The following article was written by Andrew Faull, Researcher, Crime and Justice Programme, ISS Pretoria Office with the assistance of The DNA Project:

When South African President Jacob Zuma delivered his State of the Nation address on the 10th of February 2010 he made a fleeting but important reference to crime and policing. He said the government would continue “to increase the capacity and effectiveness of the police, in particular the detective services, forensic analysts and crime intelligence.” His statement echoes those we have heard from the Minister of Police, Nathi Mthethwa, over the past year, in which he has promised to “fight crime smarter and tougher”.  While most South Africans celebrate the “tough” approach to crime, it is the “smart” element that deserves more attention. Indeed, each of the three areas mentioned by the President suggest a shift toward an intelligence and science driven approach to criminal investigations.

One of the most important developments in forensic investigation in recent decades has been the increased use of DNA evidence in investigating and prosecuting criminal offenses. In South Africa, lack of legislation and training has meant the South African Police Service (SAPS) has yet to fulfill its potential in this area, but 2011 may see this all change.

DNA, or deoxyribonucleic acid, can be thought of as the fingerprint of the 21st century. Carried in every human cell, it is an unchanging signature that remains with us throughout our lives. Everywhere we go, unless we take extreme precaution, we leave trails of our DNA. With access to a global DNA database, a well-resourced forensic investigator could theoretically visit any location and ascertain exactly who had recently been there. The potential of this for criminal investigations is vast. It includes:

• Linking suspects to crime scenes;
• Excluding suspects and exonerating those incorrectly found guilty;
• Linking suspects to multiple crime scenes using a DNA trail;
• Allowing for “cold hits” where someone who is not a suspect is linked to a crime scene through a DNA database;
• Deterring would-be offenders from committing crime for fear of rapid detection.

An important premise behind intelligence driven policing is that a small percentage of offenders often account for a large percentage of all crimes. It has also been shown that many criminals re-offend, and that career criminals often start out by committing minor offenses which increase in severity over time. Connecting a variety of otherwise disconnected crimes is relatively simple using DNA analysis, providing sufficient DNA evidence is gathered from all crime scenes, crime victims, and criminal offenders, and stored in a DNA database. It is not difficult to imagine how DNA could revolutionise criminal investigations in South Africa.

Since 2004 the DNA Project, a non-governmental organisation based in Cape Town and Durban, has been advocating for the comprehensive use of DNA gathering and analysis in crime detection and prevention.  In order for this to occur, it has pushed for a number of key developments.

First among these is the passing of the Criminal Law (Forensic Procedures) Amendment Bill of 2009. The passing of the Bill, which was drafted in 2008 and is waiting parliamentary review, would signify a breakthrough for advocates of forensic investigations. In particular the Bill:

The importance of this legislation cannot be overstated. Current legislation does not allow criminal justice officials to gather DNA samples from suspects or convicted offenders, despite the process being relatively non-invasive (a swab on the inner cheek or a finger prick). Under the new Act the gathering of samples will be allowed, so that over time a national database will emerge against which all crime scene DNA evidence can be checked. In the United Kingdom, which now has a database of over 5 million individuals, this has lead to over 40 000 match reports a year – including 15 murder, 45 rape and 2500 vehicle, property and drug related matches a month. These are leads in cases where there may be no other clues. When a DNA profile from a crime scene is loaded onto the UK’s database there is a 52% chance of an immediate match to a suspect, this increases to 68% if the profile is left on the database for 12 months as offenders are likely to re-offend within a year. Such capacity in South Africa could substantially assist the work of SAPS detectives.

Perhaps the second most important change being called for by the DNA Project is that all South African citizens, particularly those of emergency service (EMS) workers and police be conscientised about DNA as it relates to crime scenes. Although all crime scenes should be sealed off until a crime scene investigator arrives, this often does not occur. The presence of people at a crime scene is detrimental for the gathering of both traditional and forensic evidence. Each police official, member of the public or EMS worker who enters a crime scene is likely to leave traces of their own DNA in the form of hair, skin cells, cigarette butts, saliva and other organic material. It is vital that such people are aware that they must not walk around the scene of a crime so that DNA does not become contaminated.

