The Need for DNA Legislation in South Africa Vanessa Lynch Founder & Executive Director of The DNA Project 12 June 2013 Presentation to the Portfolio Committee on Police Criminal Law (Forensic Procedures) Amendment Bill B9-2013
LOBBYING FOR DNA LEGISLATION Specialised Forensic DNA Hons. Course DNA Awareness: First on Crime Scene Responders & General Public Innovative Interventions to protect crime scene evidence Train the Trainer Programs for DNA Awareness Media Awareness The DNA Project s Objectives 2
The need for legislation The single most important factor contributing to an effective DNA database is the legislation describing the creation of the database and its legal use. Even when there is an excellent forensic laboratory infrastructure, ineffective database legislation can reduce the potential of a Forensic DNA Database. It is the quality of DNA database laws that make DNA an effective investigative tool. The Criminal Procedure Act is inadequate & outdated - it is the only legislative source which attempts to regulate DNA profiling in SA but was drafted long before the advent of DNA profiling - yet remains the legislative source for the current gathering of DNA evidence and retention of DNA profiles and samples in SA. 3
Current Use of DNA Database: Matching evidence to known suspect Crime scene evidence Suspect Prosecutorial Database No match Match Suspect innocent Confirms suspect was at the crime scene
Intelligent use of DNA Database: Matching evidence to DNA database Crime scene evidence Na<onal DNA Database Criminal Intelligence Database Match Match Person previously arrested or convicted Same criminal at many crime scenes
Current laws x xx Key Provisions DNA Bill B9-2013 categories of crimes separation of indices x x x x x buccal sample taking controlled (method + environment + police officers) destruction of reference samples retention frameworks for different categories of DNA profiles retrospective - offender profiles strict penalties for misuse of information creation of Oversight Board 6
International Best Practice DNA taken from arrestees & convicted offenders Buccal samples taken by police Convicted Offender Profiles retained indefinitely Convicted offender database allowed retrospectively DNA database given legal status to retain profiles for criminal investigation only Custodian of the Database Fingerprint and DNA legislation aligned 7
Violence is understood as a language, a message in South Africa; violence is simply another means of communication. * Food for thought... research findings of UNISA academic Dr Rudolph Zinn** One in three house robbers has murdered someone and, on average, such criminals carry out 104 crimes over 7½ years before the law catches up with them Dr Zinn interviewed a group of convicted house robbers in jail. He found that the average house robber is in his 20s, a young man who is nevertheless a very experienced criminal who has committed over 100 crimes by the time he is arrested. He often uses extreme violence, and will harm his victims if they put the robbery at risk. A staggering 97% of all robbers are armed and on average there are four members in an armed robbery gang. He found that women were more often tortured or hurt during house robberies. The conviction rate for house robberies in South Africa is only 7.67%. In the USA it is 53% *The International, Christopher Davis March 2013 **DrRudolph Zinn, Unisa's School of Criminal Justice, as reported in June 2009 8
Recommended Retention Framework for NFDD Convicted Offender profiles: indefinitely Arrestee profiles: minimum 6 years(12 if re-arrested during 6 year period), removal by application 9
Convicted offender profiles Retention period No legal requirement Country Austria, Barbados, Brazil, Chile, South Korea, UK Northern Ireland, USA Indefinitely Canada, Cyprus, Germany (murder and sex crimes), New Zealand, Spain, United Kingdom After death of person/ 70-100 years of age Belgium, Denmark, Estonia, Finland, Iceland, Lithuania, Norway, Russia, Singapore, Slovakia If conviction retracted Australia, Poland, Taiwan 10 80 years after sentence served France, Hungary, Netherlands, Sweden, Switzerland
NFDD Inclusion Criteria The case of Chester Turner Don t link to seriousness of offence Don t restrict time period of arrestee profiles Ensure DNA profiles taken at time of arrest Comparative search against crime scene profiles Investigative lead Not tantamount to a criminal record Arrested 21 times over 15 years without being convicted of a crime that would allow DNA profile to be uploaded onto a Database. Finally convicted of rape: matched 15 raped and murdered women. First murder occurred 2 months after first arrest. If DNA profile had been taken at first arrest, and matched to murder and rape of previous victim, 14 women would've been saved. Exonerated man wrongly convicted who spent 11 years in jail for crime he didn t commit 11
Let s compare profiles... Case Study 1 - country with developed database: 5,000 stranger rapes occur in the United Kingdom with no evidence except for DNA at crime scene >60% = UK hit rate. This means that 3,000 of these cases can be linked and potentially solved with one simple DNA test. Case Study 2 - non-database country: 5,000 Stranger rapes occur in non-database country with no evidence except for DNA at crime scene No NFDD = means that none of the cases can be linked or potentially solved. 12
evidentiary value of DNA It may not be the silver bullet (nothing is): but we cannot discount the huge evidentiary value of DNA evidence in S o u t h A f r i c a, especially its use in c h i l d r a p e a n d s e x u a l o ff e n c e cases. 13
Quis custodiet ipsos custodes? Who is going to guard the guardians? CUSTODIAN OF THE DNA DATABASE NATIONAL FORENSIC oversight - ethics OVERSIGHT BOARD: Dual Functionality oversight - implementation composition & appointment of chair 14
A COMPARATIVE STUDY: DNA Oversight Board: UK DNA Database Legislation enacted DNA Oversight Board Established Ring fenced funding for forensic staff, vehicles and equipment DNA awareness training implemented police force, justice and general public Increase in volume crimes (less serious) visited resulted in increase of DNA retrieved from crime scenes Increase in no. of crime scene profiles loaded onto database Regular monitoring of use of database in crime detection rates Investment in IT infrastructure of database Electronic delivery of match reports to Investigator s
BENEFITS REALISED IN UK: AFTER 5 YEARS REPORT BACK ON DNA DATABASE EXPANSION PROGRAMME DNA detections quadrupled over a 5 year period 75% increase in number of suspect to crime scene matches Enhanced capacity to detect and solve serious crimes Support of collection of all types of forensic material Links to other crimes multiple matches Exoneration of innocent people Solution of cold cases Scene-to-scene matches identified patterns of criminal behaviour Reduction in DNA processing times and costs Reduction in crime levels
open sourced software used to run criminal justice DNA databases also provide training & help-desk for ongoing support CODIS Combined DNA Index System associated cost implications minimal recommended in Overseas Study report & DNA Policy Document 17
public Forensic Awareness & Training crime scene examiner first on crime scene responder NFOB NI s SOP s authorised officer officers of the court 18
Training Material: Posters 19
Training Material: Information Booklets 20
Crime Scene Preservation: DNA Awareness Campaign 21
DNA Awareness Campaign: Media 22
How can this be achieved? 5 steps...5 years 1. Policy-makers must promulgate legislation that will provide a basic legal structure and Oversight Body to oversee a NFDD and uses DNA profiling for criminal intelligence to ensure the continued and regulated use of DNA profiling in the criminal justice system. 2. Crime scene awareness and training programmes 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. 3. Officers of the courts must be educated in how DNA evidence technology works to corroborate a case against a suspect or exonerate a suspect quickly, thereby decreasing delays in court. [international studies show that >80% of suspects faced with DNA evidence, plead guilty] 4. Police officers must be trained how to obtain DNA buccal samples from arrestees. 5. Continue to increase and improve capacity of FSL. 23
for more information please visit www. dnaproject.co.za or email us on info@dnaproject.co.za or call us on 021 418 0647 24