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CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL [B 2-2009]: ISSUES FOR CONSIDERATION AND

CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL [B 2-2009]: ISSUES FOR CONSIDERATION AND COMPARATIVE ANALYSIS. 6 October 2009 Sueanne S. Isaac. PART 1: ISSUES FOR CONSIDERATION. ISSUES FOR CONSIDERATION. Constitutional Issues Possible infringement of rights including

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CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL [B 2-2009]: ISSUES FOR CONSIDERATION AND

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  1. CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL [B 2-2009]: ISSUES FOR CONSIDERATION AND COMPARATIVE ANALYSIS 6 October 2009 Sueanne S. Isaac

  2. PART 1: ISSUES FOR CONSIDERATION

  3. ISSUES FOR CONSIDERATION • Constitutional Issues • Possible infringement of rights including - Equality (s9) - Privacy (s14) - Human Dignity (s10) - Bodily Integrity (s12) - Children (s28) - Accused (s35)

  4. ISSUES FOR CONSIDERATION • 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

  5. 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photographic images and body-prints - Samples of accused people retained for five years even if charges against when withdrawn or they are acquitted. 5.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.

  6. 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

  7. 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 Volunteers - Consent cannot be withdrawn

  8. 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.

  9. 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

  10. 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?

  11. PART 2: COMPARATIVE ANALYSIS

  12. COMPARATIVE ANALYSIS • 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.

  13. COMPARATIVE ANALYSIS 3. Retention of DNA samples - USA: Depends of the State. - UK: Indefinite retention. • Marper judgment - EU States: No or limited retention - Canada: No retention • 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

  14. 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)

  15. COMPARATIVE ANALYSIS • 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. • 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. .

  16. CONCLUSION • In summary the Committee may consider the following issues: • 1. the constitutionality of the Bill • 2. the implementation of the Bill • 3. the cost implications of the Bill. .

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