c. hancock legislation presentation march 2014

Dr. Carolyn Hancock

Salient Provisions of the new DNA Act

6 March 2014

We have a National FSL Infrastructure

We are using DNA evidence in court (sometimes)

SO, WHY DO WE NEED DNA LAWS?

The current repository of DNA profiles needs to be expanded by populating it with more DNA profiles from

different categories of people in an effort to utilise the DNA Database as a criminal intelligence tool.

A pertinent question.....

Country

No. of Reference

Profiles

No. of Crime Scene Profiles

Total No. of Profiles on Database

USA

12000000

500000

12500000

UK

7100000

420000

7520000

China

23000000

500000

23500000

Australia

500000

210000

710000

France

2100000

200000

2300000

Netherlands

158000

53000

211000

Canada

260000

81000

341000

South Africa

93000

40000

132000

International Database Size

Source: Interpol Global DNA Profiling Survey Results 2012

Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013

Establishes National Forensic DNA Database

NFDD - a regulatory framework with

severe penalties for abuse

S.15F: The objective of establishing and maintaining the NFDD is to perform comparative searches to:

(1) Serve as a criminal investigative tool in the fight against crime

(2) Identify persons who might have been involved in the commission of

offences, including those committed before the passing of the DNA

Act

(3) Prove the innocence or guilt of an accused person in the defence or prosecution of that person

(4) Exonerate a person incorrectly convicted of an offence

(5) Assist with the identification of missing persons or unidentified

human remains


mandates that reference DNA samples must be taken from arrestees & convicted

offenders* of schedule 8 offences *retrospectively

to be reviewed after 5 years

Schedule 8 offences [23 listed offences]

"Treason."Sedition."Public violence."Murder."Any offence referred to in Part I or Part II of Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002)."Culpable homicide."Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007(Act No. 32 of 2007), respectively."Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (ActNo. 32 of 2007), respectively."Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters)Amendment Act, 2007 (Act No. 32 of 2007), respectively."Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007)."Robbery."Kidnapping."Child-stealing."Assault, when a dangerous wound is inflicted."Arson."Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence."Theft, whether under the common law or a statutory provision."Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in Schedule 1, or is in such custody in respect of the offence of escaping fromlawful custody."Any offence under the Firearms Control Act, 2000 or the Explosives Act, 2003, which iswhich is punishable with imprisonment for a period of five years or longer in terms of the said Act."Convention offence or specified offence as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004)."Trafficking in persons as defined in section 1 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013)."Torture as defined in the Prevention and Combating of Torture of Persons Act, 2013 (Act No. 13 of 2013."Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule."


Bodily or buccal sample?

Bodily: intimate or buccal sample by Dr or Nurse ONLY (this may include a crime scene sample)

Buccal sample: by police or self.

Gender

Buccal samples must be taken by a person of the same gender. There is a distinction in the Act between a persons GENDER and SEX.

Self taking

Person may request to take sample themselves but this must be supervised.

Who can take samples?

Police: buccal sample only

Dr/Nurse: bodily sample (includes both intimate & buccal sample; may be a crime scene sample)

Taking of reference samples

Training police on how to take a buccal swab

Section A: Training and Competency of collection of Buccal Smears

Background to DNA and Buccal Cells

Workflow of the buccal smear collection to DNA profile search

Demonstration on procedure for use of kit in the collection of buccal smears

Approach and explanation to the suspect

Preparation of workstation

The buccal smear collection kit

Completing the paperwork accurately

Health and safety, risks and possible diseases

Collection of sample

Understanding the chain of custody

Procedure to use the kit

Re-packing, sealing and storage of the kit with buccal smear

Supply of buccal smear kits and stock control

COMPETENCY ASSESSMENT

Section B: SAPS/ Forensic Awareness

What is forensic science?

National DNA Database

DNA Forensic Awareness

Questions and Answers

Closing and Feedback session

NHLS to train 100,000 police officials over a 5 year period

Destruction of reference samples

Retention of crime scene samples

Definition & retention framework of

different types of Forensic DNA Profiles


Understanding the difference between a DNA sample and a DNA profile


Category

Retention Period

Convicted Offender Index

Indefinitely

(Child 12 months)

Arrestee Index

Within 3 years

(Child: 12 months)

Crime Scene Index

Indefinitely

Investigative Index

3 months after case finalised

Elimination Index

Indefinitely

[All new SAPS recruits]

Missing Persons & Unidentified Human Remains

When case resolved

Categories of profiles: 6 separate indexes with different retention & expungement provisions


Delivery of samples to FSL

Samples must be delivered to the FSL within 30 days of collec;on

DNA analysis of samples

Bodily & crime scene samples must be analysed

within 30 days of receipt at FSL*

Loading of DNA profiles on NFDD

DNA Proles must be loaded onto the NFDD within 30 days of receipt of sample by FSL

Destruction of samples

Bodily samples (unless they are crime scene

samples) must be destroyed within 3 months of the prole being loaded onto NFDD

Time Frames: the critical links

*unless there is a compelling reason in terms of priorities why such samples cannot be analysed and loaded within that time period

NATIONAL FORENSIC OVERSIGHT &

ETHICS BOARD

NFOEBBOARD

Dual Functionality

Quis custodiet ipsos custodes?!Who is going to guard the guardians?!

oversight -

ethics

oversight -implementation

NFOEBNATIONAL FORENSIC OVERSIGHT ETHICS

BOARD

10 MEMBERS

5 members of public with knowledge of forensic science,

human rights or ethics (nominated by public, appointed by Minister)

4 members from government - Health, Police Secretariat, Justice and Correctional Services

Chairperson - retired judge/senior advocate [deputy chair from remaining members]

Note: SA Human Rights Commission to remain independent oversight body to the NFOEB

recommendations for improvements

oversight: sample destruction, retention & expungement of profiles

implementation of legislation

complaints

sample collection

performance of FSL and NFDD

minimum quality standards

compliance with ethical & privacy issues

public accountability & transparency

review Act in 5 years

NFOEB will monitor:

Key Provisions | DNA Act1. Mandatory DNA profiling: arrestees and convicted oenders

2. Buccal sample taking controlled [method + environment + police ocers]

3. Categories of oences: schedule 8

4. Destruction of reference samples

5. Retention framework of DNA profiles: dierent for all 6 indices

6. Retrospective - convicted oender profiles

7. Penalties for any abuse of information

8. National Forensic Oversight Ethics Board

What can we expect?

What will be the value of an expanded DNA Database in SA?

We can no longer ignore the huge

evidentiary value of DNA evidence in

conjunction with a DNA Database in

South Africa- especially its use in

child rape and sexual oences cases and to reduce the high rate of

recidivism.

Can all of this be achieved in SA? DNA Act must be operational within rst year of passing legislation. 5 YEAR IMPLEMENTATION PLAN driven by Oversight Board. Crime scene awareness and training programs must be increased so that

critical evidence can be protected and collected so that fewer cases will be at risk of being jeopardised due to the mishandling of evidence.

Ocers of the courts to corroborate a case against a suspect or exonerate a suspect quickly, thereby decreasing delays in court.

82% of suspects faced with DNA evidence, plead guilty in UK .must be educated in how DNA evidence technology works to decrease delays in court.

Police ocers must be trained in how to obtain DNA samples from arrestees and convicted oenders.

Increase and improve capacity of FSL - faster turnaround times / reduce backlogs

www.dnaproject.co.za

c. hancock legislation presentation march 2014

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