Sitting alone in the Public Gallery above the National Assembly in the early evening of 22 August 2013, I watched in disbelief as the long awaited DNA Bill, officially know as the Criminal Law (Forensic Procedures ) Amendment) Bill B9-2013, was almost not voted into Parliament due to a technical glitch on the electronic voting system. Having fought so long to see the passing of this Bill, it felt surreal that after listening to a range of high level South Africa Politicians laud the DNA Bill as groundbreaking and an excellent crime fighting tool, throughout the course of that same afternoon, it looked as if one of the most technologically advanced pieces of legislation was going to be stalled yet again, but this time due to the failure of technology itself. How ironic that the final voting on the Bill had to be done by a head count which thankfully realised a quorum to vote in the Bill. It seemed fitting drama to the 9 year struggle we have fought to see this critical DNA Bill being passed into law.
Looking down on the National Assembly from the Public Gallery before the DNA Bill was officially voted in, 22 Aug. 2013
The DNA Bill represents a welcome stand by the South African Government to regulate this important area of the law, which has to date been operated in a legal vacuum. The DNA Bill officially establishes a National Forensic DNA Database (NFDD) for the purposes of crime detection and investigation, the exoneration of convicted persons and for the identification of missing persons and unidentified human remains. The growth of South Africa’s NFDD is directly linked to the implementation of this law which will allow for the inclusion of profiles onto the NFDD, as well as allowing for comparative searching between the different types of profiles. This is important because the greater the number of profiles on the database, the greater the chance of finding a match between the crime scene profile and a known profile on the database. In other words, if we increase the number of profiles on our database, we will increase the chance of finding a match and linking it to a suspect or at the very least deriving criminal intelligence therefrom. The DNA Bill with its compulsory taking of DNA samples from arrestees and convicted offenders*, ensures that the database is populated for this purpose. But how will this translate into crime resolution and how will it help secure convictions in South Africa? In essence, entering DNA profiles obtained from samples from all those suspected and convicted of a Schedule 8 Offence, and comparing those to profiles obtained from biological evidence left at crime scenes, will achieve the following:
Earlier arrest of offenders: the mandatory collecting of DNA samples from arrestees means identifying criminals at an earlier stage in the criminal justice process, and will allow for more efficient prosecution practices.
Quick identification of linked/serial crimes: By helping to convict or rule out a suspect at an early stage, a DNA database saves valuable police and other crime detection resources, leaving them free for other investigations or to be deployed towards more crime prevention.
Valuable criminal intelligence: linking crimes, even where there is no known suspect, and identifying serial offenders earlier and patterns of criminal behavior.
Earlier exoneration of innocent suspects: the exclusion of a suspect from an investigation frees the innocent as soon as possible and will not permit someone falsely accused to remain in jail when they should not be there.
Easier identification of bodies or missing persons: especially where the degradation of a body prevents identification through visual recognition or fingerprints.
Crime reduction and deterrence: persons identified by DNA are convicted, imprisoned and removed from the community preventing them from committing further crimes and deterring them from reoffending after release due to their profile remaining on the NFDD which can positively link them to crimes they may intend on committing.
*The rationale behind obtaining DNA profiles from all convicted criminals is because research has shown that:
1. it acts as a deterrent and addresses the issues of accountability, both of which pose a huge issue in South Africa in respect of repeat crimes being committed by the same person;
2. it could be used to link the offender with previous crime scenes where DNA profiles have been uplifted from crime scenes;
3. research has shown that there is a high possibility of the convicted offenders repeating crimes either after release, or during parole. By retaining the DNA profile, any subsequent crime stain may be linked immediately to that person, whose full details will be on the NFDD. The rate of recidivism in South Africa is extremely high motivated for this convicted offender index to be imposed retrospectively. This will ensure that any convicted offender currently in prison, in remand or on parole must have a DNA sample taken and analysed before release.
