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Establishment and Administration of a National DNA Database in South Africa

This policy outlines the establishment and administration of a national DNA database in South Africa, addressing key areas such as accreditation, custodianship, indices and categories of profiles, size of the database, and authorization for reference sample collection.

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Establishment and Administration of a National DNA Database in South Africa

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  1. CIVILIAN SECRETARIAT FOR POLICE POLICING POLICY ON THE ESTABLISHMENT & ADMINISTRATION OF A NATIONAL DNA DATABASE 13 June 2012

  2. CONTENTS • Background • Introduction • Methodology • Current practice • Policy considerations • Conclusion

  3. BACKGROUND • The establishment of a national DNA database comes out of the CJS Revamp process approved by Cabinet • Legislation was drafted and presented to the Portfolio Committee (PC); Criminal Procedures (Forensic) Amendment Bill • The PC felt that more work was required before the DNA database be established in legislation • The following presentation deals with the issues that have arisen regarding implementation of a national DNA database

  4. INTRODUCTION • Many countries acknowledge the need and importance of National DNA databases and the benefits this brings to law enforcement • DNA is not the only source of evidence & a database cannot replace efficient police investigations • In establishing a database for South Africa it is imperative to take into account people’s Constitutional Rights as well as the practicalities involved in implementing a database

  5. METHODOLOGY • International and legislative review • International scan (USA, Netherlands, Canada, UK and Brazil) • Relevant Legislation • Portfolio Committee on Police Study Tour report • Interviews • DNA Project • UWC Dept of Criminal Procedure • SA Society for Human Genetics • State Law Advisors • SAPS FSS & FSL

  6. CURRENT PRACTICE • DNA repository presently administered by SAPS Forensic Science Service • Once a sample is analysed, a DNA profile is generated & housed in the repository • Profiles are utilised on a case by case basis • Two indices at repository:Crime Scene Index & Reference Index • Reference Index profiles = 92 760 • Crime Scene Index profiles = 78 20 • However, the repository is not adequately guided by clear legislation

  7. PURPOSE OF DNA POLICY • Therefore, the purpose of this policy is to create a legislated & regulated national DNA database which will allow the police a tool to use for criminal intelligence purposes, and which will assist in the investigation and detection of criminals • In writing this policy, gaps from the previous legislation needed to be addressed • The following slides speak to the key areas identified, with recommendations

  8. ACCREDITATION SAPS FSL • The SAPS FSL is currently not accredited • Accreditation will provide assurance of technical competence to courts which will result in cases being less likely to be contested or questioned in court • The SAPS have indicated that the FSL has already embarked on a road map to accreditation

  9. CUSTODIANSHIP & ADMINISTRATION OF DNA DATABASE • The databases of all the countries examined for the policy are national competencies • Policy explored 3 options (privatization, Section 21, State FSS) • The proposal is that we do not opt for the privatization route or a Section 21 Company as the financial cost to the State would be too high • A DNA repository already exists at the SAPS FSS, with admin structures, skilled & trained staff, and approx 170 000 profiles • Therefore the recommendation is to locate database within the State, particularly the SAPS FSS • But capacity of FSS has to be strengthened in order to deal with the huge task

  10. INDICES AND CATEGORIES OF PROFILES • Current repository has two indices: crime scene index & reference index (included suspects & victims profiles) • Portfolio Committee on Police recommends 3 indices: crime scene index, convicted offender index & elimination index • Policy recommendation is 5 indices: • arrestee’s index (charged suspects) • volunteer’s index (for exclusionary purposes) • crime scene index • convicted offender index • Elimination index (for detection of staff contamination)

  11. SIZE OF THE DNA DATABASE • To be limited to the 5 indices • arrestee’s index • volunteer’s index • crime scene index • convicted offender index • elimination index • This will ensure chances of a comparative hit for crime intelligence purposes remains great • A larger database does not guarantee better chances of crime solving as effective police investigations

  12. AUTHORIZATION FOR REFERENCE SAMPLE COLLECTION • Medical practitioners currently collect blood & semen samples, police do breathalyser tests • Recommendation: Authorized members(appointed police personnel, appropriately trained in DNA sample collection, who undergo assessments and are certified competent) be allowed to collect reference samples • These will increase collecting capacity & avoid secondary victimization • Also not practical for medical personnel to be available at all reference collection points

  13. WHERE REFERENCE SAMPLES SHOULD BE COLLECTED • Authorized police officers to be allocated special rooms at courts & at specific police stations (as is practiced in Canada) • Police stations to be selected by oversight body & SAPS FSS officials & be accredited • Individual’s right to privacy is still guaranteed

