DNA Project | Expanding SA's DNA Criminal Intelligence Database

The New DNA Bill

Legislative Reform

There exists an urgent requirement in SA for the enactment of DNA specific legislation that will govern the upliftment and retention of DNA Profiles on the Database. It is irrefutable that the use of DNA evidence holds promise for all aspects of the criminal justice system. It will ensure prompt and public verdicts and will more often lead to guilty pleas. These guilty pleas would in addition spare already traumatised sexual assault and child victims the trauma of trial. Guilty pleas also save taxpayers money by reducing court staff time and reducing costs for prosecutors and public defenders. Maximising the use of DNA evidence promotes fairness, confidence, and certainty in the administration of these laws.
How Does a DNA Database Translate Into Crime Resolution?
DNA is a powerful tool because each person's DNA is different from every other individual's, except for identical twins. Because of that difference, DNA collected from a crime scene can either link a suspect to the evidence or eliminate a suspect, and when evidence from one crime scene is compared with evidence from another, those crime scenes can be linked to the same perpetrator nationwide. Moreover, DNA maintains its integrity, so that evidence from crimes committed many years ago, may still yield sufficient DNA to conduct an analysis.

How does a "match” occur on the DNA Database and why is it key to resolving crimes?

The DNA profile derived from every collected sample, be it from a person or crime scene, is analysed to produce a 'DNA profile' for each individual. The database relies on the fact that every person's DNA is unique (unless they are an identical twin). Following collection and analysis of a sample, a new DNA profile can be compared with the profiles stored on the database and a match can arise if, inter alia
A new scene of crime profile matches the profile of an individual already on the database. This can help to identify a potential suspect very rapidly;
A new individual's profile matches a stored scene of crime profile from an unsolved crime or crimes on the database. This type of 'speculative search' can identify a potential suspect long after a crime has been committed;

While blood, saliva and semen are still the main sources of DNA for forensic testing, trace amounts of DNA, for example from epithelial cells, are now able to be acquired from touched objects, such as the handle of a weapon, the steering wheel of a stolen car or the inside of a glove. Equally as important as the analysis of the suspected offender samples, is the analysis of the biological evidence collected from crime scenes, regardless of whether a suspect has been identified in that case. The saliva on the rim of a bottle used by a suspected criminal or the skin cells or hair shed on a woolen cap worn by a suspected criminal can be compared with a suspect's blood or saliva sample. Similarly, DNA collected from the perspiration on a hat or scarf discarded by a rapist at one crime scene can be compared with DNA in the saliva swabbed from the bite mark on a different rape victim.

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

How would the National DNA Database match profiles?

With the new legislation proposed by the Department of Justice, 5 separate indices will be created on the NDD, namely:
The ‘Crime Scene Index,' containing DNA profiles collected from crime scenes;
The ‘Reference Index,' containing DNA profiles taken from persons suspected, reported, charged, or cautioned for any recordable offence;
The ‘Convicted Offender Index,' containing DNA profiles of convicted offenders;
The ‘Volunteer Index,' containing DNA profiles of victims as well as persons wishing their profile to be kept on the database, for e.g., children, whose parents wish to record their DNA in the event that they go missing;
The ‘Staff Elimination Index,' containing DNA profiles of staff working with the DNA evidence, to exclude them if contamination of the sample occurs whilst handling it.

A "known sample" or "suspect sample" which is entered onto either the Reference Index or Convicted Offender Index, is a DNA profile uplifted from a person either arrested for an alleged crime or a convicted offender. A crime scene sample is a sample uplifted from a crime scene (e.g. hair/blood/semen) where the perpetrator is unknown. Given the recidivistic nature of crimes in SA, a likelihood exists that the individual who committed the crime being investigated may have been convicted of a similar crime and may already have his or her DNA profile in the DNA database. This type of speculative searching permits the cross-comparison of DNA profiles developed from biological evidence found at crime scenes (known as Crime Scene to Crime Scene Match). Even if a perpetrator is not identified through the database, crimes may be linked to each other, thereby aiding an investigation, which may lead to the identification of a suspect.

