2)(a) “no DNA profile loaded onto the NDSSA may be destroyed”. Ms Whittle felt that this was contradictory to the requirement in terms of 15O(4) that DNA samples must be destroyed after 5 years where the person had not been convicted. The Bill seemed unclear about the retention of samples and profiles. The Committee needed to decide whether all DNA profiles once entering the database should be retained forever.

She felt that safeguards should be built into the Bill so that DNA evidence should not form the only basis on which the prosecution’s case was built. Proper detective and follow-up work must be done.

Ms Whittle’s conclusion included the following comments:
- The best legislation, equipment and facilities would not help if the proper training, expertise from especially SAPS members and the required forensic analyst capacity was not in place.
- The Department should provide a costing document as well as the Implementation Plan for proposed roll-out with clear time-frames.
- The Bill was not balanced as it favoured the authorities as opposed to those who were expected to provide finger/body prints and DNA samples. Attention should be given to set out remedies and recourse, as well as grounds for refusing a request to provide DNA evidence under certain circumstances.
- Finally, greater consideration should be given to the constitutionality of certain provisions in the Bill.

Discussion
Ms F Chohan (ANC) criticised the parliamentary researcher for exceeding her mandate. She argued that the presenter had no authority to make conclusions that the Bill was biased in favour of authorities as this was a determination that could only be made by political parties.

Ms Sotyu disagreed with her colleague’s opinion and expressed satisfaction about the presentation. 

Ms Whittle clarified that her intention was only to highlight certain aspects of the Bill for consideration and not supersede the Committee’s powers.

Ms Chohan insisted that some of the research was misleading, not factual, and therefore complicated the Committee’s work.

Ms A Van Wyk (ANC) appreciated the critical comments raised by researchers. Even though Members did not always agree with everything that was said, their input was considered valuable. In addition, she supported the presenter’s view that the Committee should follow up with SAPS about their state of readiness and capacity to implement the provisions of the Bill. She noted that Parliament had had to delay the human trafficking legislation because of capacity problems in departments such as Home Affairs.

Adv C Johnson (ANC) voiced her support for the valuable contribution made by the Research Unit. She stated that the Department would be afforded sufficient time to respond to any incorrect statements made by the researcher. Lastly, she questioned whether the National Database should be located outside SAPS.

Ms Whittle noted the comments made by the Members and indicated that she would respond to them at a later stage. In addition, she indicated that it was not her intention to mislead the Committee and that it had been her interpretation of the Bill.

Comparative Analysis: Criminal Law (Forensic Procedures) Amendment Bill
Ms Sueanne Isaacs from the Parliamentary Research Unit, acknowledged the need for the legislation and hoped that it would improve the conviction rates as evidence gathering techniques would be improved.

She summarised the different constitutional rights (equality, human dignity, freedom and security of the person, privacy, children) that might be affected by certain provisions of the Bill.

She noted that the courts had made the following conclusions about some of the constitutional issues:
- The removal of a bullet from a suspect’s body was a justifiable limitation of the right to bodily integrity. In a similar matter, it was held that the removal of a bullet from a suspect’s body was not justifiable.
- Requiring an accused to submit a voice sample did not violate his right against self-incrimination.
- In considering the Bill, Parliament must ensure that not only the need to fight crime was taken into account but also ensure that the values enshrined in the Constitution were protected.

She spoke about the approaches in other jurisdictions of the retention of fingerprints and DNA samples such as the United States of America, England and Wales, Canada and European Union (see comparative analysis document).

Discussion
Ms Chohan thanked the Research Unit for giving Members an insight about how this issue was being dealt with in other jurisdictions. She questioned whether the Research Unit had researched the issue of racial profiling and how this would be impacted on in the Bill. Secondly, she commented that the report should have expanded on the Constitution’s limitations clause in greater detail.

Ms Chohan found it significant that both Britain and 48 states in the USA allowed for the indefinite retention of data. 

Ms Van Wyk examined two issues. Firstly, she requested the Unit to investigate examples of countries where the DNA database had been abused. In addition, she probed whether safeguards could be built in when the Forensic Unit was located in the police services.

Ms Isaacs acknowledged all the questions, and indicated that she need time to respond to them.

Ms Sotyu thanked the Research Unit for all their efforts and the meeting was adjourned.