Criminal Law (Forensic Procedures) Amendment Bill [B2-2009]: briefing & Implementation Plan

Meeting report

Departmental Briefing on the Criminal Law (Forensic Procedures) Amendment Bill
Background and Challenges
Dr Tertius Geldenhuys, Assistant Commissioner, Legal Services, SAPS, gave a bird’s eye view of the events leading to the drafting of the Bill under consideration. At present, section 37 of the Criminal Procedure Act (CPA) regulated the taking of fingerprints and blood samples from arrested persons for purposes of prosecuting crime. The Act further stated that samples which were obtained must be destroyed if a person was acquitted or no prosecution was instituted against the individual concerned. In its current form, Section 37 was inadequate as it made no mention of the collection of DNA evidence and did not make the taking of fingerprints compulsory. Another challenge was that at present, the Police could source only one fingerprint database - the Automated Fingerprint Information System (AFIS) out of three major fingerprint databases in Country. Other databases included the Home Affairs National Identification System (HANIS) and the electronic National Traffic Information System (E-NATIS), which was controlled by the Department of Transport. The AFIS had over six million prints in its database, the HANIS system had over 31 million prints of South African citizens, 500 000 prints from foreigner and a further 2 million prints that must still be uploaded into the system. The E-NATIS system on the other hand had over 7 million thumb prints of individuals in its database.

The major challenge was that existing legislation did not permit SAPS to access the HANIS or the E-NATIS systems, which if it did would allow SAPS to have access to over 40 million prints on which it could match samples taken from crime scenes and increase its chances of identifying criminals who had committed crimes. Current figures showed that the AFIS database had over 620 060 unknown fingerprints, something which could be drastically improved if SAPS had access to HANIS and E-NATIS databases. DNA powered investigations have shown great success as a tool for fighting crime in other countries. It was revealed that in the United Kingdom, with the aid of DNA, the likelihood of matching a suspect to a sample obtained from the crime scene stood at 52.2% compared to 0.02% likelihood in South Africa. Another challenge created by legislation, as revealed in the presentation was that the Firearms Control Act and the Explosives Act did not permit fingerprints taken in terms of those Acts to be loaded into the AFIS system. The unfortunate end result of all of these challenges was that fingerprints lifted at crime scenes could only be checked against a limited number of fingerprints in the AFIS system.

Recommendations
If passed into law, the Bill would directly address some of those challenges that have been identified. It would specifically provide for the collection of DNA samples and fingerprints. It would also regulate how such samples may be taken, stored and administered. One of the major inroads that the Bill would also look to address would be to link SAPS database with other databases in government, such as HANIS and the E-NATIS. There would also be provisions for the respect of individual’s privacy in the process of obtaining these kinds of samples, for example provisions which differentiate the taking of non-intimate samples by SAPS and intimate samples to be collected by qualified medical professionals. Also of critical importance was that the Bill aimed to achieve all these objectives while adhering to strict safeguards and penalties to ensure that the forensic material collected and stored could only be used for purposes related to the detection, investigation or prosecution of crime. The National database which the Bill aimed to create would be subdivided into various categories called indices. There would be five indices: the crime scene index which would contain DNA profiles from bodily substances found at crimes scenes, the reference index which would contain DNA profiles loaded from samples taken from suspects, the convicted offender index would contain profiles of DNA profiles loaded from samples of convicted persons. There will also be a volunteer index which would contain DNA profiles loaded from samples given by volunteers. Lastly there will be an index containing samples of personnel and contractors working closely with SAPS.

The Bill would provide for speculative searches by authorised persons for the purposes of obtaining these samples even without a warrant. The Bill would also make it compulsory the taking of fingerprints and non-intimate samples by police officials from certain categories of accused and convicted persons. It would also provide for the retention of such forensic material for a longer period than was the case at present. That meant that the samples would no longer be destroyed with immediate effect as stipulated in the CPA for persons not convicted. The Bill also made provisions that samples taken would be retained and stored by SAPS division: Criminal Record and Forensic Science Services, and stipulates penalties for any misuse of the samples. On the quality assurance aspect, the Bill would require the National Commissioner of Police to develop standards for quality assurance, including standards for testing the proficiency of the laboratories.