In this way, the DNA Database is grown, by entering known or suspect samples into the Reference and Convicted Indexes and unknown samples, or crime scene samples into the Crime Scene Index. To find a match, forensic analysts compare the DNA profile obtained from crime scene evidence to the profile from a known individual (e.g., suspect or victim). It goes without saying, that the more "known samples" that exist on the Reference & Convicted Offender Indexes, the greater chance of there being a match when an unknown or crime scene sample is entered on the database and run against the reference or convicted offended database.

Typically there are three possible laboratory outcomes when a DNA Profile is entered onto the DNA Database:
If the DNA profile from a crime scene and known samples are identical, forensic analysts interpret this finding as a "match," or a "hit";
If the two profiles are not consistent, the finding is interpreted as a "non-match" or "exclusion";
If there is insufficient data to support a conclusion, the finding is often referred to as "inconclusive”.

Why Do We Need this new Legislation To Regulate a National DNA Database?

The existing DNA Database in SA, has through default, evolved under the governance of the Criminal Procedure Act of 1977, which act was promulgated long before the advent of DNA Profiling was discovered and thereafter used as a Criminal Intelligence Tool. S.37 of the CPA is a wholly inadequate tool for regulating the use and retention of DNA profiles on a National DNA Database and equates to the notion of trying to fit a square peg into a round hole. The proposed new legislation, in particular the section which governs DNA profiling and its use and retention on a DNA Database, ensures that the future of the current DNA Database is expanded and managed in a regulated and appropriate manner.
Legislating policies and procedures to institute these practices is a matter of some urgency, both because of the potential value of DNA as a law enforcement tool and because of the civil liberties issues that these practices raise.

The creation of the Reference Index, Crime Scene Index and Convicted Offender Index ensures that DNA profiles are appropriately stored and managed.

The way in which the DNA profiles are stored on the DNA Database, namely by using only 9 “markers” or numbers to create a unique number to identify that individual, ensures that no genetic disposition or other distinguishing feature may be read from that profile. The retention of the profile, in that form, is the same as a fingerprint, and therefore its indefinite retention does not have an impact on the individual in any way whatsoever, particularly if that individual has no intention of ever committing a crime, which is the only time when the profile will be used to establish a match as against a crime.

The collection of a DNA sample is furthermore allowed by the proposed new legislation to be taken by a Police Officer in a less invasive way, i.e. by a simple saliva scraping (buccal swab) or pinprick. It ensures that a sample is quickly and easily uplifted (as opposed to previously having been taken by a medical practitioner by the drawing of blood) and ensures that the person is not held unnecessarily i.e. the profile of the suspect either matches the crime scene or victim or not – this is quickly established by a simple process of analysis.

The establishment of a convicted offender database, retroactively, is a crucial aspect of the Bill. There is absolutely no difference between a criminal who has been convicted before or after the Bill has been passed – a convicted offender, by definition, includes all persons who have been convicted of a crime, and there should be no policy of exclusion based on the date of enactment of the Bill. The reason for retaining a convicted offender’s DNA profile on the Database is the same, regardless of when they were convicted and the chance of that person re-offending is equally as high. Therefore, the new Bill correctly calls for all DNA Profiles of convicted criminals to be included in the DNA Database retrospectively, regardless of when the person was convicted.

The rationale behind obtaining DNA profiles from all convicted criminals is because research has show that:
It acts as a deterrent and addresses the issues of accountability, both of which pose a huge issue in SA in respect of repeat crimes being committed by the same person;
It could be used to link the offender with previous crime scenes where DNA profiles have been uplifted from crime scenes;
There is a high possibility of the convicted offenders repeating crimes either after release, or during parole and by retaining the DNA profile, any subsequent crime stain may be linked immediately to that person, whose full details will be on the database.
There is no difference between the fingerprint of a convicted criminal and the DNA Profile of a convicted offender being kept on record. The fact that it will help in reducing recidivism in this country by acting as a deterrent, makes the adoption of the new Bill even more critical.
The DNA Project’s Position on the new Bill

The DNA Project advocates that the public interest which is served by the new Bill, is great, especially in cases of violent crime where DNA matching has been proven to be invaluable in matching a suspect to a crime scene. The noninvasive methods of obtaining DNA samples (rubbing a swab around the person’s mouth, or obtaining a drop or two of blood from a pinprick to a finger), are no different to having a breathalyzer taken on suspicion of drunken driving.

