CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL

2. CRIMINAL LAW (FORENSIC PROCEDURES) AMENDMENT BILL 3 February 2009

3. Overview • Reasons why the Bill is supported • Suggestions related to additional inclusions • Suggestions related to implementation

4. Background to BACSA • BACSA is a not-for-profit (Section 21) company formed in 1996 following a request by Government through then President Mandela • BACSA has since its establishment supported Government in the fight against crime • BACSA represents a large portion of the Business sector with its Board comprising of business leaders from industry, commerce and the office bearers from BUSA, BLSA and the BBWG • BACSA is funded by the business community and serves as the conduit through which business support is mobilised to support government • BACSA has developed a close relationship with government in the fight against crime built on a foundation of mutual trust and respect

5. Introduction • The need to strengthen forensic investigative powers of the South African Police is long overdue. One of the key factors that hinder efficient and effective investigations by the SAPS, is the constraints it faces as a result of its inability to access other databases outside of the SAPS AFIS system • The amendments to section 36 and section 37 as set out in Bill seems to be the answer to rectifying this shortfall

6. Introduction • BACSA on behalf of its constituency base supports the amendments especially in light of the fact that it gives powers to all police officials to collect fingerprints and other forensic evidence to further criminal investigations to populate and access the National DNA database of South Africa

7. Introduction • The long awaited access to the databases of the Department of Home Affairs and the Department of Transport for all police officials in the course of their duties will create positive avenues for investigation and identification of suspects • This has been one of BACSA’s ongoing initiatives that has been built into various projects undertaken by the organization in its attempt to design effective and efficient strategies to combat and prevent crime • BACSA, therefore supports the so-called “speculative searches” wholeheartedly

8. Recommendations • Morpho touch: • The amendments should include legislative endorsement of the morpho touch technique of comparing fingerprints as one of the accepted mechanisms that may be used by police officials in attempting to match fingerprints found on crime scenes and mortal remains for identification purposes

9. Recommendations • Sections 36B(8), 36C(4) and 37(8) is supported but makes the following proposal in so far as the limited period of five years is concerned. BACSA proposes that this period of retention of such forensic evidence/data should extend beyond 5 years for the following reasons: • Many cases remain under investigation for a period longer than 5 years • In many instances criminal cases linked to organised crime do not get resolved/finalized upon the conviction or acquittal of an individual

10. Recommendations • There are various international standards in this regard, and BACSA proposes the following as possible considerations: • That the period for which the evidence may be kept be indefinite or until a person whose fingerprints or DNA have been taken makes an application to a magistrate for his records to be destroyed after a period of five years. This would afford the prosecution and the SAPS an opportunity to make submissions in favor of or against the application in light of the nature of each case; or • The period for which evidence may be kept should be extended to 20 years

11. Recommendations • Or consideration to international practices • France - Samples retained for 40 years after sentence or until individual reaches age limit (80 years old). Suspect sample is returned to the magistrate or police officer in charge and is kept like any other piece of evidence. If the suspect is convicted, sample is forwarded to Gendarmerie storage facility for preservation(SCPPB) • Austria - Sample is retained.Suspect must apply for profile removal and sample destruction if acquitted.

12. Recommendations • BACSA highly recommends the fingerprinting and photographing of ALL foreigners entering the country. As controversial as it may sound, there is merit in doing this: • Not all suspects/criminals are RSA citizens • It is an excellent security measure and would possibly have a crime deterrent effect on any foreigner entering the country with the intention of committing crime • Foreigners are also victims of crime in South Africa. For the purpose of this Bill it is vital to capture their finger prints and photographs for identification of mortal remains should a deceased be unidentified due to lack of identification documents • Countries such as Japan and the USA have embarked on such measures in respect to foreigners entering the country purely for security purposes and this emanated from the 9/11 attacks in the USA to filter terrorists. Similarly the benefit for South Africa would be the filtering of many organized syndicates that operate from and to South Africa

13. Recommendation • It is strongly recommended that medical practitioners should be granted the authority to take an intimate sample (blood or any other bodily fluids) of any child (under 18 of age) who is admitted to hospital for medical attention or treatment and who is suspected to have been a victim of crime without a request first being made by a police official to the medical practitioner • The reasoning is that many complainants/victims do not approach the police within sufficient time to preserve evidence such as bodily fluids (semen) which may result in a case not being successfully prosecuted

14. Implementation • The location of this function naturally fits with the SAPS Forensic Science Laboratory • The implementation of the Bill would naturally require significant capacity expansion in respect of both human and other resources that would entail: • A detailed costing exercise • The development of business systems re-engineering plans • The appointment and training of additional personnel • Retention strategies adopted to retain scarce skills within the forensic science field

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