Criminal Law (Forensic Procedures) Amendment “DNA” Bill: Minister’s briefing,
28 May 2013
The Minister of Police introduced the Criminal Law (Forensic Procedures) Amendment Bill, 2013, to the Committee, noting that there had been a lengthy process followed on this Bill, but it was a very important tool in the fight against crime in the country. The background to the Bill was outlined, noting that legislation had first been presented to Parliament in 2009, but this Committee had decided to split the fingerprinting clauses from the DNA clauses and to conduct further comparative research. Following this, the Department of Police (SAPS) had then re-drawn this current Bill, which essentially was aiming to set up, within SAPS, a DNA database for the analysis, detection and investigation of crime and for general criminality. Worldwide best practice had been taken into account. The Bill took account of human rights aspects, and there were restrictions on the use of the DNA database, with abuse regarded as a serious offence. Protection of children was covered. Its implementation would cut across various departments, and there had been extensive consultations with the Departments of Justice and Constitutional Development, Health, and Correctional Services. Possible abuse would be countered through processes of oversight and internal mechanisms. There was an implementation plan, with steady filling of posts in crime scene management and forensic analysis. The SAPS legal advisers added that the Minister of Justice and Constitutional Development had agreed that the Minister of Police could introduce the Bill, and extensive consultation had been done. The Bill contemplated five indeces, which were explained. Non-intimate samples included buccal samples taken from under a nail of a person, which may only be taken by police officials with the prescribed training. Intimate samples, excluding buccal samples, may be taken only by a registered medical doctor or a registered nurse. The DNA records would be expunged if no prosecution occurred, or if it was unsuccessful. Bill provided for the expungement of records in matters where the prosecution decided not to prosecute, or where a person had been found not guilty of an offence. The Bill provided for the reporting to Parliament on the DNA database, contained requirements about information, security practices and procedures, and introduced a National Forensic Oversight Board comprising of both governmental and nongovernmental role players, which was also to advise the Minister. An implementation plan and costing had been prepared.
Members asked for further clarity on the indeces, particularly in regard to the duplication of samples and the distinction between the indices, training and employment figures, ethical issues in relation to familial testing and obtaining warrants to collect samples.
The Directorate for Priority Crime Investigations (DPCI) presented the draft Policy Guidelines on what types of investigations may be conducted by the Directorate for Priority Crime Investigation, as determined by the Ministerial Committee, with which Parliament must concur. A Parliamentary legal adviser explained the difference between concurrence and approval. Members noted that despite the fact that aspects of the legislation were before the Court, this process to approve guidelines must continue to allow the DPCI to carry out its work. It was noted that the guidelines were drawn in a collaborative effort and had involved Detective Services of SAPS, and there were clear communication plans for SAPS. The process was outlined, and the relevant sections of the SAPS Act that dealt with the focus of the DPCI were explained. In essence, DPCI was to deal with National Priority Offences, which, in the opinion of the National Head of DPCI, warranted investigation by that unit. However, it would also investigate selected offences, as outlined in other pieces of legislation, and could investigate any other offence or category of offences referred to it from time to time by the National Commissioner, subject to any policy guidelines issued by the Minister and approved by Parliament. An explanation was given of national priority offences, with examples, and it was explained how the offences would be selected by the National Head. It was mostly serious or high level crimes that were investigated. The necessity for, and confirmation around various operational protocols was outlined. A protocol had been adopted for referral of cases between the Detective Services and the DPCI. Finally, it was noted that transitional arrangements required the DPCI to finalise ongoing investigations until such time as sufficient capacity had been created within the Detective Services to deal with offences that fell outside the scope of these guidelines. An implementation plan for the guidelines would be provided to the Minster within one month of approval of the guidelines by Parliament.
Members asked for further clarity on crime threat assessments, the national priority offences not selected by the National Head, the protocols with provincial commissioners, the transitional arrangements, and how capacity was measured. They questioned why “degrees of corruption” were named, asked what might happen if the National Commissioner did not refer certain crimes, and what would be the case with matters falling outside the SAPS mandate. Members asked how may cases were currently being investigated by the DPCI, although they might not fall strictly within its mandate, and for more detail on the protocols. A question was raised about protection of local councillors but this was to be finalised outside the meeting. Members stressed that capacity was essential, and asked for an indication of where capacity did and did not exist at present, and how it would be addressed. Members noted that the Hawks, or DPCI, did not have a high public profile and urged the Directorate to work on this. They adopted the Report recommending that Parliament note its concurrence.
