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CRIMINAL LAW (FORENSIC PROCEDURES)

AMENDMENT BILL [B 2-2009]:

ISSUES FOR CONSIDERATION AND

COMPARATIVE ANALYSIS

6 October 2009

Sueanne S. Isaac

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PART 1:

ISSUES FOR CONSIDERATION

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ISSUES FOR CONSIDERATION

1. Constitutional Issues

• Possible infringement of rights including

- Equality (s9)

- Privacy (s14)

- Human Dignity (s10)

- Bodily Integrity (s12)

- Children (s28)

- Accused (s35)

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ISSUES FOR CONSIDERATION

2. Difference between finger-prints and DNA samples

- finger-print two-dimensional image on raised portion of epidermis

- DNA obtained from blood or tissue sample

• Fingerprint

• DNA Structure

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ISSUES FOR CONSIDERATION

3. The taking of finger-print and DNA samples for every offence - No differentiation between serious and minor offences.

4. Retention for five years of finger-prints, DNA samples, DNA profiles, photographic images and body-prints - Samples of accused people retained for five years even if charges against when withdrawn or they are acquitted.

5. Retention of finger-prints, DNA samples, DNA profiles, photographic images and body-prints of arrested people - DNA samples and finger-prints are taken from all arrested people.

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ISSUES FOR CONSIDERATION

6. Destruction of finger-prints, DNA samples and profiles of a person who was not convicted of a crime - The information is destroyed after 5 years.

7. Mandatory retention of DNA samples - Capacity issues

8. Child Offenders - Treated the same as adults. - Child Justice Act

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ISSUES FOR CONSIDERATION

9. Body-prints - Definition restrictive?

10. Using force to obtain evidence - Use of force against all people and not just accused people

11. Volunteers - Consent cannot be withdrawn

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ISSUES FOR CONSIDERATION

12. Expungement - No expungement procedure provided in the Bill.

13. Matches of the DNA Database vs. actual convictions - A match of a crime scene sample with a profile on the database does not mean that the perpetrator has been identified.

14. Extending the Database to every citizen - Constitutional and capacity issues.

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ISSUES FOR CONSIDERATION

15. Implementation Plan - Capacity of SAPS to deal with the duties imposed by the Bill.

16. Cost Implications- Is the Bill sufficiently funded?

17. Training of SAPS officials- Training plan

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ISSUES FOR CONSIDERATION

18. Regulations to be approved by Parliament vs. National Instructions issued by the National Commissioner - Should there be regulations which are approved by Parliament?

19. Sharing of information with foreign law enforcement agencies- Protection of information.

20. Safeguards and quality assurance- Independent advisory panel?

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PART 2:

COMPARATIVE ANALYSIS

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COMPARATIVE ANALYSIS

1. From whom must a sample be taken?- UK: Arrested and convicted people- USA: Arrested and convicted people- Canada: On obtaining a DNA warrant

2. The retention of DNA profiles from a convicted person- UK: Profiles of all convicted people stored indefinitely.- USA: Profiles people convicted of federal crimes.

47 States store profiles of offenders convicted of felonies.

37 States store profiles of offenders convicted of certain sex crime misdemeanours

4 States for wider list of misdemeanours.

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3. Retention of DNA samples

- USA: Depends of the State.

- UK: Indefinite retention.• Marper judgment

- EU States: No or limited retention

- Canada: No retention

4. Retention of DNA profiles of a person who was not convicted of an offence

- UK: Indefinite retention of arrestee profiles

- USA: Retention with expungement clause

- EU States: No or limited retention

COMPARATIVE ANALYSIS

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COMPARATIVE ANALYSIS

5. Children

- USA: 32 States retain profiles of juvenile convicts

- UK: Profiles and samples retained indefinitely

6. Expungement of Records

- USA: Detailed expungement procedure at federal level and 38

states have expungement procedure

- UK: No expungement. Considering automatic destruction of profiles

after period of time and early deletion of records in specified cases.

(eg. unlawful arrest and no offence committed)

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7. Volunteers - UK: Indefinite retention. Proposal not to include volunteers on the database. - Canada: Immediate destruction if person excluded as a suspect

8. Foreign access to DNA profiles - UK: Concerns over data protection. Recommended strict guidelines. - EU: Stringent privacy regulations.

9. DNA Databanks - USA: DNA databases at local, state and federal level. NDIS is the federal database run by the FBI using CODIS software programme.

- Canada: Has a crime scene index and convicted offenders index.

COMPARATIVE ANALYSIS

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• In summary the Committee may consider the following issues:

1. the constitutionality of the Bill2. the implementation of the Bill3. the cost implications of the Bill.

CONCLUSION