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Feedback from Interpol DNA User’s Conference

Wednesday, September 29th, 2010

This time last week I was sitting at the Interpol Headquarters in Lyon, France listening to the Chief of the USA FBI CODIS Unit talk about International DNA Exchange methods. This was only one of approximately 35 fascinating presentations delivered by representatives from over 50 countries. As you may well imagine, participating in a conference of this magnitude was extraordinary, and the value of being able to interact with the other representatives: priceless. A special mention of thanks needs to go to our generous sponsor, The Open Society Foundation for South Africa, which enabled us to attend this incredible conference.

Members of the Interpol DNA Monitoring Expert Group at the Conference

The keynote speaker was a highly respected Australian Forensic Scientist by the name of Dr Simon Walsh. Dr Walsh is the Co-ordinator of the Australian DNA Database who spoke about, amongst other topics, ‘New Technologies & Techniques in the 21st Century use of DNA‘. We heard about what he termed “the triumvirate of interests” which is the critical interplay between the police,  forensic scientists and the justice system. If you absent one of these 3 critical components when trying to implement a DNA Criminal Intelligence Database, the success of any DNA Database will fail to reach its expected outcome. This needs to be considered in great detail in a country such as South Africa where both our justice system and SAPS are fraught with problems. These challenges however are not unique to South Africa, and the way in which other countries have dealt with this, is by the implementation of a DNA Expansion Board or body of people, represented by the various departments as well as ethicists and parliamentarians and any other group relevant to that administration who collectively oversee the development of the DNA Database. I have spoken about this type of overseeing body on many occasions in the past and still believe that this approach would work well in South Africa, which in fact has the benefit of an already established DNA database as well as a functional forensic laboratory. Whether the Portfolio Committee reviewing our current legislation recognises this critical requirement however, is yet to be seen….

Carolyn and I arriving at Interpol Headquarters on the first day of the Conference

On a more complex level, and probably more relevant to countries such as the UK, Australia and the USA who have developed and utilised their DNA Databases successfully as criminal intelligence tools, Dr Walsh’s presentation went further to explore an inferential model for DNA database performance using data from major national DNA database programs. The parameters that optimise desirable database outputs (matches) were isolated and discussed, as was his approach for maximizing financial efficiency and minimizing ethical impact brought about by the successful implementation of DNA databases. Dr Walsh’s research takes important steps toward identifying measures of performance for forensic DNA database operations and should you wish to know more about his formulas he has developed to measure DNA Database outcomes, feel free to email me at info@dnaproject.co.za and I will send you the paper he has recently written on this subject.

What struck me most at the conference was the extent to which the majority of the countries government’s represented at the conference, were willing to put in whatever resources were required to establish and maximise the effectiveness of their respective DNA databases. It was also sobering to see how seriously they took crime and in some countries a stolen car was considered to be headline news and worthy of 24/7 resources to catch the perpetrator. You can just imagine the reaction that followed my presentation where I described the current situation in South Africa, spoke about my experience when my father was murdered and ended off the presentation with the VUKA ad which highlights the severity of crime in our country. To say that the audience was left in stunned silence at the end of my presentation, is perhaps an

Vanessa Lynch presenting at the Interpol DNA Conference

understatement. I think we all know how de-sensitized we are to crime in South Africa, but when people came up to me afterwards and told me they had literally choked-up during my presentation, I realised how far removed we really are and how dangerous this can be as it moves us into a place of acceptance of an absolutely, unequivocally unacceptable situation. And people kept asking me – but WHY doesn’t your government do something about this and WHY is it taking so long to pass this legislation which will convert all those unprocessed rape kits I had shown them, into a DNA profile which may lead the CSI’s to the perpetrator to STOP them from re-offending. And the best question: but WHY doesn’t your government or your parliamentarians RESPECT these victims and future victims of crime enough in your country to do something about this? Yes, WHY indeed?

Carolyn and Vanessa in the Interpol Headquarter's Garden

On the other end of the scale we heard from the United Arab Emirates (UAE) how they  have been given 1 BILLION US$ to implement a population database in their region – their crime rate, I recall, is something in the region of 950 reported crimes over 10 years?! The reason – to prevent future crime from occurring! Whilst this is not a realistic option in most parts of the world, it sparked serious debate amongst the audience in respect of the value and ethical considerations a population database would bring about. For those not familiar with the term ‘population database’, it simply means that instead of focusing on putting the criminal population on the DNA database, it puts the entire country’s DNA profiles on the database which creates a larger reference pool for matching purposes when a crime occurs and a DNA profile is uplifted from a crime scene. Theirs is going to be the first population database in the world, and what I found most significant was that legislation was not listed as a ‘requirement’ for its implementation! This is because, and I quote, “Legislation will be taken care of by the Minister of Interior”! No questions asked.

We thoroughly enjoyed listening to some fascinating case studies presented by different countries over the course of the 3 days, all of which obviously showed how DNA was used to track the perpetrator of the crime, and in some cases, from as far back as the early 1970′s and throughout the world using Interpol’s International DNA Database.

We were also shown a very exciting new website called the  “Forensic DNA World Map Project “. The World Map Project provides forensic scientists, criminal justice professionals and lawmakers with access to the policy, legislative, legal and technical knowledge-base of the countries throughout the world that have operational DNA database programs.  It is a free service but is limited to those individuals pursuing the information for the purpose of developing and refining forensic DNA policy.  One can apply for a password and if given, those Users may request additional country-specific information, such as enabling legislation, DNA database reports, presentations, statistical data, technical standards and media.  The WMP can also connect users with forensic DNA databasing leaders throughout the world.  I am going to suggest to our Parliamentary Researcher that she apply for a password to access this database and that she disseminate same to members of our Portfolio Committee – this is probably what they really need to look at to inform themselves of  International Best Practice (IBP) – in other words, an armchair tour of the World’s DNA Policies may be all they need to learn the most about how this technology is being implemented internationally and the issues and challenges each of those countries has had to deal with!! I have looked at the site and it is arguably one of the most informative portals when it comes to looking at IBP in this arena.

There was also a lot of discussion around familial searching, which is used mostly for DVI (Disaster Victim Identification) but in a more regulated way, to establish a link to the perpetrator when they pick up a familial link on the DNA database between a crime stain and a profile which already exists on the database. Judge Arthur Tompkins presented some very sound and objective arguments on both the legal and ethical issues surrounding the use of familial searching. Having listened to these discussions I think it would be prudent for South Africa to consider inserting a provision in our new DNA legislation to regulate this area of the database.

Judge Tompkins also provided us with very valuable insight into the lessons learned from the outcome of the contentious S & Marper cases which reached the European Human Rights Courts. I so wished even ONE member of our Portfolio Committee could have been there to participate in these discussions, as they have stated on more than one occasion that they are considering the outcome of this case in the review of our legislation.  This case you may recall, centres around the retention of ‘innocent’ profiles on the database where the person is subsequently acquitted or the case is dropped. What you may find interesting, is that “S” is a person named Smith who was a minor at the time of his DNA profile being loaded onto the database. Smith was not subsequently convicted. But how ironic is this: Smith was recently linked to a crime he was found guilty of committing – how? Because his DNA profile found on the crime scene matched his ‘innocent’ profile on the database….