  14. RETENTION, DESTRUCTION AND EXPUNGEMENT OF SAMPLES AND PROFILES • Crime scene samples cannot be destroyed & must be retained indefinitely for evidentiary purposes • Suspect's samples needs to be retained for a certain length of time for it to be analysed and to be checked beyond the closure of the case • Particular DNA profiles may be expunged (those of innocent people) • Other profiles are required for reference purposes and potential investigative leads (those of the arrestees, elimination & offenders indices)

  15. TIMEFRAMES FOR THE RETENTION & DESTRUCTION OF DNA SAMPLES & PROFILES • Arrestee’s profiles: if acquitted or no conviction, expungement within 6 months. If guilty profile should remain on database • Elimination profiles: to remain indefinitely for detection of personnel contamination & all cold case investigations • Convicted offenders profiles: expunged 6 years after release if no other hits recorded • Volunteers profiles: expunged after 3 months as these are searched against a particular crime. Victims profile to be expunged immediately after finalisation of a case • Crime scene samples: remains indefinitely

  16. HUMAN RIGHTS • Any proposed legislation has to fall within the parameters of the Constitution. Issues of human rights violations were raised at the previous hearings of the DNA bill • Right to human dignity: use of buccal swabs do not violate the individual rights of a person & is practiced internationally & police to be trained in reference sample collection • Right to privacy: DNA samples & profiles of innocent/ acquitted persons to be expunged, information stored in the database to be safeguarded against any unauthorised access, genetic information to be securely recorded and monitored & the place where samples are to be collected should be specifically allotted • Right to bodily and psychological integrity: use of buccal swabs to collect saliva samples is non-invasive & does not infringe a person’s right to bodily and psychological integrity

  17. HUMAN RIGHTS CONT… • Rights of children • DNA legislation should be aligned with the Child Justice Act as well as the fingerprint legislation • Even in cases where minors DNA submitted voluntarily (missing children cases), provision must be made to avoid the DNA used in criminal investigation • Balancing the rights of individuals to the safety of communities • The legislation must provide adequate safeguards such as punitive penalties for abuse of the DNA database • The roles and responsibilities of the oversight body as recommended in this policy will ensure adherence to statutory obligations. • It is ultimately left to the public to decide if any violations have come to pass

  18. OTHER ISSUES RE NATIONAL DATABASE • Link of NDDSA to the AFIS • To link the DNA database to the Automated Fingerprint Identifications System (AFIS) to expand the crime intelligence tool despite the lack of a link between the two systems & to improve the ability to identify potential linkages sooner • IT Solutions • CODIS should be utilized as the database software • Role of other departments • Protocols between relevant departments to be finalized once implementation of legislation is adopted • Consultations to be done prior to passing of the legislation

  19. PHASED IN IMPLEMENTATION OF LEGISLATION • Phase 1: First 18 months • Legislation to be adopted • Oversight Body to be established & rules and regulations to be put in place • SAPS FSS to begin training of existing HR capacity & undertake further recruiting • Identified police stations to be accredited • Particular functions of Biology Section to be decentralized for sample collection • Awareness campaigns to be conducted • Collection of convicted persons samples in all prisons to begin • Collection of samples of all other indices to begin • Phase 2: Second 18 months • M & E of the first 18 months to be conducted • Impact studies of improvement of hits to be conducted • Sample collection to continue

  20. OVERSIGHT AND REVIEWING • Fundamental rights of people be protected with Database • Therefore an oversight body to be established • To consist of SAHRC, Departments of Justice, Health, DCS, SAPS, the Civilian Secretariat for Police, and a member from the South African Society of Human Genetics • Appointment of Board responsibility of JCPS Cabinet Committee with the final sanction of Cabinet • Responsibilities should include oversight of the implementation of the legislation process, as well as overall governance and Integrity of the national DNA database

  21. OVERSIGHT AND REVIEWING • Other responsibilities: monitoring performance, conduct, ethics & privacy • Board must review all future applications to access data and samples for forensic and non-forensic purposes to ensure standards are maintained, ensure public accountability & transparency. • The Board must report to Parliament annually • DNA legislation must be subject to Parliamentary review every 5 years to address gaps, technological needs and scientific developments, and human rights transgressions

  22. CONCLUSION • This policy recommends that South Africa establish a DNA database as a criminal intelligence tool, to aid in fighting crime, enhance public confidence, and taking into account people’s Constitutional Rights • DNA is not the only source of evidence & the policy does not pronounce it as the silver bullet over efficient police investigations • It is however scientifically sound, and in terms of evidentiary value, is especially beneficial

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