Whilst currently the DNA Bill is linked to the seriousness of the initial offence for which the person was arrested or convicted, this does not necessarily predict the seriousness of subsequent offences with which the person may be associated. As a result, the current policy which only mandates the collection of samples from individuals arrested for Schedule 8 Offences, runs the risk of missing numerous detections of other types of less serious offences which do not fall under schedule 8. The Committee has however recognised this limitation but due to possible capacity demands on the Forensic Science Laboratory (FSL) in the initial phases of the implementation of the DNA Bill, it allows for this provision to be revisited after 5 years when the legislation will be reviewed.
So whose profiles will be entered onto the NFDD and how long will those profiles remain on the NFDD?
NFDD Profile Retention criteria summarised:
1. Crime scene samples and profiles are retained indefinitely.
2. Profiles migrated to CO index upon conviction, or removed following acquittal or if charges are dropped.
3. Subject to the Child Justice Act, a child’s profile is only retained for a set term after conviction. Adults – indefinite unless pardoned.
4. Retained until the purpose of the profile has been served.
The integrity of the NFDD: The DNA Bill adequately puts proper safeguards in place to ensure the integrity of the NFDD with severe penalties for any misuse of the information stored on the NFDD. Currently, no such protection exists in respect of the repository of DNA profiles held by the FSL which is yet another reason why laws regulating this area of the criminal justice system are urgently required.
Collection of DNA Samples by Police Officials by way of a Buccal Swab: The DNA Bill allows certain categories of specially trained police officers to collect a DNA sample from arrestees and convicted offenders through the simple process of a cheek swab. This is in line with Best International Practice as well as Interpol Recommendations (of which South Africa is a member country) and is convenient, logistically practical, and non-invasive. In addition the DNA sample itself will be destroyed once the forensic DNA profile has been entered on the NFDD. This is important because the DNA sample itself contains the full genetic make up of that person whereas the Forensic DNA profile derived therefrom is simply a unique identifier which provides no other behavioural, medical or personal information about that person other than their sex.
The successful implementation of the DNA legislation is going to depend largely on the continuous oversight and guidance of the National Forensic Oversight Ethics Board (NFOEB) which will be established in terms of the provisions of the DNA Bill. The Board will consist of 10 members, 5 of which will be selected from members of the public with knowledge and experience in forensic science, human rights law or ethics relating to forensic science, to be nominated by the public and appointed by the Minister of Police. The chairperson will be a retired judge or senior advocate with experience in human rights. A representative from the SAHRC will also be appointed. Only 3 of its members will be selected from the State. The fact that the NFOEB will be weighted in favour of members from the public means that it is truly an oversight body which will ensure that the correct balance is maintained between the state and public interests. The responsibilities of the Board are numerous and include, amongst others, monitoring the implementation of the legislation; providing proposals on various improvements in the forensic DNA field; oversight of operational processes to ensure best practices and quality assurance systems are followed; and the handling of complaints.
In order for the NFDD to be effective, the quality and quantity of DNA samples delivered to the Forensic Science Laboratories for analysis must be optimised. The Bill highlights the fact that training on the preservation of forensic evidence at a crime scene need to be addressed in South Africa. To this end, rigorous training has to be implemented amongst key sectors of the SAPS and community, namely: amongst first responding community police forums and police officers, emergency services, private security services as well as the general public. All of these sectors need to be able to assist in protecting and containing, as opposed to contaminating, a crime scene, thereby enabling trained forensic personnel to collect and retain usable DNA evidence for profiling and subsequent prosecution. The DNA Project has over the last 5 years embarked on a massive awareness campaign to help spread awareness in this regard through the implementation of crime scene awareness workshops as well as the distribution of awareness materials and via various media platforms – these programmes will continue to be implemented nationally and are more important now than ever.
Vanessa waiting to crack the champagne when the DNA Bill is finally promulgated!
There are two more steps before we see this Bill officially enacted: it needs to pass though the NCOP (National Council of Provinces) and thereafter, it will be sent to the President for his signature. At that point, the DNA Bill will officially become law. And then? Well then the REAL work begins as we all need to help ensure that its implementation is successful and that it translates into crime resolution. With all the above requirements adhered to, DNA profiling in a criminal context will help reduce the scourge of crime prevalent in South Africa today in a smart, advanced and constructive manner. After all, this is what we are fighting for.
Vanessa Lynch & The DNA Project Team