Carolyn and I left the Interpol Headquarters last Friday with our heads full of new information and new ideas; new friends and allies and more importantly renewed motivation. We received such wonderful support for the work we are doing in South Africa – everyone found it completely unique (and not surprisingly, somewhat strange!) that a non-government organisation was necessary in a country like South Africa where we provide DNA awareness, grass roots training, skills development and most importantly a public voice to try and convince the relevant governmental powers of the value of a criminal intelligence DNA database. Be that as it may, we will continue with our mission to ‘fight crime with science’, and whilst we are not advocating that this is the ‘silver bullet’ to resolve crime, it certainly remains a mystery as to why South Africa has not leapt at the opportunity to more fully use this phenomenal technology where accountability for crime has not yet been achieved.

Should you wish to know anything further about the conference, feel free to email me on info@dnaproject.co.za

Vanessa

Posted in Crime Scenes, DNA Project, Forensic Career, Legislation, Links, Newsletter | 1 Comment »

DNA: The crime-fighting tool that needs to be used

Friday, September 3rd, 2010

This article was featured in The Witness, 3 Sep 2010 on Page 9.

DNA: The crime-fighting tool that needs to be used
03 Sep 2010

Dr Carolyn Hancock, a Director of The DNA Project

EARLIER this year Rudi Venter, who had been charged with the murder of his wife, walked out of court a free man. DNA evidence had determined he was innocent.

Venter’s wife was beaten to death with a baseball bat at their Johannesburg home in 2006. At the time, Venter said he had returned home after taking his children to school and seen two men running from the house before finding his critically injured wife. Venter was arrested for her murder a year later. Just before he was due to go to trial in February, his legal team asked an expert to interpret the DNA results from material found at the scene. It was found that DNA samples obtained at the scene contained the blood of Venter’s wife and two unidentified men. Venter’s blood was not present anywhere. Consequently, the state withdrew the murder charge.

If the DNA found at the scene had been processed at the time as a matter of routine, Venter would not have spent four years with a murder charge hanging over him.

“DNA does not only prove guilt, but it can also prove innocence,” says Dr Carolyn Hancock, a director of the DNA Project and a former genetics lecturer at the University of KwaZulu-Natal.

“In the United States, 258 people have been freed from prison on the basis of DNA results. The average time they had spent in prison was 13 years. Seventeen of them were on death row for crimes they never committed.”

Currently, this cannot happen in South Africa as the processing of DNA for forensic purposes by the South African Police Force Forensic Science Laboratory is prioritised according to five categories. Top of the list is a request from prosecutors when they have a suspect. The laboratory then undertakes to do a complete DNA analysis within 120 days or by trial date.

Bottom of the list are those cases with no known suspect. “This is what we believe should change,” says Hancock. “With a DNA database, reoffenders would immediately be identified.”

For this to happen, aspects of the Criminal Procedure Act of 1977 need to be amended in order for the country’s police force to be able to routinely use DNA for forensic purposes. The act is out of date; back in 1977, nobody had started using DNA for forensic purposes and consequently the act doesn’t specifically regulate the use of DNA for criminal intelligence purposes.

To address this omission, the Criminal Law Forensic Procedures Amendment Bill was drafted in 2008. It deals with the use of DNA and looks to allow police access to fingerprint databases other than their own, such as those of the departments of home affairs and transport, which routinely take fingerprints for identification purposes.

The draft bill was subsequently divided into two parts — one dealing with fingerprints, the other with DNA. The fingerprint legislation has been adopted. As a result, in addition to about five million fingerprints recorded by the SAPF, the police will now be allowed to search the other databases and access around 33 million fingerprints.

The DNA part of the bill is on hold while the parliamentary portfolio committee overseeing the bill reviews presentations regarding the issue and travels overseas to see how DNA analysis is done in other countries. It is unlikely that any decision will be made on the bill until next year.

If the bill is passed, which seems likely, capacity issues will have to be addressed if it is to be implemented effectively. One solution, given the lack of capacity of the SAPF, would be to outsource work to private laboratories.

“The capacity does exist out there to make this work,” says Hancock. “The immediate demand could be met. The use of private labs for the analysis of reference samples taken from arrestees would be a short-term solution, but they are used everywhere else and it is regarded as international best practice.”

But there remains a need for more qualified personnel within the SAPF and to that end, Hancock, as part of an initiative funded by the sponsors of the DNA Project, has been instrumental in developing a post-graduate qualification in forensic DNA analysis so that the state will have access to well-qualified personnel. This degree is already being offered at the University of the Free State and will be offered next year at the University of Cape Town. “The course material is freely available to any South African post-graduate institution,” she says.

Although the draft bill might be on hold, the DNA Project is promoting and publicising the use of DNA analysis in the fight against crime. The DNA Project is a non-profit, public-benefit organisation lobbying for the expansion of a national DNA database and it proposes that DNA profiles be created from DNA samples collected from crime scenes and from all those suspected or convicted of a crime.

“In this country, such a database would be hugely beneficial because of the number of criminals who reoffend,” says Hancock. “If you get them on the database the first time they commit an offence, then if you don’t convict them for their first offence you will hopefully do so when they reoffend.”

The DNA Project has just launched a new campaign aimed at promoting DNA awareness in South Africa. “We are primarily targeting community police forums and security companies,” says Hancock.

“The latter are often the first on a crime scene. You press a panic button and they are the first to respond. We want to ensure that anyone who is first at a crime scene ensures that any DNA evidence is preserved as it can easily be contaminated or destroyed. This evidence should be collected by trained SAPF crime-scene investigators.”

This nation-wide campaign sees the DNA Project offering free DNA awareness workshops to educate people as to the benefits of utilising DNA evidence for crime detection and prevention, and the need to contain and not contaminate a crime scene. “We would like to offer these workshops, which are free of charge, to those who are likely to be the first to arrive at a crime scene. For example, first responding officers, security guards, police reservists and paramedics.”

The DNA project is hoping to get this message to 10 000 people this year and they also have government funding to reach as many schoolchildren as possible. “Genetics is part of the school curriculum,” says Hancock, “and forensics is something they study — and many of them watch CSI on TV.”

The workshops will provide a basic understanding of how DNA profiling can be used to assist in criminal investigations in South Africa and the importance of preserving DNA evidence which may be at a crime scene. “This is essential as no matter how good our legislation or our laboratories are”, says Hancock, “we need to have the evidence properly preserved and collected at the crime scene.”

FORENSIC DNA evidence plays a vital role in criminal investigations because it can identify and help convict a suspect who is guilty of committing a crime or prove the innocence of a suspect who has been wrongly accused of a crime.

WHAT IS DNA? WHERE IS IT FOUND IN THE BODY?

DNA stands for deoxyribonucleic acid. This is the name for the chemical which is found in almost every cell in the human body and which is the blueprint or recipe for that person’s characteristics. Everyone’s DNA is unique (unless they have an identical twin). A person’s DNA is also exactly the same in every cell of their body. For example, the DNA pattern, also known as the DNA profile, in a human’s blood is the same as the DNA in his or her skin cells, body tissue, semen and saliva, which makes it possible to compare crime-scene evidence such as semen stains, saliva on cigarette butts and blood on clothing, with DNA obtained from a blood sample or cheek scraping taken from a suspect.