Presentation on the Implementation of the Bill
Divisional Commissioner Piet Du Toit, Criminal Records and Forensic Science Services (CR & FSS), SAPS, outlined the implementation plan of the Bill. The implementation of the Bill would require significant capacity expansion in respect of both human and other resources. This would require massive amounts of funding to drive the process. Additional personnel would have to be trained and retention strategies developed. The Bill had been provisionally costed and a business plan had been developed to map the incremental implementation of the Bill. Consultations with the National Treasury were at an advanced stage.

Treasury had so far allocated a lump sum towards the implementation of the Bill, however this amount needed to be shared with other departments and negotiations were underway on how to allocate this amount equitably. It was also said that an amount of R200 million was at the CR & FSS Division’s disposal at present. From this amount, the Commissioner said they were in the process of using R135 million on upgrading the fingerprint systems to create capacity for the increased anticipation of fingerprints to work with. A vigorous recruitment exercise was also said to be underway, so far over 300 personnel (with 500 being the target) deployed to work in the crime scene department. A further R15 million had already been set aside to purchase fleet of vehicles, with an additional R3million allocated for the purchase of crime scene equipment. All the equipment that needed to be acquired had already been ordered and paid for in full.

The Commissioner said his department was working on a draft implementation plan since they had no idea what the Bill would eventually look like when it was finally passed into law. They had decided that they were going to implement it in phases, meaning high crime areas like Gauteng would start the process and later it would be rolled over to other provinces like Western Cape in a systematic manner. The IT department would be consulted extensively to ensure that capacity in that regard was not an issue. To that end, a substantial amount from the money allocated by the Treasury would be channelled towards the upgrade of IT infrastructure. The presentation also revealed that a gap analysis had been done to determine exactly what needed to be addressed. This was already yielding results such as the need to invest in accommodation, space and technological equipment to cope with the number of arrests and samples that would need to be processed. Closely linked to this would be the training of new staff. It was also said that the legal services department was in the process of compiling the national instructions draft, which was a requirement in terms of the Bill.

Discussion
Ms A Van Wyk (ANC) found it disappointing that the presentations mentioned very little about the implementation plan of the Department. She accused the Department of being ill-prepared and not taking the Committee seriously.

Mr M George (COPE) referred to the R200 million which was mentioned. He said the information given did not address the issues that they wanted to know about, for example, how much did they need? He also slammed Commissioner Du Toit for emphasising on things that were not really necessary to the Committee members. Members had expected that they would briefed on issues such as the total costs of hiring and training additional personnel, the figures of how many personnel would need to be trained and how long such training would last. He said that the presentations, especially the one given by Commissioner Du Toit was not convincing at all.

The Chairperson also echoed the sentiments of the other Members. She said after the presentations, her situation was worse off than it was before the presentations were made. She went further to say they never really expected much from the department, but just an objective estimate of how much it would cost to implement the Bill. This information was important because it would be futile to process a Bill that will fail to be implemented. The information that was given by the department was far from convincing.
           
Mr G Schneemann said the presentation about the background and the Bill itself was too shallow. He reminded the Department that this was the fourth parliament and not the third, for it may well be that when Dr Geldenhuys was presenting, he thought he was refreshing the memories of members since this Bill was first tabled before the Committee in the third parliament. Mr Schneemann also reminded the Department that theirs was not to rubber stamp decisions but to engage and therefore if the Department came with the view that they were rubber stamps, then they were clearly wrong. Lastly, he felt the Department needed to go back and re-work on the presentation because they said anything about real issues at hand.

Ms Van Wyk said they need to know for instance how much each phase would cost since Commissioner Du Toit had suggested they were going to roll out the implementation in phases.

Mr Schneemann said he was aware that police officials did not have enough space to set up their own offices, but the Department was talking about increasing capacity to accommodate more forensic materials. He wanted to know where these would be stored and if new buildings would have to be built. He also asked how much it would cost and how soon it would be completed.

Ms D Schafer (DA) noted that there was no detailed information on possible costs to the Department, nor on the amount of staff required or training for the successful implementation of the Bill.

Ms A Mocumi suggested that it would be best to refer the Department back to the drawing board so that it could prepare a proper implementation plan for the Committee because what they had just presented was simply ‘not up to scratch’ and a waste of time.

The Chairperson was mainly disappointed by the fact that this was not the first time that the Department come unprepared. In future, officials who appeared before the Committee unprepared must be made to bear the costs (of their travel expenses) and not the Department. The Chairperson then advised the Department that she was adjourning the meeting and would like the Department to inform the Committee as to when they would present a proper implementation plan.

The meeting was adjourned