A New DNA Bill
The Criminal Law (Forensic Procedures) Amendment Bill B2-2009 (hereafter referred to as the ‘DNA Bill’) was drafted and adopted by Cabinet in December 2008. The DNA Bill, currently still under review by Parliament (who are currently on their study tour), seeks to address gaps in our current legislation dealing with the collection, storage and use of DNA evidence and to provide for the expansion and administration of a national DNA database, which will be called the National DNA Database of South Africa (NDDSA).
The DNA Bill, in essence, addresses the following issues:
- It deals with all aspects of biometric evidence, especially the use of DNA profiles for criminal intelligence purposes.
- It seeks to expand and upgrade the existing DNA database within the SAPS (for example, by allowing police to take a DNA sample from all accused and to keep the DNA profile on the database, regardless of a subsequent conviction).
- It establishes and provides for the management and administration of a NDDSA to include all suspect and crime scene profiles.
The DNA Bill aims to achieve 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 DNA Bill adequately addresses these issues and has been carefully drafted to ensure that the NDDSA is used to its full potential in combating and preventing crime in South Africa, while ensuring that it has minimal impact on the civil rights of citizens. 
In addition, the DNA Bill 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.
It is not known exactly when the legislation will be passed and now the Portfolio Committee for Police want to embark on an overseas tour of the UK and Canada to see how DNA is being implemented in those countries! In the absence of such a legislative framework, the very high numbers of perpetrators who are not detected, combined with the high number of cases being withdrawn before reaching court and in court, resulting in very low conviction rates, will continue to undermine all efforts in the fight against crime.
The following table, prepared by the Department of Justice and Constitutional Development, responsible for originaly drafting the DNA Bill, illustrates the key legislative changes required to efficiently operate and manage the NDDSA:
Key recommendations |
Projected outcome |
Achieved through |
| Establish a DNA database against which to run crime scene evidence. | Increase in identifications made possible from DNA collected at crime scenes. | Legislative amendments or new legislative proposals: 1) Establishing DNA database — management etc. 2) Providing for collection of DNA profiles from all accused and convicted persons AND providing for the retention of such profiles, even if accused found not guilty or the prosecution discontinued. BUT, making it clear that profiles so retained may only be used for the purpose of the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution. |
| Expanded DNA databases can only be effective in practice if: a) More qualified staff is appointed to attend to crime scenes and to work as forensic analysts. b) Training of staff is provided by a tertiary institution in South Africa. c) More equipment is provided, as required, to enable the finalisation of more print and sample analyses per month; d) A DNA and fingerprint collection education drive (online training or mobile training bus) national awareness campaign with all role players, as to the importance of preserving a crime scene, collecting DNA samples and prints etc. Role players will include: crime scene experts, detectives, police generally, prosecutors, magistrates, guards from private security companies etc. | More samples and prints will be collected to run timeously against the expanded databases, to enable more hits to be made. | 1) Allocating resources for the appointment of staff, buying equipment and investing in training. 2) Developing a new management system: focus will no longer only be on DNA case-by-case analysis on request of a prosecutor, the current working method, adopted in order to prioritise cases for court. Although this line of work will continue, a second work stream will have to be developed in which the focus is on building up a national DNA database and allowing ongoing inter-case searches. 2) Training trainers to conduct education drives throughout the country, with all role players, allocating resources towards this initiative and developing the necessary training materials. |
For the effective management of the NDDSA, the new DNA Bill proposes the creation of five different sections, or ‘indexes’, of the current NDDSA to be established, namely:
- The Crime Scene Index, containing DNA profiles collected from crime scenes.
- The Reference Index, containing DNA profiles taken from persons suspected, reported, charged or cautioned for any recordable offence.
- The Convicted Offender Index, containing DNA profiles of convicted offenders.
- The Elimination Index, containing DNA profiles of people working in the collection and analysis of forensic samples.
- The Volunteer Index, containing DNA profiles of victims, as well as persons requesting their profiles to be kept on the database. Parents may volunteer to record their children’s DNA on the Volunteer Index in case they ever go missing.
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 NDDSA, which can then be searched as against the other profiles already stored on the NDDSA. 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 NDDSA, 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 Bill 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.
The length of retention of DNA profiles has been raised as an issue in the DNA Bill in South Africa, particularly in respect of profiles retained where no conviction has taken place. It is submitted that the Marper ruling, and the way in which the British Home Office applies it, will have a bearing on what the Parliamentary Portfolio Committee will recommend to be enacted in the DNA Bill. Research conducted in Britain has found that the risk of an arrestee being re-arrested will fall as the number of years from the arrest increases. This is called a declining ‘hazard-rate’. The relevance of this risk rate, they argue, is that if the risk of re-arrest remains higher for someone who has been arrested but not convicted compared to that for the general population, then there is justification for retaining that profile on the DNA Database.
The following retention framework has been proposed by the UK Home Office, in respect of DNA profiles: [note: all samples obtained from suspects on arrest will be destroyed, regardless of conviction or acquittal - samples will only be retained for as long as needed to extract a suitable profile for entry onto the DNA database
TYPE OF DNA PROFILE |
RETENTION PERIOD — UK |
| Adults convicted of a recordable offence. | Indefinite. |
| Adults arrested for but not convicted of a recordable offence which is not a serious violent or sexual or terrorism related offence. | Automatically deleted after 6 years (but subject to an automatic retention of a further 6 years if re-arrested during this 6 year period). |
| Adults arrested for not convicted of a serious violent or sexual offence or terrorism related offence. | Automatically deleted after 12 years. |
| Volunteer samples (e.g. for elimination purposes). | Not stored on the database. |
| Exceptional grounds for early deletion of profiles (per regulations setting out criteria for these grounds). | On application to the Chief Constable. |
| Children under 10 years/ | Will not be retained on the Database. |
| Persons under 18 (but over 10) years who are convicted of a serious violent, sexual offence or terrorism related crime. | Indefinite. |
| Persons under 18 (but over 10) years who are convicted on only one occasion of a lesser offence. | Removed on turning 18 years. |
| Persons under 18 years who are arrested but not convicted for a serious violent or sexual offence or terrorism. related offence | 12 years. |
| Under 18 years who are arrested but not convicted on only one occasion of a lesser offence | 6 years or deleted on turning 18 years |
The current rate of recidivism in South Africa is one of the highest in the world. Research has shown that there is a high possibility of convicted offenders repeating crimes either after release, or during parole. By retaining the DNA profile, any subsequent crime scene evidence may be linked immediately to that person, whose full details will be on the DNA database.
A DNA Database is only really successful if its reference index contains 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 0.02 percent because our crime scene-derived DNA profiles far outnumber reference DNA profiles.
The new DNA Bill will permit the police to build up the NDDSA 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 NDDSA:
1. 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’.
2. If the two profiles are not consistent, the finding is interpreted as a ‘non-match’ or ‘exclusion’.
3. If there is insufficient data to support a conclusion, the finding is regarded as ‘inconclusive’