WHAT IS A DNA PROFILE?

A DNA profile is simply a unique list of letters and numbers obtained from a person’s DNA that acts as a personal identifier. A DNA profile contains no information about a person’s physical characteristics, their mental predisposition or anything about their medical his-tory. In the same way as fingerprints link a suspect to a crime, DNA provides scientific evidence that can identify or exclude a suspect from a police investigation. It can also be used to identify a victim through DNA from relatives, even when a body cannot be found. DNA profiling can also link two or more crime scenes. When evidence from one crime scene is compared with evidence from another, the police can tell whether it was the same person who had committed two different crimes. Even very old cases, which the police thought would never be solved, may contain DNA evidence that can be used to identify the person who committed that crime.

HOW CAN DNA HELP TO IDENTIFY A SUSPECT?

Once DNA samples have been collected from a crime scene and processed at the Forensic Science Laboratory, the DNA profile, which is the identification number taken from the DNA sample, can be compared with the DNA profiles taken from a known suspect. If no known suspect exists, the DNA profile taken from the crime scene is still valuable, as when it is entered onto the national DNA database, the police can see whether that DNA profile links to another known DNA profile on the DNA database or perhaps it may even link several different crimes to each other.

— DNA Project.

DNA DOES NOT ONLY PROVE GUILT, BUT IT CAN ALSO PROVE INNOCENCE. IN THE UNITED STATES, 258 PEOPLE HAVE BEEN FREED FROM PRISON ON THE BASIS OF DNA RESULTS. THE AVERAGE TIME THEY HAD SPENT IN PRISON WAS 13 YEARS. SEVENTEEN OF THEM WERE ON DEATH ROW FOR CRIMES THEY NEVER COMMITTED.

Posted in Crime Scenes, DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Links, Newsletter, Press | No Comments »

DNA Laws are being passed everywhere but here!

Monday, August 23rd, 2010

Many of you may have caught Carte Blanche last night where I was interviewed on behalf of The DNA Project (click here if you missed the Carte Blanche interview). The overwhelming message was that we urgently need to pass DNA legislation in SA in order to utilize our DNA Database in such a way that it provides criminal intelligence. DNA is the gold standard for criminal investigation throughout the world and yet here in SA, where it is needed the most, we are being held to ransom by the members of Parliament who have yet to resume deliberations on the DNA Bill.

Why? Why are our Parliamentarians so slow on the uptake to implement laws to regulate this amazing technology which we have at our disposal?

The first phase of the DNA Bill which dealt with fingerprints was adopted in March 2010 – it is now August 2010 and we have not heard a word from the Portfolio Committee as to when they will be returning to Parliament to consider Phase Two – DNA. The World Cup is over, and everyone else seems to have gone back to ‘business as usual’, but every inquiry I make as to the whereabouts of the people who are supposed to be looking at this bill, are met with a blank stare or worse yet, “I don’t know”. This is unacceptable. But what can we do about it? We can speak up! That’s what.

Have a look at the following link: http://www2.wnct.com/news/2010/jul/15/13/dna-sample-testing-system-expanded-new-nc-law-ar-300849/

Don’t you wish we had more politicians who acted like the Governor of North Carolina in the USA, Bev Perdue? How many of our politicians have been effected by a violent crime just like she was? But what are they doing about it?

Perdue calls DNA testing the 21st-century fingerprint and she believes it will help prevent violent crime across her state. “In many, many cases DNA becomes the difference maker,” says Governor Bev Perdue. Starting in February, police across North Carolina will take DNA samples from anyone charged with murder, rape, or other violent felony crimes. The General Assembly passed the bill in July 2010.  Officers say it will prevent crime and solve cold cases. “It also helps us exonerate the innocent because it is so precise,” said Roy Cooper, North Carolina Attorney General.

Perdue says DNA samples will keep repeat offenders off the streets, preventing crimes like the murder of her dear friend Kathy Taft.

“This became personal to me especially because one of my 30-year best friends was murdered during the spring,” said Perdue. DNA testing was used to bring Taft’s murderer to justice in May this year.

The North Carolina State law enforcement has solved nearly 1,400 crimes using the existing DNA database.  Now with earlier testing, they’re looking to solve even more.

And I love this message from Perdue for lawmakers who still call DNA testing unreasonable search and seizure. “We have 21st century science and technology that allows us to catch really bad people faster and it is really unreasonable for the elected leaders and all of us to not move forward to make our streets as safe as we can,” she said. Hear! Hear! (wish you were here!)

Attorney General Roy Cooper says the law has privacy safe guards.  It’s a felony to misuse DNA and law officers will delete DNA records from the state’s database if the person is acquitted or their charges are dismissed. In addition, Law enforcement from the local level to the SBI will now of course have new responsibilities and they’ll undergo training on how to use the swabbing kits for collecting DNA.

Now, how difficult could that be to implement in SA? What exactly is preventing us from writing a story like the one above?

Vanessa

ps. since writing this blog, one of the portfolio committee members tasked with reviewing the bill has responded to my email requesting further information on the lack of progress of the bill – see the below commentary to follow what has transpired to date. I will continue to post the responses as I receive them. V.

Posted in DNA Detective, DNA Project, Forensic Career, Latest News, Legislation, Links, Newsletter, Press | 5 Comments »

Carte Blanche features Vanessa Lynch talking about DNA Legislation

Sunday, August 22nd, 2010

DNA
Date: 22 August 2010 07:00
Producer: Eugene Botha
Presenter: Chantal Rutter
Show: Carte Blanche
To watch the show on-line click here for part one and click here for part two of the story.

1979: A grim scene in a Los Angeles suburb. An elderly woman is found dead on the floor of her kitchen. There’s evidence that she was also sexually assaulted.

David Doan (Deputy Chief: LAPD): ‘There were a number of leads on that case. There was even a possible suspect – a neighbour – but there was not enough evidence to establish that he committed the crime.’

But the case went cold, says David Doan, Deputy Chief of the Los Angeles Police Department.

David: ‘What we refer to as ‘cold cases’ means a case where the trail has gone cold on leads… there are no further leads.’

All the evidence, including clothing stained with semen, was put into storage. But the case was not forgotten.

David: ‘Here in the Los Angeles Police Department we never close our homicide cases, we always consider them open.’

In 2003, 18 years after the murder, DNA profiling had become a useful tool in solving crimes.

Cold case detectives re-investigated the case. They sent the victim’s clothing for analysis and obtained a DNA profile of the murderer.

This unknown profile was then entered into their DNA database system, known as CODIS.

David: ‘In 2009 an individual was stopped for driving a stolen vehicle. His DNA was taken and we received what we refer to as a ‘cold case match’. He happened to be 17 years old at the time when he committed the crime and he was 51 years old when we identified him as the suspect in the case – another example of an individual who would not have been held accountable for the murder of this elderly woman if it had not been for a DNA database.’