On the issue of privacy, although individuals have a more powerful expectation of privacy regarding their DNA information, the current situation in SA where crime levels are unacceptably high, illustrate that there exist more circumstances in which the public interest in prosecuting persons guilty of serious crimes outweighs these interests. The new Bill ensures that DNA profiles are used solely for criminal intelligence purposes and for identifying the individuals accurately, which limits the potential for interference with privacy.

As with fingerprints, DNA information represents an important law enforcement tool that will allow police to determine whether there is any reason to think that a suspect in one crime has been involved in other crime. Moreover, it is information that will aid police most directly in solving the most serious types of violent crime. It would thus have very serious implications to limit the storage and retention of DNA on a database, which may deny us the deterrent potential that banking DNA information may have on persons who have committed offences and the opportunity to solve violent crimes these persons may already have committed or may go on to commit. These broader considerations were clearly an important part of the rationale for drafting the new Bill, and if anything they apply more strongly for taking DNA information from suspects.

The DNA Project recognizes and supports the aim of amending the current Criminal Procedure Act to allow law enforcement authorities to collect DNA samples from suspects, to demand DNA from those arrestee, and to bank DNA information for legitimate law enforcement purposes.

The DNA Project fully supports the Criminal Justice Reform Committees efforts to reduce crime and increase public safety through the creation, application and maintenance of a National DNA database, for criminal intelligence purposes. In particular the new Bill adequately retains an appropriate balance between the rights of individuals and the respect for privacy. The Bill shows that the Government has explicitly tackled the scourge of crime in SA by demonstrating that if there is any perceived intrusion on an individual through the retention of their DNA profile, it is outweighed by a demonstrated and long awaited interest in protecting its citizens against serious and violent and crimes.

In addition, the Bill ensures that the creation of a DNA database in SA will function effectively not only as a tool for gathering inculpatory evidence, but for gathering exculpatory evidence, to appropriately eliminate suspects and so safeguard against wrongful convictions or other miscarriages of justice.

The Dept. of Justice has prepared the first ever DNA specific legislation in SA, which includes inter alia, the inclusion of convicted offenders profiles retrospectively as well as the upliftment of profiles of suspects by a police officer ( as opposed to a medical practitioner). Along with these key areas, the regulation of speculative searching for criminal intelligence purposes was included in the draft legislation and the formal creation of the SA DNA Database addressed through legislation. The passing of this legislation will create a scenario in which an explosion of needs in the area of forensic science will arise, and the task team is currently addressing these areas, which include cost, capacity and DNA awareness training.

The Ad Hoc Portfolio Committee (PC) on the Criminal Law (Forensic Procedures) Amendment Bill Committee

The Ad Hoc PC first convened on the 20 January 2009. The opening presentation to the Ad Hoc PC was delivered by the Deputy Minister of Justice, Johnny de Lange. Issues that were covered in the Deputy Minister’s Presentation were, amongst other:
A brief background on the 7 point Criminal Justice Review Plan, in particular, point 6 of the plan, which is the need to urgently strengthen two pivotal aspects of SA’s crime fighting capacity, namely the storage and use of fingerprinting and DNA evidence;
The need to urgently promote legislation;
The present legal position;
The Office of the Criminal Justice System Review’s (OCJSR) findings regarding fingerprints and DNA evidence;
Recommendations posed by the OCJSR to rectify the unacceptably high crime rate in SA;
A summary of the new Bill;
The Benefits of strengthening the forensic crime fighting capacity of the SAPS by the enhancement of the DNA Database as proposed by the new Bill;
An Implementation Plan, including a business plan and costing for the project.