Criminal Law (Forensic Procedures) Amendment Bill: Minister’s briefing
The Minister of Police, Mr Nathi Mthethwa, attended the meeting to brief the Committee on the Criminal Law (Forensic Procedures) Amendment Bill, commonly known as “the DNA Bill”. He noted that the process behind this Bill had been long, but that the legislation would be a very important part of the fight against crime, particularly violent crime.
The Bill essentially dealt with the setting up, within the South African Police Service (SAPS) of a DNA database for the analysis of detection and investigation of crime, and for general criminality. He said it was a technical Bill, but the process was helped by the intimate involvement of the Committee and the Task Force which had studied practices worldwide, particularly those in Canada and the United Kingdom of England and Wales (UK).
The Minister noted the particular issue of human rights, which imposed restrictions on the use of a DNA database, and said that abuse of the DNA database would be regarded as a serious and unlawful offence. The Bill also applied to the protection of children. It cut across different departments and legislation; for instance, there were clauses that dealt with the Criminal Procedure Act (CPA), which was implemented by the Department of Justice and Constitutional Development, and the Department of Correctional Services would be involved in the taking of buccal of persons convicted, particularly in relation to Schedule One. Possible abuse would be countered through processes of oversight and internal mechanisms.
The Minister reiterated the significance of the Bill in the fight against crime, and highlighted the importance of the implementation plan for the Bill and the personnel who would be implementing the Bill on a technical level. 800 posts had been filled in this area, particularly in crime scene management and forensic analysis. He noted that he was satisfied with the Bill, apart from his disappointment at the delayed process.
Ms Jenni Irish-Qhobosheane, Secretary of Police, introduced the technical delegation present. She highlighted that there were three important issues to highlight. The first was the SAPS capacity to implement the Bill, and she noted that the Bill was accompanied by an implementation plan. Secondly there should be protection of processes around the Bill. Thirdly, she noted that extensive consultation was carried out on the Bill, specifically with the Departments of Health (DOH) and Correctional Services (DCS).
Criminal Law (Forensic Procedures) Amendment Bill: Departmental briefing
Commissioner Philip Jacobs, Legal Adviser, SAPS, began by discussing the background to the Bill. A Criminal Law (Forensic Procedures) Amendment Bill of 2009 had been introduced in Parliament, following the recommendations of the Office for Criminal Justice Reform (OCJR). That Bill had dealt with issues related to enhancing the use of fingerprints and interdepartmental cooperation to link different fingerprint databases for crime investigation purposes. That Bill had furthermore provided for the establishment of a DNA database to enhance criminal investigations.
When the 2009 Bill was considered by the Committee, it had decided to split it, and to concentrate on, and pass legislation on, only the fingerprinting aspects, leaving aside the DNA clauses until more comparative research into the DNA issues had been conducted. The “DNA portions” were then referred back to the Minister of Police, so that these could be aligned with the research to be undertaken by the Portfolio Committee, and with any of its findings and recommendations. The Committee undertook a study tour abroad, as referred to by the Minister, accompanied by officials of the SAPS and members of the Office of the Chief State Law Adviser. A policy document was prepared and presented to Parliament in 2012. This was aligned to common practices overseas. The present Bill was then drafted and taken through the Development Committee. The Bill was approved and presented to Cabinet, for approval for introduction to Parliament. The Minister of Justice and Constitutional Development had agreed that the Minister of Police could introduce the Bill.
Drafting of the Bill was done by SAPS Forensic Services, SAPS Legal Services and the Civilian Secretariat of Police, working jointly as a single committee. Consultations on the Bill included the Department of Health, Department of Correctional Services, Department of Justice and Constitutional Development, the National Prosecuting Authority, the Justice, Crime Prevention and Security (JCPS) Director- Generals’ (DGs) Cluster, and the Development Committee, as well as civil society.