Although South Africa needs to train more forensic investigators and analysts, the SAPS is already well-positioned to embrace DNA-based investigations.  In 2006 South Africa opened the world’s first fully automated robotic DNA analyses facility which has the capacity to analyse 800 DNA samples every day. There are two other manual analysis labs in the country, and the SAPS is in the process of establishing additional labs in each province. However, there is a need for improvements to the SAPS policy on DNA analysis. At present priority analysis is conducted on samples requested by state prosecutors and only where there is a suspect. This does not allow for “cold hits” in cases where there may not be a suspect.

DNA alone does not solve cases, but it certainly can make certain investigations, such as rape, infinitely simpler. In the UK, when confronted with DNA evidence of their presence at a crime scene, 82% of suspects confess to the crime immediately reducing the need for a full trial. While forensic science brings with it significant ethical questions and is sure to be challenged, it has largely stood up to ethical and scientific challenges in jurisdictions where it is widely used.

South Africa is on the cusp of a criminal investigation revolution. It is now up to parliament to pass, the legislation required to significantly alter the landscape of criminal investigation and prosecution in South Africa.

See also the following article which appeared on http://www.businessday.co.za/articles/Content.aspx?id=135709

LEGISLATION making it possible to collect DNA samples from suspects or convicted offenders is unlikely to be passed by Parliament any time soon.

Andrew Faull, researcher at the Institute for Security Studies, is among those who are asking what happened to the legislation, originally part of a 2009 bill.

He considers one of the most important developments in forensic investigation in recent decades to be the increased use of DNA evidence in investigating and prosecuting criminal offences.

Democratic Alliance MP and member of the portfolio committee on police Dianne Kohler Barnard said on Friday that the committee would first need to go on a study tour to Canada and the US to investigate international best practice on DNA databases before considering introducing such legislation in SA.

“We need to speak from an informed perspective,” she said. The visit is scheduled to take place in July.

As legislation now stands in SA, criminal justice officials are not allowed to gather DNA samples, despite the process being relatively noninvasive.

Mr Faull said an important premise behind intelligence- driven policing was that a small percentage of offenders often accounted for a large percentage of all crimes.

The DNA database against which all crime-scene DNA evidence can be checked will help police in ensuring that they not only have a “tough” approach to crime, but also have smarter ways to investigate.

The building of the DNA database was originally part of the Criminal Law (Forensic Procedures) Amendment Bill of 2009 that also included the collection and storage of fingerprints, palm prints, footprints and photographic images for the purpose of fighting crime.

However, the portfolio committee on police decided to pass two separate laws — one for fingerprint collection and another for the DNA database.

The law governing the collection and storage of fingerprints was passed last year.

Ms Kohler Barnard said interested parties had raised several concerns about the building of a DNA database, ranging from fear that DNA could be stolen and used for profiling, to concern about the invasion of privacy.

She agreed that in the case of rape, it was often one person committing multiple rapes before finally being caught by police.

Mr Faull said it had also been shown that many criminals re- offended, and that career criminals often began by committing minor offences which increased in severity over time.

“Connecting a variety of otherwise disconnected crimes is relatively simple using DNA analysis, providing sufficient evidence is gathered from all crime scenes, crime victims and offenders, and stored in a DNA database,” Mr Faull said.

“It is not difficult to imagine how DNA could revolutionise criminal investigations in SA.”

Ms Kohler Barnard said one of the main challenges in the proposed legislation was to ensure the DNA database was secure, and that there was no opportunity for someone to remove a DNA sample and place it fraudulently at a crime scene to implicate someone else.

mabuzae@bdfm.co.za