And, all over the world, DNA profiling and DNA databases have become major tools in crime fighting.

David: ‘I cannot imagine doing police work today without DNA no more than I would be comfortable today seeing police work without fingerprints and photographs.’

One would think that using DNA in this way would be standard practice wherever profiling is available. But it’s not.

The LA murderer would never have been caught in South Africa, and not because of backlogs.

There’s another reason.

Vanessa Lynch (Director: DNA Project): ‘Where we fall short is that we’re not progressing with our legislation as we should.’

Vanessa Lynch is Director of the DNA Project, and promotes the use of a DNA as a crime fighting tool. She says the SAPS’s DNA profiling capabilities are excellent.

Vanessa: ‘The quality of the processing, the DNA analysis that is coming out of our laboratories, is in fact superior.’

Although we’ve often reported on the massive backlogs in processing forensic evidence by both the police and the Health Department, the DNA profiling unit at the Police Science Laboratory is apparently world-class and delays are minimal.

Vanessa says the problem is that current legislation is outdated and prevents the full use of DNA to solve crimes. New forensic legislation has already been sitting before a parliamentary committee for more than two years.

Vanessa: ‘But what they did was they split it between fingerprints and DNA. Initially it dealt with both. The committee has just passed Phase 1 of the bill, which is fingerprint, and now it has been passed through the national assembly and various areas of parliament. They will then look at Phase 2. They have decided, however, that they want to go on an overseas tour to both the UK and Canada to look at how other systems operate.’

While our legislators are battling, other countries have addressed many of the problems pertaining to forensic DNA profiling.

To understand the issues involved, one first has to understand what forensic DNA profiling entails.

Colonel Luhein Frazenburg of the SAPS’s Forensic Science Laboratory in Pretoria explains.

Col Luhein Frazenburg (Commanders: DNA Case Work): ‘Basically what we do here is we do all DNA analysis for all DNA cases in South Africa. Blood samples, semen samples, saliva, any human tissue is tested here.’

Chantal Rutter (Carte Blanche presenter): ‘Colonel, what is DNA?’

Col Frazenburg: ‘DNA stands for Deoxyribonucleic Acid. It is a molecule that’s present in all living cells. It’s the genetic blueprint of a person. Now basically half of your DNA you get from your mother and half of your DNA you get from your father. Also, your DNA does not differ over your lifespan and all your DNA is the same whether you look at your hair samples, your blood samples, bone, or tissue samples.’

Luhein showed us around the state-of-the-art forensic science laboratory.

Chantal: ‘This is something really special. It’s one-of-a-kind and it is right here at the police forensic laboratory in Pretoria.’

It’s the only fully automated DNA profiling system in the world and was developed right here in South Africa. It can process 800 samples a week. And it’s in part thanks to this machine that there are no DNA profiling backlogs in Pretoria and only a few in the Cape.

DNA profiling entails extracting and analysing a DNA strand from a human cell.

Vanessa: ’95% of your DNA, they in fact don’t know what it codes for. About 5% of your DNA they know you have blue eyes or two legs… two arms, etc. But the 95% which they call ‘junk DNA’ or ‘non-coded DNA’ in fact doesn’t code for anything that they understand.’

There are millions of these pieces of non-specific DNA.

Vanessa: ‘They only take nine numbers out of those millions of markers of your non-coded DNA and that’s all they need to identify you as an individual.’

Each of these nine selected areas on the DNA strand contains contributions by one’s parents. They can be expressed by a pair of numbers. So, in effect, your forensic DNA profile consists of a list of nine pairs of numbers.

The chance of two people having the same numbers in the nine pairs is one in 79 trillion. In the US, they use 13 pairs of numbers for a forensic profile.

Vanessa says that the lack of proper DNA legislation in South Africa prevents the police from fully utilising this invaluable identification tool to solve crimes.

For example, current laws don’t allow for DNA evidence obtained at all crime scenes to be processed.

Vanessa: ‘If you collect DNA evidence from a crime scene, but you don’t have suspect, they won’t process that DNA profile.’

Furthermore, our outdated legislation prevents the police and other law enforcement officers from taking DNA samples from suspects.

Vanessa: ‘A DNA sample currently is taken by way of a syringe by a medical practitioner. This is by virtue of an old 1977 act which was promulgated long before the advent of DNA profiling.’

And, under current legislation, the right of an individual to privacy is perhaps the main issue. Taking a DNA sample and preserving it on a database is seen as an invasion of privacy.

So unless DNA was involved in convicting them, the DNA profiles aren’t taken from convicted murderers, or rapists already serving time. Vanessa thinks privacy fears are unfounded.
Vanessa: ‘Even if somebody, for instance, got hold of the DNA database and looked at those sequence of numbers, there is nothing they can do with them. They cannot read any genetic disposition, whether physical or medical, from those sequence of numbers. And that is why throughout the world it has never been challenged constitutionally. It does not represent an invasion of privacy and we need to understand this in South Africa.’

So maybe another overseas trip for parliamentarians is not such a bad idea after all.

Vanessa: ‘Perhaps they’ll realise when going there, not only that it is successful in terms of crime resolution, crime investigation, and ultimately crime prevention, but also that all the issues that they are concerned about have legitimately been addressed by virtue of legislation that has been passed that shows that it is not an invasion of rights and that it is okay for a police officer to take a swab from you in order to take a DNA sample.’

David: ‘I think we need to find a compromise between a right to privacy and an ability for law enforcement to find people who have committed some pretty heinous crimes. And I think the method that we’re using currently gives you that balance.’

And if these issues can be resolved, our tiny DNA database of 123 000 profiles could be significantly expanded. It could then be used for cross-referencing like databases elsewhere in the world.

Chantal: ‘So, in what way do you think legislation should be changed?’

Col Frazenburg: ‘Well, it would be advisable to have as many as possible of arrestees on the database so that you can compare that to the crime samples that we get it.’

In parts of the world where national DNA databases have been implemented, crime solving has skyrocketed. And there’s another benefit.

Vanessa: ‘It becomes such a strong form of evidence that when a suspect is presented with a positive DNA match that links them to the crime they plead guilty. In the UK, 82% of suspects that are presented with this type of evidence, plead guilty – 82%! You can imagine what that does to your criminal justice administration.’

Deputy Chief Doan says those cases solved with DNA profiles did not violate anyone’s rights.

David: ‘We don’t think these people’s privacy, the suspects’ privacies, were violated because I don’t know anything about their genetic history. I simply know what their DNA looks like in 13 places.’

But until we have new DNA legislation in place, criminals will continue to get away with murder in this country.

Vanessa: ‘I think it needs to be urgently addressed because I think two years is already too long to have waited to pass this urgently required legislation.’


Posted in DNA Project, Events, Legislation, Links | No Comments »

Where have all the police gone?

Wednesday, July 21st, 2010

It seems that most things are back to  ‘business as usual’ post the world cup, which took not only SA, but the rest of the world by storm. We seem to have been left with a wonderful sense of goodwill, patriotism, and a realisation, that if our Government really wanted to, they could control crime…. The stats on crime levels over the World Cup period are going to be released at the end of the year, and it will be interesting to see whether the crime rates rose thereafter. We all know they decreased over Jun/Jul, so only time will tell if the ‘back to business as usual’ principle applies to our SA Government relapsing into not being able to control the crime spiral we have come to live with.