Comm Jacobs outlined that this Bill established a DNA database within the SAPS, and recognised the role a DNA database could play in fighting crime. DNA samples would be analysed and profiles stored, for the purposes of detection of crime and the investigation of cases. The Bill also paid attention to the necessary limitations and protections required in terms of human rights.
He noted that the DNA database would consist of five indices:
– A Crime Scene Index of samples taken at a crime scene
– An Arrestees Index
– A Volunteers Index
– A Convicted Offender Index
– An Elimination Index
Comm Jacobs said the Bill allowed for DNA buccal samples to be taken by police officials trained in the taking of samples, in line with prescripts of the Minister of Health. Non-intimate samples included buccal samples taken from under a nail of a person, which may only be taken by police officials with the prescribed training. Intimate samples, excluding buccal samples, may be taken only by a registered medical doctor or a registered nurse. The Bill provided for the expungement of records in matters where the prosecution decided not to prosecute, or where a person had been found not guilty of an offence. The Bill provided for the reporting to Parliament on the DNA database. It placed responsibilities on the National Commissioner to ensure that generally accepted information, security practices and procedures were followed. The Bill further introduced a National Forensic Oversight Board comprising of both governmental and nongovernmental role players. The Board was also tasked with advising the Minister on reviewing legislation, regulations, policy and protocols relating to the use of DNA.
An implementation plan for the Bill had been developed, in tandem with the Bill. The implementation plan had been costed and presented to the JCPS Development Committee. The Departments of Correctional Services and Health were specifically consulted on the plan.
Discussion
Mr V Ndlovu (IFP) sought elaboration on the indices outlined and training of crime officials.
Maj-Gen A Sheze, SAPS, again outlined the five indices covered in the Bill, and then amplified on them. The Crime Scene Index of samples taken at a crime scene would include any samples obtained from the crime scene itself, as collected by the Investigating Officer. The Arrestees Index made provisions for arrests, after which a sample would be taken from the arrestee. The Volunteers Index contained samples requested or samples volunteered. The Convicted Offender Index would be used if a conviction had been obtained, after the matter had been referred to the court and a finding of guilty was reached, and then samples would be retained under this category. The Elimination Index particularly pertained to the people working with samples, who would be asked to volunteer their samples, in order to prevent contamination.
Ms Irish-Qhobosheane added that samples given by parents of missing children would also fall under the volunteer sample index.
Lieut-Gen Johannes Phahlane, Divisional Commissioner, Forensic Services, SAPS, answered the question on training and employment. It was noted that 710 people were first employed in the 2010/11 financial year, 750 were employed in the 2011/12 financial year, 800 in 2012/13 and an additional 710 people were to be employed in this financial year. As the Minister had said, crime scene management in particular would be capacitated, but plans were also in place to increase the capacity of the forensic laboratories, by employing more forensic analysts. Another key area in which there was extra capacity was to ensure quality management for the purpose of compliance and standardisation. He said there was a requirement to have the broader SAPS members trained, in conjunction with the Department of Health, on the Bill, and the training programme would roll out once finalisation was complete. SAPS had also embarked on an awareness programme, to sensitise people to the implications, before the legislation was finally put in place.
Mr M George (COPE) questioned the consultation processes carried out, and asked if the Department consulted people with interest in these matters outside of government structures.
Ms Irish-Qhobosheane said a Memorandum of Understanding (MOU) was signed with the Department of Health, looking to the universities, which meant only trained officials could take samples. Extensive consultation was carried out outside government, through the Policy and Research Reference Group, for groups with particular interests, such as with the DNA Project.
Mr Ndlovu was worried that the SAPS still had not signed the MOU with the Department of Health and asked how long it would take to do so. He felt the entire process hinged on this and failure to do so could discredit the Department.
Ms Irish-Qhobosheane said the Department was at the final stages of signing the MOU, but there was already an agreement in place that the Department of Health would do the training.
The Chairperson asked whether the Board would play the part of an ethics committee.
Ms Irish-Qhobosheane said the Board would definitely need to look at ethics, as it was an oversight body, as well as setting standards, and it would need to be given the necessary capacity.
Mr George sought discussion on the implementation plan.
Ms M Molebatsi (ANC) questioned the arrestee and crime scene index samples, and said she was concerned about duplication between these two indices.
