22/08/2013 – ACDP hopes for Criminal Law Amendment Bill to revolutionise crime scene investigation and increase conviction rate

ACDP Parliament

Speech on the Criminal Law (FORENSIC PROCEDURES) Amendment Bill

By Steve Swart, MP

 ACDP hopes for Criminal Law Amendment Bill to revolutionise crime scene investigation and increase conviction rate

 

ACDP MP Steve Swart

“Honourable Speaker,

The ACDP welcomes and supports the Criminal Law (Forensic Procedures) Amendment Bill which has taken a long time to be finalised. It re-amends a previous amendment to the Criminal Procedure Act which currently requires a court order to obtain a DNA sample from an arrested person. According to the amendment an arrested or charged person now cannot refuse the taking of the samples and there is not the requirement of a court order. Given the exceptionally high crime rate in South Africa and the need to take additional steps to assist with the detection of perpetrators, this is clearly to be welcomed.

The new amendment also regulates how the DNA database will be managed by creating an oversight mechanism. This will obviously only be as effective as the people who actually have the oversight responsibility to ensure that Constitutional rights are preserved.

The Bill is good legislation as long it is implemented correctly and that the oversight thereof is effective and does not merely pay lip service to its responsibility.

Most democratic countries have provisions which allow law enforcement officials to obtain such samples and fingerprints to be used in solving crime; the key principle of crime investigation is to establish the truth regarding the suspected commission of a crime.

The Bill is to particularly provide for the protection of the rights of women and children in the taking of DNA samples. It adds a Schedule of offences in respect of which DNA samples must be taken; and is to establish and regulate the administration and maintenance of the National Forensic DNA Database. The Bill provides the conditions for retaining samples and the time they may be retained before being destroyed. It provides for the use of forensic DNA profiles in the investigation of crime using them in proving people’s innocence as well as guilt and will assist in identifying missing persons and unidentified human remains. The Bill provides for oversight over the National Forensic DNA Database and the handling of complaints relating to DNA samples forensic profiles.

[1] In terms of subcontracting to outside laboratories, the Bill allows the SAPS as an interim measure to subcontract the DNA analysis of non-intimate samples (a blood finger prick) in order to derive a DNA profile to populate the Database.

The ACDP notes that the [2]Human Rights Commission had balked at the legislation arguing that the mandatory taking of fingerprints and DNA samples proposed must be balanced against the right to privacy – that a person should not necessarily have a reduced expectation of privacy just by virtue of being arrested, as that would run contrary to the principle of the presumption of innocence. [3] In respect of this, in the proposed section 15Y(6) it is provided that a National Forensics Oversight Board shall monitor compliance with ethical and privacy issues with provision for the South African Human Rights Commission to be part of the Board or to participate in its proceedings allowing it to provide input to the oversight body which increases the likelihood of the Bill’s effectiveness. It is necessary to take both the Human Rights and crime prevention and resolution aspects into consideration and find a happy medium where both can benefit from this amendment.

A skills recruitment programme will have to be embarked upon,[4] and it’s expected that a major education campaign will be needed to educate the public about crime scenes; the importance of preserving fingerprint and DNA evidence and of not contaminating forensic evidence. The Bill will have the SAPS system linked to the fingerprint database of Home Affairs and the thumb-print system of the department of Transport thereby hoping to enable the police not only to solve past, present and future crimes but the linking of perpetrators to multiple crime scenes should also be greatly increased.

The Bill allows for the powers of SAPS to be extended enabling this.

Public opinion has been expressed in at least one public petition about this Bill purporting to ‘send [5]a strong message to Government to pass legislation that enables law enforcers to collect DNA from arrestees and convicted offenders so we can ‘catch’ criminals sooner.’ They perceive that if passed, this law will revolutionise crime scene investigation in South Africa in line with best international practice and increase the number of convictions.

The ACDP earnestly hopes this will be the case; with today’s access to IT, juxtaposed with the [6]5,900 crimes reported daily and over 161 thousand people murdered in South Africa since 2004, daily 43 people murdered, on average, in South Africa – this Bill is surely overdue.

-ENDS-

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