Government Gazette, Vol. 583, No. 52
Cape Town, 27 January 2014 No. 37268
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:—
The purpose of the new DNA Act:
- It establishes and regulates the administration and maintenance of the National Forensic DNA Database of South Africa (the “NFDD”) by amending the South African Police Service Act, 1995.
- It provides for the use of forensic DNA profiles in the investigation of crime and the use of such profiles in proving the innocence or guilt of persons before or during a prosecution or the exoneration of convicted persons. In addition, it will assist in the identification of missing persons and unidentified human remains.
- It provides for the taking of specified bodily samples from certain categories of persons for the purposes of forensic DNA analysis. The offences for which DNA samples must be taken are listed in Schedule 8, which has been added to the Criminal Procedure Act, 1977.
- It provides for the conditions under which the DNA samples, or forensic DNA profiles derived from the samples, may be retained or the periods within which they must be destroyed.
- It provides in particular for the protection of the rights of women and children in the taking of DNA samples and in the retention and removal of the forensic DNA profiles of children from the NFDD.
- It provides for oversight over the NFDD and the handling of complaints relating to the taking, retention and use of DNA samples and forensic DNA profiles.
- It provides for transitional provisions in respect of the current repository of DNA profiles held by the Forensic Science Laboratory (FSL).
- It stipulates Regulations that the Minister of Police must make in order to achieve the provisions of this Act.
So what does this all mean?
- The existing DNA Database in South Africa which has through default, evolved under the governance of the Criminal Procedure Act of 1977, is a wholly inadequate tool for regulating the use and retention of DNA profiles on a National DNA Database. The new DNA Act ensures that the future of the current DNA Database is expanded and managed in a regulated and appropriate manner.
- The DNA Act makes it mandatory for specially trained police officers to take DNA samples from suspects at the time of arrest for Schedule 8 offences.
- It mandates that all convicted offenders DNA samples are taken retrospectively and before their release from prison.
- It calls for specially trained Police Officers to be allowed to take non intimate DNA samples from arrestees and convicted offenders. The collection of a non-intimate DNA samples by a specially trained police officer from an arrestee or convicted offender ensures that a sample is quickly and easily uplifted. The “invasiveness” of the methods of obtaining DNA samples (rubbing a swab around the person’s mouth, or obtaining a drop or two of blood from a pin-prick to a finger), are no different to having a breathalyser taken on suspicion of drunken driving.
- The DNA Act ensures the creation of a DNA database in South Africa that will function effectively not only as a tool for gathering inculpatory evidence, but also for gathering exculpatory evidence, to appropriately eliminate suspects and so safeguard against wrongful convictions or other miscarriages of justice.
- The way in which the DNA profiles are stored on the DNA Database, namely by using markers from the non coded regions of a person’s DNA ensures that no genetic disposition or other distinguishing feature may be read from that profile other than gender. The retention of the profile, in that form, is the same as a fingerprint, and therefore its retention does not impact on the privacy of the individual in any way whatsoever.
- The creation of different Reference Indices (Arrestee, Elimination, Investigative, Unidentified Human Remains and Missing Persons Indices), Crime Scene Index and Convicted Offender Index ensures that DNA profiles are appropriately stored and managed.
- The DNA Act adequately retains an appropriate balance between the rights of individuals and the respect for privacy. The Act has been carefully drafted to ensure that the DNA Database is maximized to its full potential in combating and preventing crime in South Africa, whilst still ensuring that it has minimal impact on the civil rights of its citizens.
- The Act importantly calls for an Oversight Board to be formed which will monitor the implementation of this legislation. The Oversight Board will monitor the collection and storage of samples, the performance of the Forensic Science Laboratory and the National Forensic DNA Database. The Board will ensure compliance with ethical and privacy issues and ensure minimum quality standards are set and adhered to. Over time the Oversight Board will establish the effectiveness of the legislation in the fight against crime and review the Act in order that any necessary changes are made to maximise the efficiency of the use of the Database as a criminal intelligence tool.