Gen Sheze noted that the crime scene and arrestee indices were two independent categories unrelated to one another. She explained that the role of the crime scene examiner was to pick up evidence from the crime scene, but not to collect a sample from an individual, as would be the case under the arrestee index. She said there may be a merge between the samples from these two indices.
The Chairperson told the Members that in the following week, a clause by clause evaluation from the Committee Researchers was needed, and there would be a discussion on the implementation plan before engaging with the legislation.
The Chairperson asked if SAPS had considered the use of a warrant to obtain samples, and asked how the officers who were to take the samples would be selected or determined, and what type of police officer this could be. She said the laboratories might be ready, but the collection of samples on the ground might not be ready.
Comm Jacobs spoke about warrants, noting that it was impossible to oblige police officers to obtain warrants for all Schedule One arrests. There was a clear distinction between the types of samples to be taken. For instance, blood samples could only be taken by a doctor or registered nurse. Under certain Acts, like the Firearm Control Act, a warrant also has to be obtained. He felt it was important to look at the practical implications of getting a warrant, and the issue of rights between a buccal sample and a fingerprint.
Mr G Lekgetho (ANC) appreciated the detailed information regarding appointments but he did not hear the date for the 710 appointees in crime scene management. He asked about the requirements for these appointments
Gen Phahlane said that the 710 appointments were made during this financial year but in total, 2 200 people had been appointed to capacitate the SAPS in this area, since the process began in the 2010/11 financial year. These appointments were done in phases, which made the appointment process a little lengthier, but this was necessary for full compliance. He said there was no contradiction and the same process had been spoken to throughout this presentation.
Ms Irish-Qhobosheane said the issue of training could be dealt with in the following week.
The Chairperson thought an indication could be given now.
Gen Sheze explained that the training of taking of samples involved also the members of the Independent Police Investigative Directorate (IPID) and those outside SAPS. Training must be done by the Department of Health, as it was part of the legislative mandate of that Department to deal with the medical practitioners. Within SAPS, the trained officers would go from the commander’s level through to cases and the Visible Policing (VISPOL) environment, while the crime scene managers would be the last to be trained. The MOU outlined the training programme of the different groups, and the processes were almost finalised, which would complete it. At the next session, this issue could be raised again, for an indication of further progress.
Ms D Kohler-Barnard (DA) sought clarity on the fairly contentious issue of familial searching, to find very similar DNA. She asked whether the process was allowed, as it seemed to be in the legislation, and whether it was likely to cause difficulties during the public hearings.
Comm Jacobs responded that familial searches related to evidence available in a certain case, but where the court could be approached to obtain a warrant to carry out a DNA search. For cases based on speculation, SAPS would have to make use of the mechanisms available in the Criminal Procedures Act.
Gen Sheze expanded that familial searches were searches conducted to try to source the originator of a sample, to see who could be associated with a certain profile, for example, if a sample was a common occurrence in a particular group or family. The family would then be approached to provide a sample. She noted there were a number of human rights concerns with this process all over the world, but it was accepted practice in the UK. The concerns particularly related to invasion of privacy. She said the Bill did not talk to familial searches, given the dynamics of the Constitution and Human Rights issues under Section 21.
The Chairperson highlighted that next week’s meeting would deal with the clause by clause evaluation from the researchers, as well as the implementation plan. The week thereafter would focus on the public hearings. She highlighted the processes of Parliament. Before hearings, the Bill needed to be advertised for a certain amount of time, and the Committee was now at that stage. The closing date for public comments was 31 May 2013. The comments would be summarised, and those who were invited to make public oral submissions would be invited to present them; at this stage three days had been set aside, although it may be longer. The Committee was then due to jointly meet with the Portfolio Committee on Justice and Constitutional Development, to go through the first part of the Bill, and then the rest of the Bill would be discussed by this Committee alone. She reminded the Committee Secretary to meet with her counterpart from the Justice Committee to secure dates. The Committee Section was beginning compiling files of the relevant documents for Members already.
This is a hugely important milestone – hopefully the bill will get the wholehearted supported of all parties in Parliament (a few improvements during the public consultation process too!). I have signed the petition and made a small donation to the DNA Project. Thanks for your 9-year effort Vanessa and team – you can see the home straight now!