Basically it all boils down to VISIBLE POLICING! They implemented it in NYC to great effect; the Western Cape have been pushing for it over the last few years to good effect and it was used during the World Cup to demonstrate how effective it really is.  We should be pushing for visible policing as one of our basic rights in this country and must be careful not to fall down the slippery slope of complacency and acceptance the further we move away from the “Great World Cup”.

My last blog published a tender from the State Forensic Lab inviting private labs to bid for business to assist the state labs with processing capacity. I received a number of queries subsequent to this blog entry around why it is important and what it means for SA. The below questions and answers hopefully cover most of the issues raised, but please feel free to email me should any other issues surrounding this bid remain unclear:

Why is this bid important and what does it mean for The DNA Project and SA?
A dynamic common to most countries that implement forensic DNA databases is the necessary development of a private sector market.  This is a natural result of the passage of database legislation.  Few country laboratory infrastructures were designed with forensic DNA databasing in mind. And the passage of legislation results in an immediate and large volume of offender testing that needs to be accomplished in order for the database to be effective.  Also, offender sample testing is conducive to automation and doesn’t require the same level of “bench” expertise that law enforcement crime scene specialists should be doing.  Ultimately, private sector automation is a more cost effective way to approach such testing.  The development of a private sector market contributes to cost efficiencies.  In the United States, when databasing first began, offender samples were being analyzed at approximately $80 per sample.  Because of competition, samples are now analyzed at less than $30 per offender sample. The DNAP has engaged widely with private forensic labs throughout South Africa who are willing to assist the state labs with their throughput capacity. We welcome this move by the state forensic labs to explore future private-public partnerships in order to facilitate the backlog and implementation plan proposed by the police to the portfolio committee to ensure the ultimate success of the legislation.

There are  three parts to the tender (apart from the general laboratory requirements): Training of SAPS personnel to collect non-invasive samples; DNA extraction/non extraction and the actual profile laboratory service.   The difficulty for anyone submitting a bid will be the lack of detail and commitment from SAPS FSL.

Service providers are advised to submit their questions and concerns to the office of SAPS SCM (Ms Jacobeth Majola) where the bid documents were collected.

In order to make any commitment, a laboratory service provider would need guaranteed sample numbers before making the substantial instrument and infrastructure investments.   A one year contract is simply too short to recoup the investment.   By the time the tender is awarded some months would have been lost from the twelve month period.   Next will be the time required to train SAPS personnel to collect samples before a single sample can be run.   However, if the database is to include, for example, all current and future prison inmates, SAPS and military personnel this could be a starting point to submit potential sample numbers for profiling.   This would assist potential service providers drawing up a business plan and possibly submitting a meaningful bid.

(1) The training of police officials to take non-intimate samples is not dependent on the Forensic Amendment Bill. The new National Heath Bill regulations permit SAPS officials to take non-intimate samples— hence SAPS require that officials at all Police Stations are trained to take the non-intimate samples when the contract is awarded. Thus officials will not be required to take suspects to a medical practitioner anymore to take the non-intimate sample- provided they are trained in terms of the National Health Regulations.

  (2) It may be unlikely that the same service provider who will perform the DNA testing services will also be performing the training of officials to take the non-intimate samples.  
* the lab performing the testing will not be required to train officials to take samples
* until the legislation is finalised, there will not be large scale DNA testing services required by the private     laboratories- pilot projects will be run
* the bids do however provide SAPS an opportunity through a formal process to report to parliament on the interested     capacity of service providers 

. (3)  Service providers must bid on their existing DNA testing capacity (indicate what is the absolute minimum quantities that will justify them to provide the service) and   also indicate what expansion they are capable/willing to do and lead time to provide the increased sample typing service.

  (4) The fact of one year for a contract being too short has been noted by and communicated to the appropriate SAPS principals.

The Portfolio Committee will be looking closely at the private sector capacity on their return from their overseas tour of International Forensic Labs, and as such it is vitally important that the private sector come on board to assist the state labs with processing capacity – the more profiles that are processed and entered onto the database, the greater the chance of a match being made.

Finally, here is an opportunity for the good guys to make money out of crime! Don’t let this opportunity pass you by.

Vanessa


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valuable commentary on a DNA Database as a crime fighting tool

Tuesday, January 26th, 2010

I have been doing a lot of reading over these last two weeks. It is my way of keeping up to date with the rapid advances in DNA technology which are taking place throughout the world – reading about these exciting developments instills me with hope, that one day, some day, soon, we too in South Africa will be able to publish our DNA ‘journey of advancement’ for other developing countries to read, admire and follow. There is so much information out there and so many exciting advances happening in this arena, all whilst we patiently wait for our Parliamentarians to review and deliberate our own DNA legislation… I have to bite down on my lip  in an effort not to scream out that we should be careful not to wait too long to pass this much needed law, or else we may be risking getting left a little too far behind… And in a country which boasts one of the highest crime rates and lowest conviction rates in the world, this seems a rather in-congruent state of affairs!Picture 5

But, there is a glimmer of hope – I have heard this week via the DNA helix (as opposed to the grapevine!), that the Portfolio Committee for Police, who were tasked with reviewing the DNA Bill, have been in Pretoria this week on a site visit to the Forensic Lab and that they may be taking a tour overseas some time soon to review and visit other Forensic DNA Labs. The secretary for the PC mentioned that the PC may reconvene on the legislation by the end of February, and it is hoped that the reviewing and touring of the other Labs would be complete by that time, so that they are able to get on with the important task at hand. After all, we are not reinventing the wheel here – DNA Databases and their use as a criminal investigative tool has become the international gold standard for investigating crime, and in a country where crime is one of our biggest problems, it makes sense to cement the legislative framework around which we can make this technology work for us in the most effective manner. (more…)

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18 Nov, Parliament – Final Stages of Phase 1 of the Bill

Wednesday, November 18th, 2009

Today I find myself in Committee Room 3 in Parliament. The Portfolio Committee for Police (PCP) are moving ahead rapidly on Phase 1 of the Bill, which relates to Fingerprints and the integration of the various Fingerprint Databases in SA. It seems as if they have allocated 1 April 2010 as the date on which they would like to see this phase of the Bill commencing.

They want a set of regulations to be drafted in conjunction with this phase of this Bill, which  will regulate the way in which the integration of the various fingerprint databases will be managed. The final draft of Phase 1 of the Bill will be available within this week, and I shall include a copy of same on the website for all to view and comment on.

This means that the DNA section of the Bill, officially now known as ‘Phase 2 of the Bill’, should start being  reviewed by the PCP in late January 2010. I have heard, but it is yet to be confirmed, that the PCP may conduct an overseas trip to another country with an established DNA Database, possibly in early January 2010. I hope that this is the case, as it will certainly provide the PCP with a broad and informative overview of how successful an expanded and well regulated DNA Database is utilised as a tool for crime prevention, resolution and ultimately, deterrence. It will hopefully also illustrate that we are not trying to reinvent the wheel in SA with this Bill, and that we can learn from other administrations which have already undergone similair legislative changes and implementation processes.