- The DNA Act shows that the Government has explicitly tackled the scourge of crime in South Africa by demonstrating that if there is any perceived intrusion on an individual through the retention of their DNA profile, it is outweighed by a demonstrated and long awaited interest in protecting its citizens against serious and violent and crimes.
- In order to ensure the successful implementation of this legislation, First-on-crime scene police investigators, as well as key personnel involved in crime scenes, including the private security and emergency services sector, must be trained in how to identify, collect and preserve DNA evidence at crime scenes, so that critical evidence can be collected and fewer cases will be at risk of being jeopardised due to the mishandling of evidence. In addition, officers of the courts must be educated in how DNA evidence technology works to corroborate a case against a suspect or exonerate a suspect quickly, thereby decreasing delays in court.
- The public interest which is served by the new Act, is important, especially in cases of violent crime where DNA matching has been proven to be invaluable in matching a suspect to a crime scene.
The DNA Act adequately achieves these objectives, while providing for strict safeguards and penalties to ensure that forensic materials are collected, stored and used only for purposes related to the detection of crime, the investigation of an offence or prosecution. The Act ensures that the creation of a DNA database will function effectively, not only as a tool for gathering incriminating evidence, but also for gathering evidence, to eliminate suspects and so safeguard against wrongful convictions or other miscarriages of justice.
Why is the NFDD divided up into so many indices?
The Crime Scene Index, the Reference Index and the Convicted Offender Index are the most crucial for criminal intelligence, as they play an important role in the resolution of crime. The Crime Scene Index will ensure that a crime scene sample is taken from the scene of a crime (hair, blood or semen, for example), where the perpetrator is unknown. Given the recidivistic nature of most crimes in South Africa, the likelihood exists that the perpetrator of the crime being investigated may have already been convicted of a similar crime and may have his or her DNA profile on the NFDD, which can then be searched as against the other profiles already stored on the NFDD. Moreover, this type of speculative searching permits the cross-comparison of DNA profiles, developed from biological evidence found at crime scenes, which are known as crime scene-to-crime scene matches. Even if a perpetrator is not identified through the NFDD, crimes may be linked to each other in this way, thereby aiding an investigation, and potentially leading to the identification of a suspect.
Of note is the inclusion of the Convicted Offender Index retroactively. The DNA Act makes specific provision for the retrospective taking of convicted offender samples. The rationale behind obtaining DNA profiles from all convicted criminals is that research has shown that:
- It acts as a deterrent and addresses the question of accountability, both of which pose huge issues in South Africa, in respect of criminals repeatedly committing crimes.
- It can be used to link an offender with previous crime scenes, where DNA profiles have been obtained.
A DNA Database is only really successful if its reference indices contain enough DNA profiles of known individuals to run a speculative search against DNA profiles derived from crime scene samples, to identify possible suspects. Currently, South Africa has a hit rate of less than ten percent because our crime scene-derived DNA profiles far outnumber reference DNA profiles.
The DNA Act will permit the police to build up the NFDD by entering known or suspect DNA profiles into the Reference and Convicted Indexes and unidentified DNA profiles, or crime scene profiles, into the Crime Scene Index. To find a match, forensic analysts compare the DNA profile obtained from crime scene evidence to the profile from a known individual (suspect or victim). It goes without saying that the more ‘known DNA profiles’ that exist on the Reference and Convicted Offender Indexes, the greater the chance of there being a match when an unknown or crime scene profile is entered and run against the Reference or Convicted Offender Databases.
Typically, there are three possible laboratory outcomes when a DNA profile is entered onto the NFDD:
- If the DNA profile from a crime scene and a known DNA profile are identical, forensic analysts interpret this finding as a ‘match’, or ‘hit’.
- If the two profiles are not consistent, the finding is interpreted as a ‘non-match’ or ‘exclusion’.
- If there is insufficient data to support a conclusion, the finding is regarded as ‘inconclusive’