The clause-by-clause reading by South African Police Service and Justice Department continued last week in Parliament, with the Portfolio Committee determined to finalise and adopt the first phase of the Bill dealing with Fingerprints. The SAPS legal division team presented the legal drafting of the changes proposed by the Committee. Members asked questions about police’s powers in dealing with fingerprints and body-prints and the Home Affairs and Transport databases. Consensus was reached in giving a 15 year sentence, without the option of a fine, to anyone misusing or tampering with the profiles on the database. The Committee agreed to insert a clause stating that the directors-general under the chairmanship of the National Commissioner should develop standard operating procedures about accessing and sharing of databases. Thereafter, the Bill was adopted by the Committee.

The second part of the meeting concerned expert testimony on Forensic DNA database legislation. The presentation reflected how other countries had gone about developing and using DNA database legislation in solving crime and protecting the innocent. It was clear that forensic DNA analysis was a critical crime fighting tool. The use of private owned laboratories to address backlogs and policies on sample retention was addressed. Members wanted to know more about how forensic DNA technology was being used in developing countries. The United Kingdom was identified as the leading developed country that had made effective use of forensic DNA technology in fighting crime. Members asked about resources needed for the training of people and who would be responsible for operating the technology used in DNA analysis.

Adoption of the Bill
The Chairperson asked members to express their views on whether they were in favour or against the adoption of the Bill. She said that Mr V Ndlovu (IFP), Mr M George (COPE) and Rev K Meshoe (ACDP) had indicated to her that if they were not present during the voting session, they should be regarded as having voted in favour of adopting the Bill.

Mr G Schneemann (ANC) moved for adoption and was supported by Ms D Schafer (DA) and there was no one opposed to the adoption.

The Chairperson thanked everybody who had been involved in the processing of the Bill, and expressed her gratitude in particular to the lawyers for their guidance.

The Bill was unanimously adopted.

Global Perspective on Forensic DNA Database Legislation
Mr Chris Asplen, Vice President: Gordon Thomas Honeywell Governmental Affairs, thanked the Committee for the invitation and said he had testified about the value of Forensic DNA database legislation in many countries and he was privileged to testify in South Africa. South Africa, like his home country, the United States of America, were among the few countries that had realised the importance of investigating heavily in DNA forensic technology. The usage of forensic technology was not only useful for the conviction of the guilty. It was also an important tool for exonerating the innocent who had been wrongly accused and convicted. There were many incidents in the US of how sophisticated DNA tests led to the protection of the innocent as well as the detection and conviction of the guilty. One of the challenges that many countries were facing about DNA database utilisation was massive backlogs. The only way such backlogs could be reduced was through involving private laboratories. There was not a single country, of those which were using private laboratories, which gave an indication that such usage compromised the quality or the integrity of the database.

United States spent about $100 million every year on contracted services. Even the United Kingdom which was a leading case study of forensic DNA database utilisation, used private laboratories to accommodate backlogs. Countries differed when it came to the retention of samples after the profiles had been extracted. The common trend however was that most countries kept samples for as long as the profiles remained in the databases for obvious reasons of re-testing once technology improved. Other countries were also not very strict when it came to who may take samples such as blood, which in many cases involved a quick finger prick and hence no rigid requirements about medical personnel. Kenya, although not doing so well due to a lack of investment into the programme, was the only African country that had in place forensic DNA legislation. The South African legislation, which seemed very solid and took cognisant of many issues, needed to be given the praise that it deserved. It was hoped that other countries would follow suit and contribute towards creating a credible criminal justice system and a safe habitat for humanity.

Discussion
Mr G Schneemann (ANC) thanked Mr Asplen and said the he was confident that the Committee would consider some of the points mentioned in his presentation when it began processing the second part of the Bill they just adopted.

The Chairperson agreed and said the presentation had made it clear that the Committee was correct in arranging to have a study tour to other countries so that it got first-hand experience of how other countries grappled with DNA database legislation. She wondered if Kenya was the only African or developing county case study that had done something about developing forensic DNA database legislation.

Mr Asplen replied that based on the information he had, Kenya was the only African country that he knew of.  However, there were developing countries in Asia, Malaysia being one of them, that had a sound DNA database. The one in Kenya focused only on convicted persons.

Ms D Kohler Barnard (DA) asked whether the United Kingdom and the United States had any form of legislation or memorandum of agreement that allowed the two countries to share their databases.

Mr Asplen said at present there was no treaty between the two countries on the sharing of databases but both countries were part of Interpol. There was an Interpol agreement that allowed individual member countries to share each other’s databases. There was nothing, in terms of international law, which prevented countries from signing a treaty of that kind but such efforts could be done using the networks of Interpol.

Ms A Van Wyk (ANC) noted that countries differed in their policy on retention of samples once the DNA profiles had been extracted. It would be interesting to know for how long those countries kept the samples.

Mr Asplen replied that countries kept or destroyed samples for various reasons such as for legal, historical and cultural reasons. Examples of those countries that destroyed samples were Germany and Belgium. It would be critically important when making a sample or profile destruction policy for any expunged records to ensure that adequate time was allowed for law enforcement agencies to logistically remove the samples from database.

Mr G Schneemann (ANC) asked what the turnaround time for state owned laboratories was as compared to the private labs, which were hailed as faster and more efficient.

Mr Asplen said comparing private labs to public labs was not a simple exercise. There were many factors that led to discrepancies between the two. One factor would be the level of backlogs which a particular country may face. Japan had a huge population but relatively very low levels of crime and hence the turnaround time even by the public owned laboratories was much faster than in the US for instance.

Ms Van Wyk asked what resources had been ploughed into training police and prosecutors in order to put them in a position of being able to operate the equipment used in forensic laboratories.

Mr Asplen said the issue of training was indeed very critical and was glad that the South African legislation addressed that aspect satisfactorily. United States invested huge amounts of resources into training programmes and hiring of experts to operate the laboratories. Overall, training of personnel was something that needed to be prioritised in order to reap the rewards of using forensic DNA laboratories.

The Chairperson asked Mr Asplen to give his view on the reliability of information obtained from the laboratories. There was a police official in her neighbourhood who bore a very close resemblance to someone who seemed to be his son but he denied that he was the father! On taking the paternity test, the results confirmed that indeed he was not the father despite the strikingly similar resemblance between the two. Such incidents seemed to indicate that either the machines gave the wrong information or there was a risk of manipulation by people.

Mr Asplen said it would be naive and misleading to suggest to the Committee that forensic DNA analysis had no faults of its own. In the end, the human element and general mishaps of machines could lead to one or two undesirable incidents. Such were to be expected in any system including the United States, but what he could guarantee the Committee, especially with regard to the story told by the Chairperson, was that DNA results could give a negative false answer on very few occasions such as to say someone is not the father. However, it would never give a false positive DNA profiling unless there was manipulation or errors caused by human beings.

The Chairperson thanked Mr Asplen for his time, saying she could see that the members had many questions but since time would not allow it, the meeting had to be concluded.

The meeting was adjourned.

See also http://www.pmg.org.za/report/20100323-clause-clause-discussion-criminal-law-forensic-procedures-amendment-b for further information.

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