The PCP ended proceedings with just about every member of the PCP, commending the Chairperson of the PCP, Ms Chikunga, with the exemplary way in which she has managed and lead these proceedings to date. I agree with their sentiments, as this PCP have kept to their schedule, enforced proper and full presentation of information and have not tolerated tardy nor shoddy representations by other Government departments who have appeared before this Committee in respect of this Bill. I will also say that the attendance quota of this Committee has been very high, certainly in comparison to the previous ad hoc Committee which reviewed this Bill. They have also maintained a keen interest in this Bill, shown that they have and are carefully considering each aspect of the Bill and that they all do recognise how valuable this Bill is in the fight against crime in SA.

This was the last PCP meeting of this Parliamentary Session. The next meeting will be in January, and of course, if you are watching this space, I will be here …

Vanessa

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Parliament: 11 Nov 2009

Wednesday, November 11th, 2009

I am sitting in Room V454 in the Old Assembly Building in Parliament, Cape Town. Today the room is full of high ranking officials and the Portfolio Committee for Police (PCP), as scheduled, started at 9am on the dot. There is a lot to get through today, and the focus remains on Phase 1 of the Bill which deals with the integration of the 3 fingerprint databases in South Africa. There have however been a great deal of references made to the DNA Section of the Bill, particularly the definition of intimate and non intimate samples, which is going to be dealt with in Phase 2 of the Bill. I am encouraged by this, because it ensures that the DNA Section of the Bill, that is Phase 2, remains on the agenda, albeit it will be a tough round in Phase 2, judging from the issues raised with the taking and definition of samples! The public submissions were also looked at briefly today, and having personally read through all of them, it surprises me as to how many submissions are based on a basic misunderstanding of how DNA profiling is used in a Criminal context, as well as a lack of understanding of how a National DNA Database is used for criminal intelligence purposes. Have a look at the Parliamentary Monitoring Group Website if you feel moved to read through some of the submissions made. These will in any event all be dealt with in detail in Phase 2 of the Bill.

Presentation by Willie Scholtz of the OCJSR, Parliament

Presentation by Willie Scholtz of the OCJSR, Parliament

The good news is that the OCJSR is here today, represented by Willie Scholtz. For those of you who are unfamiliar with this acronym, OCJSR stands for The Office for Criminal Justice System Reform. This is the vehicle through which the package of seven fundamental and far reaching transformative changes to the Criminal Justice Systems (CJS), as approved by Cabinet in 2008, are being effected. The briefing by the OCJSR today is in line with a request that an Interdepartmental Task Team deal with the implementation aspects relating to the Bill in an integrated and holistic manner.

The OCJSR were primarily responsible for pushing this Bill forward in the first place, and then it fell off the radar following the recent elections. It is encouraging that they have resumed their role in this Bill, as a huge amount of time and money has been invested by the OCJSR to date, in overseeing the implementation plan which goes hand in hand with this Bill. As such, their presentation today will reveal how they envisage the successful roll out of this Bill – i.e. through the co-ordinated efforts of a Task Team made up of SAPS, Home Affairs (DHA), Transport (DT), IJS, Correctional Services (DCS) and SITA and the Integrated Justice System (IJS).

IMG_0487

Presentation Paper by the OCJSR

The OCJSR are of the opinion that the major provisions of the Bill CAN be implemented on promulgation with the exception of some clauses that are dependent upon modifications and infrastructure upgrades to existing IT systems.

The OCJSR believes that there is nothing that should hold up PHASE 1 (ie Fingerprint section) of the Bill because:

1. there has been consultation inter-departmentally before the Bill was approved by Cabinet as to how this Bill would be implemented going forward;

2. there was extensive consultation during the pre-drafting and drafting stage of the Bill to ensure that the Bill was in fact implementable;

3. it can be categorically stated that all implementation aspects are on track and that there is a clear understanding of what is required by individual role players as well as by the CJS overall;

4. the PCP must give consideration to the Bill with the knowledge that the inevitable risk associated with the implementation of a project of this magnitude are manageable;

5. By approving the Bill, Parliament will provide the CJS with an excellent platform for an effective and efficient CJS.

The PCP seemed generally to accept the Implementation  Plan that was presented today, that is in respect of Phase 1 of the Bill. They however want continuous feedback in respect of the progress of the Bill, problems encountered and challenges overcome. A firm proposal was made that this feedback requirement is made official.

The OCJSR agrees that there needs to be closer communication between the Integrated Justice System (the IJS) and the OCJSR will facilitate the implementation process by the IJS and report back to the PCP with respect to this process.

The Chairperson closed the meeting indicating that she believes that they have a come a long way with regards to the implementation plan and she thanked the members of the Task Team for the presentation today.

Let’s hope that Phase 2 of the Bill is as acceptable…..

Vanessa

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Minutes of Parliamentary Meeting: 6 Nov 2009

Friday, November 6th, 2009

Criminal Law (Forensic Procedures) Amendment Bill (B2-2009): SAPS Responses & Deliberations

Date of Meeting:

6 Nov 2009

Chairperson:

Ms L Chikunga (ANC)

Summary:

The Committee was briefed by SAPS’s Head of Legislation on the written submissions received by the Committee on the Criminal Law (Forensic Procedures) Amendment Bill (the Bill). He outlined the South African Police Service’s (SAPS) response to some of the comments, but noted that he had not had time to consider them all. In response to issues raised by the Medical Rights Advocacy Network, he noted that SAPS disagreed that the use of “reasonable force” to take a body print from a suspect violated any rights, as this was not considered to be on the same footing as testimony. The State Law Advisor confirmed that this was merely re-stating the current law. In answer to questions from Members, it was explained that the Criminal Procedure Act contained definitions of samples. The comments from the Law Society of South Africa was concerned about police training in taking samples, but other issues raised were concerned with DNA sampling and body prints. The SAPS would be including sensitivity training in the taking of samples as part of its standard training. The Centre for Constitutional Rights (CCR) was concerned that ‘speculative search’ was used in relation to database searches, and SAPS said that although this was not the case, it could understand the confusion and would recommend alternative terms. The CCR also suggested that fingerpricks and buccal swabbing should be regarded as intimate samples, and should be conducted by a medical professional. SAPS felt that this was unnecessary and would result in medical professionals having to be on call, and would also delay the taking of samples which was done on arrest. A Member suggested that medical professionals should do the samples, and since they were in any event on call for rape cases, this did not add an extra burden. Although other members indicated their agreement, they agreed to deal with fingerprinting now. South African Gunowners’ Association (SAGA) also raised the issue of ‘speculative searches’, asked for a definition of the term ‘any court’ in the Bill, and suggested an amendment to the phrase “related to criminal…”. SAPS responded that the definition of ‘any court’ was unnecessary and the proposed amendment would be too limiting. The State Law Advisors noted that these terms were defined, but could be changed.

