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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
1. 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
2. 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photographic images and body-prints - Samples of accused people retained for five years even if charges against when withdrawn or they are acquitted.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 Volunteers - Consent cannot be withdrawn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
1. 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
3. Retention of DNA samples
- USA: Depends of the State.
- UK: Indefinite retention.• Marper judgment
- EU States: No or limited retention
- Canada: No retention
4. 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
COMPARATIVE ANALYSIS
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
.
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.
9. 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.
COMPARATIVE ANALYSIS
16
.
• In summary the Committee may consider the following issues:
1. the constitutionality of the Bill2. the implementation of the Bill3. the cost implications of the Bill.
CONCLUSION