Forensics Bill before Parliament

Members of Parliament will tomorrow appoint an ad hoc committee to consider the Criminal Law (Forensic Procedures) Amendment Bill, one of a raft of measures announced by Cabinet last month to step up the fight against crime and address what government calls “some of the urgent weaknesses in the [justice] system”.
The Bill, tabled in the National Assembly last Tuesday, will authorise the police to access the finger-print databases of other government departments for criminal investigation purposes and will give them power to create what amounts to a DNA library, to be called the National DNA Database of South Africa.
The legislation will effectively give the police access to the Department of Home Affairs` National Identification System (HANIS) and National Population Register. HANIS contains the fingerprints and photographs of every citizen and permanent resident who has ever applied for a passport or identity document, every visitor who has applied for a visa and every illegal immigrant who has been deported.
Privacy concerns – and the absence of appropriate installed technology – have previously prevented the police, prosecutors and prisons access to the more than 31 million records held in HANIS.

The police have up to now only been able to check fingerprints taken at crime scenes against their own, much more limited database consisting mostly of that of convicted criminals - a major impediment in linking prints to felons.       

The Bill is the result of work by the Office for Criminal Justice System Reform (OCJSR) that reports to the Deputy Minister of Justice and Constitutional Development. A memorandum attached to the Bill says the OCJSR “which is responsible for the review of the Criminal Justice System, has identified as a priority the need to strengthen the forensic investigative powers and capacity of the [police].
“Through an analysis of existing legislation and regulations in South Africa, together with a comparative overview of recent crime scene and forensic developments in other jurisdictions, certain major legislative constraints and lacunas have been identified, in respect of at least two pivotal aspects of our forensic crime fighting capacity, namely the collection, storage and use of fingerprinting and DNA evidence.
“Despite the fact that a number of government departments administer databases containing fingerprints, the SAPS (SA Police Service) currently, due to legal and information technology reasons, only have access to the fingerprints stored on the SAPS AFIS (Automated Fingerprint Information System) system.
“As a result, the SAPS have no access to the HANIS system of the Department of Home Affairs, where fingerprints of 31 million citizens and about 2.5 million foreigners are kept, or to the eNatis (electronic national transport information system) system of the Department of Transport, where a further six million thumbprints are located.
“In this regard it must be noted that the Review, through an analysis of a compendium of statistics, found that in a large proportion of cases the perpetrator remained undetected,” the memorandum informs.  
In addition, the current legislative scheme as set out in section 37 of the Criminal Procedure Act 51 of 1977 (CPA) does not make the taking of fingerprints compulsory, even in instances where a person has been convicted of an offence.
“Section 37(5) of the CPA, further requires the destruction of fingerprints, palm-prints, foot-prints, photographs and the record of steps taken to obtain such evidence if a person is found not guilty or if no prosecution was instituted against a person from whom such evidence was collected.
“Therefore, the manner in which fingerprints are currently collected, loaded onto the SAPS` fingerprint database and used, means that a fingerprint lifted at a crime scene will most likely only be checked against the ‘‘limited“ number of fingerprints from convicted offenders, which have been included in the database.
“Although the taking of blood samples in criminal cases and the ascertainment of other bodily features are broadly regulated by section 37 of the CPA, no mention is made of the collection of DNA evidence. There is no legislation in South Africa which specifically provides for the establishment and administration of a DNA database as a criminal intelligence tool.”
The memorandum`s writers say the advantages of a strengthened forensic crime fighting capacity in these two areas can be summarised as follows:
·         A DNA database and an expanded fingerprint capacity are important intelligence tools, particularly in crimes where detection is generally low, such as property crimes and can lead to a significant increase in suspect-to-crime-scene matches.
·         DNA scene-to-scene matches help identify patterns of criminal behaviour that may solve past, existing  and future crimes. In other words, not only will an expanded fingerprint database and DNA database increase the likelihood of identifying unknown perpetrators, but it will also increase the possibility of linking perpetrators to multiple crime scenes.
They add that the probability of plea bargains increase when suspects are confronted with real evidence, such as fingerprints and DNA evidence linking them to a crime scene.
“It should also always be borne in mind that fingerprints and especially DNA evidence are used not only to prove guilt, but also to prove innocence.”
The memorandum adds that the Bill also includes “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 the conduct of a prosecution.”
The OCJSR notes the Bill was developed in consultation with the police, the National Prosecuting Authority, the Department of Correctional Services, the Department of Home Affairs, the Department of Transport, National Treasury and the DNA Project, a nongovernmental organisation founded in 2004 by Vanessa Lynch and Rob Matthews.
It adds that the Bill has been costed and a business plan has been developed to implement the measures required, which will include a “significant capacity expansion in respect of both human and other resources” within the police and criminal justice system, inclusive of a business systems reengineering plan together with “current” and “to be” process mapping.
“Additional personnel will have to be trained and retention strategies, such as an occupation specific dispensation, must be implemented to retain scarce skills within the forensic science field,” the document warns.
Matthews says the “Bill will make a significant difference to combating crime in the country.”
He has told ITWeb that up to now the process of collecting DNA evidence from a suspect required blood to be taken. Once law, the Bill will require just a saliva swab. “It will dramatically reduce the time taken to analyse DNA and also amounts to high cost savings.”
Lynch adds the Bill is a milestone because it will allow for the immediate creation of a DNA profile for all convicted offenders.
“The enactment of this new law will serve as a deterrent for criminals and address the issues of accountability, which pose a huge issue in SA in respect of repeat crimes being committed by the same person,” says Lynch.
She also welcomes the Bill`s authorisation of so-called “speculative searches”.
A section in the draft law provides that fingerprints taken at crime scenes may be subjected to a speculative search against other databases in order to identify suspects and that non-intimate samples collected my be run against the National DNA Database. Non-intimate samples are hair samples “other than pubic hair”, material taken “from a nail or from under a nail”, “a swab taken from the mouth (buccal swab)”, a blood finger prick or a combination of these.