They asked whether there would be a need for additional training, what the costs might be, questioned in what circumstances body prints would be useful, and suggested that these should be directly linked to evidence. Members noted that they would prefer to have a written document before them to follow, and asked that both SAPS and Department of Justice produce written comments, and return in the following week to complete their comments on the submissions. SAPS was asked to concentrate on responding to the CCR submissions. It was also asked to provide a finalised implementation plan in the following week.

Minutes:

Criminal Law (Forensic Procedures) Amendment Bill (B2-2009): South African Police Service Responses and Deliberations
The Chairperson requested that the Committee agree that it needed to process the Criminal Law (Forensic Procedures) Amendment Bill (the Bill) up to the level where the content was correct and all that needed to be done was debate the implementation of the Bill.

She reminded the Committee that during the previous meeting, South African Police Services (SAPS) had presented a draft that needed further work, relating to the submissions made on the Bill. The Committee had decided to recall SAPS in the following week in order to brief the Committee on the final draft. The Committee was asked to focus on the topic of fingerprint identification and leave DNA-related issues for later meetings. SAPS had provided information that a task team did exist that was looking at the matters raised in the previous meeting, and were also looking at the review of the Criminal Justice System.

SAPS Responses to submissions received by the Committee
Dr Tertius Geldenhuys, Assistant Commissioner, Head of Legislation, Legal Services, SAPS, stated that he would be dealing with some of the written submissions received by the Committee. He asked the Committee to take cognisance of the fact that he had only received the document pack late last night and thus went through what he could before the meeting. He would therefore be limiting his comments to the submissions that he had managed to address, which were the print taking, and not DNA taking.

The Medical Rights Advocacy Network (MERAN) raised the issue of ethics related to the taking of fingerprints, as the Bill allowed for the use of ‘reasonable force’ in order to take a fingerprint or blood sample of a suspect. This clause violated the relationship between medical practitioners and their patients. From SAPS’s viewpoint, an individual had the right to refuse to testify if this would incriminate him or her, but he noted that bodily evidence could not be considered testimony and for this reason SAPS disagreed with MERAN.

Mr Johan de Lange, Director, Department of Justice and Constitutional Development (DOJ), added that the Committee would be looking at what was new in the Bill and that the above issue was a long-standing issue. He did not have any problems with it.

Mr Theo Hercules, State Law Advisor, Office of the State Law Advisor, stated that the Bill as drawn focused on retaining the existing legal principles, and was confirming a pre-existing position in law.

Ms D Schafer (DA) stated that the Bill was still referring to intimate and non-intimate samples, and asked why this was still in the Bill if it was to be dealing solely with fingerprints.

Dr Geldenhuys agreed that the reference was still in the Bill.

Mr De Lange stated that at present the Criminal Procedure Act (CPA) made provision for the taking of blood samples. Page 11 of the Bill, under subsection (2), contained a definition of ‘samples’ . This definition allowed for SAPS officers to take non-intimate DNA samples, via buccal (cheek) swabbing and blood samples through a fingerprick.

Dr Geldenhuys stated that the Law Society of South Africa  was concerned about police training in taking samples, but as this was primarily aimed at DNA sampling, it was irrelevant for the time being.

The Centre for Constitutional Rights (CCR) was concerned about the term ‘speculative search’ being used in relation to database searches. SAPS understood that the term was creating confusion due to the fact that it was assumed that these searches were based on taking a chance. However, Dr Geldenhuys confirmed that this was not the case. If the term was not considered useable, then he suggested that it could be changed to ‘matching search’ or ‘comparative search’.

Mr M George (COPE) asked Dr Geldenhuys what the SAPS’s stance on the Law Society’s submission was.

Dr Geldenhuys replied that this submission related mainly to DNA sampling, but with regards to training of SAPS officials in relation to fingerprinting, there was no problem, as every SAPS member was already trained to do this.

The Chairperson stated that it seemed that the Law Society’s submission did not refer to fingerprints, but rather body prints.

Dr Geldenhuys took note of this and added that similar principles applied. He acknowledged that the Law Society took issue with the degree of sensitivity shown when taking prints, and stated that this part of SAPS’s training would be addressed.

Dr Geldenhuys noted that the CCR felt that fingerpricks and buccal swabbing for DNA samples should be regarded as intimate samples, and as such they should be conducted by a medical professional. However the consequences of this were that there would need to be 24-hour medical professionals on call. The samples were taken upon arrest and must be able to be done, even in rural areas. An evaluation of the finger-pricking device was being done, and he explained that the machine was a small box that pricked the finger and stored a drop of blood for analysis.

Ms P Mocumi (ANC) stated that the Committee was supposed to focusing on fingerprints, not DNA analysis.

Ms D Kohler-Barnard (DA) stated that only a medical professional could make sure that the blood sampling was done properly, and without risk of contamination and HIV risks. She believed that allowing SAPS officers to do this would be irresponsible. Doctors needed to be on 24 hour call anyway for rape victims, so she did not see that the availability argument was applicable.

Ms A Van Wyk (ANC) agreed, but stressed that the Committee should deal with fingerprinting now.

Ms G Schneemann (ANC) asked whether the Committee could get SAPS’s views on the submissions in writing, so that SAPS could give a finalised position and so that Members could refer to a document.

The Chairperson agreed.

Dr Geldenhuys replied that he would do so, but that it would require some time.

Dr Geldenhuys continued with his responses. The South African Gunowners’ Association (SAGA) also raised the issue of ‘speculative searches’ and asked for a definition of the term ‘any court’ in the bill. SAGA suggested that the phrase ‘related to criminal   ‘ should rather be amended to read ‘directly related to criminal   ‘ in the Bill. SAPS felt that the definition of ‘any court’ was unnecessary and the proposed changes, by adding the word ‘directly’ would be too limiting.

Dr Geldenhuys noted that this was as far as he had managed to go with the submissions. He suggested that if the Committee could allow him an hour or so for further preparation, he would not be able to cover the rest of the submissions now. He left the decision on this to the Committee.

Mr Hercules added that he could assist with issues surrounding the term ‘speculative search’ as the term was defined in the Bill, and from an interpretation point of view the use and definition of the term was very clear. The same applied to the term ‘related to criminal…’ However, if the Committee wished changes to be made, this could be done.

Mr Hercules added that the debate over intimate versus non-intimate sampling was up to the Committee.

Mr De Lange stated that he did not wish to waste the Committee’s time and would prefer to provide a formal written response that the Committee could then refer to.

Mr V Ndlovu (IFP) replied that that was exactly what Members needed.

Mr George agreed and added that in future if the presenters had not have time to go through the necessary documents, they should notify the Committee so that the Committee could take this into account and try to provide them with sufficient time to do so.

The Chairperson stated that the statements were in order and asked the Committee Researcher to take the Committee through a summary document she had prepared.

Ms Nadia Dollie, Researcher, Parliament of the Republic of South Africa, provided the Committee with a summary document relating to the issues raised in the written submissions, and the clause-specific references.

The Chairperson asked why non-intimate samples were taken.

Dr Geldenhuys replied that initially the differentiation between non-intimate and intimate samples was done in order to allow for SAPS officers to take the former and medical professionals to take the latter. Both were taken for DNA analysis.

The Chairperson indicated that in that case, the Committee did not need to worry about the issue at present.

