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!

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.

I will of course be publishing any known dates for the first Parliamentray review for 2010, as soon as they come to my attention and will keep you up to date with regards to where the PC may be touring…

In the meantime, I have copied below a very interesting article written by Chris Asplen, a well known DNA ‘guru’ from the USA who, amongst other, specialises in forensic technology working with foreign governments, law enforcement agencies, academic institutions and private corporations on the use of forensic technology and who consults on the development of forensic technology legislation – the short article looks at the Benefits of the Forensic DNA Database as a Crime Fighting Tool and why it is so critical to have laws to administer a DNA Database – it is a summary of the salient points why it is so important to have a DNA Database and it diffuses a lot of the myths and confusion around the human rights issues commonly, yet mistakenly, associated with DNA Databases.

“While Forensic DNA technology is widely recognized as the most powerful and reliable crime fighting tool in the world, its value comes not only in the science of biological DNA.  Rather, the investigative value, the ability to identify the guilty and to protect the innocent from wrongful prosecution, is owed equally to the ability to database and search Forensic DNA profiles.  Absent a database component to DNA use, Forensic DNA is simply a better piece of evidence that may help prosecutors prove a case at trial but does little to help police identify perpetrators in the first place.  Without the Forensic DNA database, police must use traditional investigative techniques, develop leads, follow-up alibis, process other forensic evidence, take statements before a suspect is developed.  Eventually, when a suspect is identified, police can take DNA, compare it to the crime scene and confirm the work that police have already done in developing the suspect.  It has done little to help police save time money and lives by identifying suspects faster with DNA.  That improved investigation only comes when Forensic DNA science is combined with computer science advances.

Recognizing the crime fighting value of Forensic DNA databases over 35 countries have passed laws creating official databases.  Many more including India, Brazil, Ireland, Argentina,Malaysia and South Korea are in the final stages of passing such laws.

In the National DNA Database in the United Kingdom, during 2008/09,  nearly six in ten crime scene profiles loaded to the NDNAD were matched to a subject profile. This included 252 homicides (includes murder and manslaughter); 580 rapes; 175 other sex offences; 1,819 other violent crimes and more than 8,100 domestic burglary offences. On average it continues to provide police with more than 3,300 suspect-to-crime-scene matches each month, helping to identify offenders more quickly, making earlier arrests and securing more convictions, and building public confidence that offenders are more likely to be brought to justice.

In the United States, The National DNA Index (NDIS) contains over 7,434,897 offender profiles and 285,425 forensic profiles as of September 2009. CODIS’s primary assessment metric, the “Investigation Aided,” tracks the number of criminal investigations where CODIS has added value to the investigative process. As of September 2009, CODIS has produced over 98,700 hits assisting in more than 97,000 investigations. Every state in the United States has passed legislation establishing a state database which is connected nationally by the FBI’s National DNA Indexing System (NDIS). All states provide for the taking of DNA from most convicted offenders and 25 allow for the taking of a DNA sample upon arrest of some, usually violent, crime.

Europe
Recognizing the critical role of Forensic DNA databases in identifying and the convicting the guilty while protecting the innocent both within individual countries and across borders, the European Union passed legislation in December 2006 requiring ALL EU member countries to pass Forensic DNA databasing legislation.  Only Ireland has yet to pass a law establishing a Forensic DNA database. The chart below shows the status of Forensic DNA databases in Europe (not just EU Countries) as of July 2009.

Human Rights and Constitutional Issues

The Marper Case case: It is important to have a clear understanding of what the European Court of Human Rights said and didn’t say in the Marper case.  Often times, Marper is misquoted to suggest that taking DNA samples from individuals arrested and not convicted is a violation of human rights – that is not at all what Marper says. Marper is a very limited decision.  It is limited to the previous practice by the United Kingdom to retain Forensic DNA profiles even if someone was exonerated in court or otherwise not prosecuted.  The retention of samples provided by someone subsequently deemed not guilty or prosecutable is the only issue addressed by the court. Furthermore, the United Kingdom is the only country in the world which systemically retained profiles of people who were not ultimately convicted. Simply put, where DNA samples are destroyed and profiles expunged from the database when a suspect’s case is dropped or that person is found not guilty, there is no violation of human rights according to the European Court of Human Rights.