In conclusion, the DM of Justice stated the Bill had been drafted to:
Provide for the expansion of the SAPS’s powers to take and retain fingerprint and other biometric materials, especially DNA samples;
Provide for the establishment, administration and use of a DNA database as a criminal intelligence tool.
(Note: a full transcript of the Deputy Minister’s Presentation can be found on the Parliamentary Monitoring Group’s website www.pmg.org.za )

Following the DM of Justice’s presentation, the Ad Hoc PC reconvened on the 27 January 2009 to discuss the issues raised in the Bill. The parliamentary research unit provided input about certain aspects of the Bill.

On Tuesday 3 February 2009, submissions from the public were invited to be heard by the AD Hoc PC. These included presentations by:
The DNA Project
The National Prosecuting Authority
Business Against Crime
The SA Human Rights Commission
POPCRU

All the above groups’ presentations, except that of POPCRU, were in support of the new Bill. POPCRU’s objection was concerning the possible contracting by the Forensic Sate Lab. of private labs, to assist with the processing of reference samples. POPCRU’s full submission as well as the submissions listed in 1-5 above can be found on www.pmg.org.za

In response to POPCRU’s objection, the following short explanatory note on section 15n(3) of the bill was issued by the State Legal Advisors, clarifying the envisaged role to be played by privately operated forensic science laboratories:

Crime scene samples:
The DNA analysis performed on crime scene samples to derive a DNA profile is a more difficult and costly process than the process followed to derive a DNA profile from a sample taken from a person in terms of the Bill.
Only SAPS will deal with crime scene samples, the storage as well as the analysis thereof.
The backlog within the Division: CRC&FSS of the SAPS refer only to crime scene samples which take longer to analyze to get a DNA profile than samples taken from a person.
SAPS currently deal with crime scene samples and will in future also be the only body dealing with crime scene samples.

Reference samples (samples taken under section 36B of the Bill):
Non-intimate samples will be collected by police officials and will be sent to the Division: CRC&FSS.
The development of a DNA profile from a non-intimate sample through DNA analysis is a straightforward and easy process in comparison with DNA analysis of a crime scene sample collected at a crime scene. In other words, the backlog of the Division refers currently to crime scene samples, which arrive at the Laboratory in the condition as collected at a crime scene and the process of development of a DNA profile is more intricate than developing a DNA profile from the blood collected through a blood finger prick (non-intimate sample).
The purpose of section 15N(3) of Bill is to allow the SAPS to subcontract the DNA analysis of non-intimate samples to derive a DNA profile to populate the DNA Database. This is intended as an interim measure to allow the Database to be functional as soon as possible. The privately operated forensic science laboratories will only analyse the samples to derive a DNA profile there from and will then hand the DNA profile and the sample (if anything is left after analysis) to the SAPS. It is the SAPS which will load the DNA profile onto the Database and which will store the sample and it is the SAPS which will be paying the laboratories for the development of such samples and it is the SAPS which will, first, send the samples collected by police officials to such contracted laboratories.
The privately operated laboratories will have no access to the Database and will not be allowed to store anything. The SAPS and specifically the Division responsible for the criminal record centre and the Forensic Science Lab. is the owner of the database and are the only people who can do searches against the database.
The privately operated laboratories will only conduct DNA analysis of non-intimate samples whilst the SAPS is in the process of establishing the DNA Database, which process the SAPS has determined will take approximately five years.
In the meantime, the SAPS will be building its capacity with regard to crime scene samples and other reference samples.
In subcontracting with privately operated laboratories it will the SAPS which will prescribe quality, standards and the format in which such information should be provided to the SAPS.
From an initial inquiry, as part of the budgeting of the Bill, four privately operated forensic science laboratories in South Africa, which meet the quality control criteria for performing such work, have indicated that they will tender for such work and that they can at the moment process approximately 600,000 samples a year, and could expand, at a cost of approximately R250-R300 per sample.
In summary about R2billion has been budgeted for the population of the Database through private laboratories of reference samples, over a five year period. While about R3billion has been budgeted, over the same five year period, to build crime scene and reference sample capacity within the SAPS. A further, approximately, R2.5billion has been budgeted for the expansion of the fingerprint database of the SAPS and the linking thereof with other databases.