Mr Hercules added that that before the splitting of the original Amendment Bill, the definition of intimate and non-intimate samples related to DNA samples. Due to the fact that all references relating to DNA samples and analysis had been removed from the current draft, these terms were retained on the basis that they were merely keeping to the status quo. They fitted into the broader scheme of the entire Bill.

Mr George asked how much the training of police officers would cost and what the duration would be.

Dr Geldenhuys replied that currently police officers were trained to take fingerprints as part of their existing training scheme and the only thing that needed to be addressed was sensitivity in terms of dealing with suspects. This refresher training would not entail any cost and would be addressed as part of continuing refresher training.

Ms Schafer raised concerns over the expansion of the definition of ‘body prints’ and added that this could lead to police abuse.

Dr Geldenhuys understood these concerns, but added that there were cases in which he had personally been involved, where the use of lip prints or knee prints were used to catch the perpetrator, due to unique scarring that could be seen on the print. Unwarranted printing of body parts was not condoned, but if the definition were to be limited, then access to evidence would be diminished.

Ms Schafer asked whether the Committee could include a clause that specified that the printing done needed to be related to the evidence print.

The Chairperson asked Dr Geldenhuys to pay close attention to the CCR submission and agreed that the Committee should receive formal documents from the SAPS and the DOJ by the following Wednesday.

Dr Geldenhuys asked whether the Committee would like to hear the SAPS comments on the Bill in the mean time.

The Chairperson welcomed this.

Ms Kohler-Barnard interjected that this would indeed be welcome and was needed, but it would be very difficult to follow verbal comments on the Bill, without a written document to refer to. She asked that a document with these comments be supplied and that the Committee go over this at the next meeting.

The Chairperson agreed that this was in order and stated that on Wednesday next week the SAPS would present its position on the Bill, as well as a finalised implementation plan.

The meeting was adjourned.

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Back in Parliament: a Phased approach to the DNA Bill

Friday, October 30th, 2009

Wednesday, 28 October 2009, and I was back in Parliament. What was originally supposed to be a day of public hearings on the Bill, became a morning of hearing how the Portfolio Committee for Police (PCP) have unilaterally decided to “split” the Criminal Law (Forensic Procedures) Amendment Bill into two “phases”.

This decision was taken last week on Thursday, 22 October 2009 in an impromptu, unscheduled meeting held by the PCP in Parliament. No-one was advised of that meeting, and not even the Parliamentary Monitoring Group were present, so there is no official record of what was said, why this decision was taken, nor who was present at that meeting. Be that as it may, the Chairperson was adamant that it was well within the PCP’s ‘constitutional right’ to have held this meeting and to have made this decision to split the bill, and as such, she refused to enter into any negotiations with regard to whether her decision was or was not justified.

This decision was however challenged by Mr Deon Rudman, Deputy Director General: Legislation, Department of Justice & Constitutional Development as he felt that the PCP did have a duty to confer with Justice with regards to any decision taken by the PCP with regards to the Bill. He stated that they had not been informed of the meeting held on 22 October 2009, having only heard about it on the 27 October 2009. He felt that the Minister of Justice needed to be advised of this decision and that the PCP should await his instructions as to whether the Minister is in agreement with their decision.

The Chairperson disagreed with Mr Rudman, and said that she would only hear input with respect to the Bill as it stands i.e. in its split form and not in respect of their decision to split the Bill. Any debate as to the rationale behind this decision or the correctness thereof will simply delay the review process, which they want to avoid.

Therefore: we must now consider the implications of this decision:.

In the first place the PCP only have 3 more weeks this year to finalize their review of the Bill. They feel that the DNA section of the Bill requires far more input and insight than the Fingerprint section, due to the constitutional questions they believe the DNA section may raise. As such, in light of the fact that the Fingerprint section of the Bill, which simply calls for an amalgamation of the 3 fingerprint databases in SA (namely those held by the SAPS, Transport and Home Affairs), they believe it would be prudent, to review this section first , finalize and pass it, and allow that process to continue, whilst they then looked at the complex issues inherent in the DNA section of the Bill. They have undertaken to do this as a matter of urgency as they recognize the importance of the DNA section of the Bill in the fight against crime in SA. The Committee stated that they believed the following issues would need to be looked at in detail in the DNA Bill:

1. the challenges that it may lead to a violation of an individuals rights to privacy, presumed innocence, equality, bodily integrity and the impact on the rights of children;
2. the retention of profiles of people not convicted and the length of time samples are  kept by SAPS;
3. the implementation plan and cost implications of same.

So: the phased approach will be as follows:

Phase 1: will deal with  body prints and fingerprints
Phase 2: will deal with DNA.

In Phase 2, the PCP will conduct a comparative study with other countries with the same legislation and bill of rights as SA and conduct an international tour to look at certain countries and the way in which they implemented a DNA database and DNA legislation. They have assured everyone that the DNA Bill will be processed during 2010.

The state law advisors then when on to brief the Committee as to how they intend to  split the Bill.  They dealt with the current Bill, page by page, and showed the Committee where all parts of the Bill relating to DNA have been taken to for the purposes of phase 1. These stricken parts are now going to be redrafted into a new DNA Amendment Bill, which will deal solely with DNA and the establishment of a National DNA Database in SA.

In the meantime, the provisions of the Criminal Procedure Act will continue to apply to the current DNA Database.

Following the closure of the meeting, I was approached by one of the members of parliament, Ms Annelizé van Wyk. Ms van Wyk was part of the previous ad hoc portfolio committee tasked with reviewing the Bill at the beginning of the year, and by now, is no doubt familiar with my face and presence at every meeting relating to this Bill! Ms van Wyk stated that she “saw my face” when the split was announced and was at pains to assure me that despite that fact that it has been split, the Committee will continue to treat the DNA section as a priority in the fight against crime. I am very glad that Ms van Wyk, made this statement, as I pointed out that we are currently operating in a legal vacuum with an inadequate legislative framework to regulate the existing DNA database and retention of DNA profiles and samples. Her assurance that the DNA Bill will NOT  be left by the wayside and will be dealt with next year, is promising, and we have to hold her to these words, as there has been a huge groundswell of support for the DNA section of the Bill – the public will not take lightly to the PCP simply allowing the DNA Bill  to be put to one side and neglected. Phase 2 needs to start in the New Year – and the public need to be informed as to how the PCP propose to conduct their committee hearings, in advance.

My personal opinion: initially I was disappointed, but actually, realistically, if they can deal with and finalize the Fingerprint section in this session, then let them do it, as the Fingerprint section of the Bill is also hugely relevant in the fight against crime. I do believe that this PCP is focused on finalizing the DNA Bill, and as they correctly pointed out, there are issues which need to be properly investigated. As such, by creating a separate DNA Bill, we can be assured, that it will receive 100% attention and will be a well thought out Bill which is not likely to be challenged. If we consider that in the UK, they took 10 years to make 4 amendments to get to the point we hope to get to by next year, then we are doing OK! But let’s keep the pressure on, and make sure they stick to their word – watch this space, I will be keeping very close tabs on the progress of this Bill….

Vanessa

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