The Overall Safety of Databases

The fact that so many countries have established Forensic DNA databases speaks well for the fact that they are both “constitutional” and do not violate human rights.  It is easily imagined that in most of those countries in which such databases operate, there have been numerous legal challenges made within the context of those countries’ constitutional frameworks.  Each time and in every country, DNA databases have been found to be legal and appropriate. That also speaks well for the safeguards that are created protecting the databases from misuse.  Throughout the world, there are no examples in which police have misused a forensic DNA database.

Database abuse is protected against by many factors:

1.       The physical design of the databases themselves.

Most databases are designed so that a minimal number of authorized people have access to the data contained in the database.  In the United States, the data is anonomized and only a few people in any state have the authority to link a DNA profile to a person’s name. All countries that have databases have strict regulations which limit access to the database

2.       The Contents of the database

It is important to understand exactly what is and is not in a Forensic DNA database.  Specifically, the profiles contained in the database are only digitalized representations (represented by numbers) of a very small set of locations on an individual’s genetic map.  More importantly, the locations that were selected for use in the Forensic DNA database were selected, in part, because they do not carry any information about a person’s physical characteristics such as race or any information about a person’s health, such as predisposition to disease.  The contents of the database reveal no characteristics, only numbers for comparison purposes.

3.       Criminal penalties for misuse

Most countries provide for criminal penalties to be imposed should someone violate the protocols and procedures developed for proper database use. There is no record of anyone ever having been prosecuted for violating Forensic DNA databasing laws.

4.       Sample Retention / Sample Destruction

A similar security provision, such as the application of criminal penalties for misuse also applies to the issue of biological sample misuse. While there are many reasons to retain samples, countries handle the retention very differently and retain samples for various periods of time. Some countries such as Germany and Belgium destroy the biological sample as soon as a verifiable profile is developed.  This is perhaps the best way to eliminate any concern about possible misuse of such samples.  Germany and Belgium find no difficulty with this process.

Property Crime and the utility of outsourcing:

An analysis of the use of databases throughout the world and recent research in the United States has confirmed what most law enforcement and criminal justice officials have known for a long time. Forensic DNA databases are most effective at solving property crime and should be widely applied as such. This is for several reasons:
·         Property crimes such as car theft and burglary are highly recidivistic crimes. People who steal often steal a lot
·         Unlike rape and homicide, car theft and burglary don’t result in long sentences when convicted.  As such, the perpetrators are out on the street quickly committing their crimes again.
·         Because these crimes are highly recidivistic, there is a great value to the Forensic DNA databases ability to link individual crime scenes together thus consolidating cases and evidence.

A recent US Department of Justice study analyzed the use of Forensic DNA databases in five major cities throughout the United States. It found that Forensic  DNA evidenced combined with database applications was more effective at solving property crime than fingerprints.  More importantly, the study was a cost benefit analysis, finding not only that Forensic DNA was more effective at solving property crimes but also that Forensic DNA was more economically efficient.

The study’s main findings are that:

•           Property crime cases where Forensic DNA evidence is processed have more than twice as many suspects identified, 3 times as many suspects arrested, and more than twice as many cases accepted for prosecution compared with traditional investigation;
•     Forensic DNA is at least five times as likely to result in a suspect identification compared with fingerprints;
•     Suspects identified by Forensic DNA had at least twice as many prior felony arrests and convictions as those identified by traditional investigation;
•     Blood evidence results in better case outcomes than other biological evidence, particularly evidence from items that were handled or touched;
•     Biological material collected by forensic technicians is no more likely to result in a suspect being identified than biological material collected by patrol officers.

Private Sector Development:

Another 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.” Chris Asplen, Dec 2009

I am sure you agree that having read this article, a legislative framework for our DNA Database is a priority. Mr Asplen has requested that he make a submission to our Portfolio Committee, and I sincerely hope that they take him up on his offer, as he has vast experience on this subject, and we can but only learn from him…..

with thanks for taking the time to read to this point!

Vanessa.