3. To make it clear that privately operated forensic science laboratories, if contracted thereto by the state, may only develop DNA profiles from non-intimate samples for the purpose of populating the Reference Index and no other work in this regard we propose amending section 15N to read as follows:

Any privately operated forensic science laboratory that performs [any] DNA analysis of non-intimate samples, for the purposes of developing DNA profiles, to be loaded on the Reference Index by the Division: Criminal Record and Forensic Science Services within the South African Police Service [this Chapter], pursuant to a contract with the State, must comply with the quality assurance standards developed in accordance with subsection (1) and any other requirements, such as confidentiality requirements, specified by the National Commissioner or his or her delegate.”

Meeting of the Ad Hoc PC on 11 February 2009

The Ad Hoc PC reconvened on the 11 February 2009 and was taken through the amendments captured in a working draft of the Bill created after the Department had responded to the comments submitted at the public hearings held on the 3 February 2009. One of the major amendments was the removal of the use of the wording “authorised persons” from all the provisions of the Bill dealing with the delegation powers of the National Commissioner and those specifying certain duties and responsibilities concerning the Division: Criminal Record and Forensic Science Service within the SAPS.

A large part of the amendments were also concerned with the consequential amendments resulting from the inclusion of certain legitimate government objectives such as the identification of missing persons; the identification of unidentified human remains and the identification of an alleged offender. A number of the suggestions put forward by commentators had been incorporated into the Bill. For instance, the suggestion by SABRIC to criminalise any abuse of prints and samples had been incorporated in the provisions of section 36B. The SAPS had also indicated to the committee that the retention of samples presented a number of challenges considering the storage requirements and requested that this be made optional as opposed to a mandatory requirement.

Another request put forward by the SAPS for the insertion of section 15B (3) allowing the use of a biometric device was set aside for more information to be gathered before the committee could accept it. Important changes were also effected regarding the development of a quality management system and the issuing of national instructions relating to the collection, storage and use of DNA evidence. The provisions concerned with these issues will require the National Commissioner to adhere to three-month period within which to have implemented both the national instructions and a quality management after commencement of the legislation. The committee invited the SAPS to table its implementation plan before deliberations could continue on the bill.

The Implementation Plan proposed by the OCJSR

On the 18 February 2009, the AD Hoc PC requested the National Commissioner of the Forensic Science Lab to present an implementation plan to them regarding how the SAPS would address the capacity issue that the Bill would impose on the FSL. Unfortunately, the Div. Commissioner was not available on the day he was requested to present the implementation plan and the Chairperson (Ms Sotyu) stated that the parliamentary process had not yet been completed, and without a proper implementation plan in place, she was not prepared to rush the Bill through parliament.

A representative of the OCJSR, was present on the 18 February 2009 to present to the Ad Hoc PC on the implementation plan which they had prepared in conjunction with the drafting of the Bill, but the Chairperson of the Ad Hoc PC was not prepared to allow the OCJSR to present its plan inthe absence of the Divisional Commissioner.
The implementation plan that would have been presented, had it been allowed, covered all the provisions of the Bill which would take place over time, through a phased approach which was formulated by the office of the Criminal Justice System Review. The “phased plan” was drawn up for a projected five year period, which plan has been supported by the National Treasury.

When will the Bill be passed?

The Ad Hoc Portfolio Committee on the Criminal Law (Forensic Procedures) Amendment Bill have been notified to convene on the 23 March 2009 for a formal consideration on the Committee Report which the Chairperson has completed in respect of the new Bill.