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Presentation to Select Committee on Security and Constitutional Affairs on the Criminal Procedures (Forensic) Amendment Act 28 July 2010. SECRETARIAT OF POLICE. BACKGROUND.
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Presentation to Select Committee on Security and Constitutional Affairs on the Criminal Procedures (Forensic) Amendment Act 28 July 2010 SECRETARIAT OF POLICE
BACKGROUND • The Office for Criminal Justice System Reform in the process of review of the Criminal Justice System identified as a priority the need to strengthen the forensic investigative powers and capacity of the SAPS. • Existing laws have been analyzed and comparative research undertaken in respect of recent crime scene and forensic developments in other jurisdictions. • Lacunas in respect of the collection, storage and use of fingerprint evidence have been identified.
IDENTIFIED PROBLEMS • There is no functional link between the SAPS AFIS system, the Department of Transport’s E-NATIS system and the Department of Home Affairs' HANIS system. • The HANIS system is populated with the fingerprints of 31 million citizens and 2 million foreigners, and the E-NATIS system with 6 million prints. • A large portion of criminal cases remain undetected as a result of a lack of access and linkages between these systems. • There is no obligation in law on the taking of fingerprints either in respect of serious offences or criminal convictions. • Crime scene prints are thus only checked against the limited SAPS system reducing the prospects of identification of suspects.
PURPOSE OF THE BILL The Bill was intended to • To provide the SAPS access to other fingerprint databases for criminal investigations; • To expand the powers of the SAPS to take and retain fingerprints and biometric materials; • To provide for the establishment, administration and use of a DNA-database.
ADVANTAGES • An expanded fingerprint capacity is an important intelligence tool in respect of crimes such as property crimes with a low detection rate. • Plea bargains increase when solid evidence such as fingerprint evidence can be produced. • Fingerprints are important in bail applications. • Fingerprints can serve to prove guilt as well as innocence.
PROCESSES • The original Bill was introduced by the Minister of Justice and initially dealt with by the Portfolio Committee of Justice. • It was referred to the Portfolio Committee on Police. • The Portfolio Committee on Police decided to deal with the Bill in two phases, namely: • Phase 1 first to deal with fingerprints and body-prints and, • Phase 2, to deal with DNA. • The Bill before the Committee addresses Phase 1, namely the finger and body-print issue.
SAFEGUARDS • The Bill provides for strict safeguards and penalties to ensure that fingerprints, body-prints and images collected, are stored and used only for purposes related to the detection of crime, the investigation of an offence, the identification of missing persons and the identification of unidentified human remains, or the conducting of a prosecution. • No fines are provided for in the penalties to underline the seriousness with which abuse of fingerprints is regarded.
SAFEGUARD • To secure the integrity of the information on the databases • SOP are required to be put in place regarding access to databases • Safety measure would need to be put in place to secure the integrity
PROVISIONS OF THE BILL • The Bill provides for powers of the police to take fingerprints of accused and convicted persons. • It further makes it compulsory to take fingerprints in respect of - • Persons arrested and convicted of Schedule 1 offences; • Persons released on bail; • Persons upon whom summons in respect of Schedule 1 has been served; • Persons convicted by a court and sentenced to a term of imprisonment without the option of a fine, irrespective of suspension thereof. • Persons convicted in respect of offences listed in the Gazette by the Minister of Justice. • Furthermore fingerprints may be taken from any person arrested upon any charge or who paid an admission of guilt fine in respect of offences listed in the Gazette by the Minister of Justice.
PROVISIONS OF THE BILL • The Bill further provides for, • The storing of fingerprints on a database maintained by the National Commissioner, • The retaking of fingerprints, • The storing and retaining of fingerprints, subject to the provisions of the Children's’ Act and • the destruction of fingerprints in case of an acquittal or non-prosecution of an accused and destruction of fingerprints upon receipt of a Certificate of Expungement from the Director-General of Justice. • For any abuse of fingerprints or manipulation or tampering therewith the Bill provides for imprisonment to a maximum of 15 years, without the option of a fine.
PROVISIONS OF THE BILL • Provision is made to take fingerprints without a warrant in respect of offences in terms of Schedule 1 of the Act where any person in a group could have committed an offence in order to include or exclude a person as a suspect. • The measures in respect of the abuse, retention keeping and use of fingerprints are applicable to this category as well. • (There are already similar provisions in the Firearms Control Act, and the Explosives Act.) • Section 37 is amended to provide for subjecting body-prints, and photographic images to a comparative search, the retention thereof and the destruction in line with what is described above.
PROVISIONS OF THE BILL • Sections 212 and 215 of the Act is amended in respect of the provision of evidence by means of a certificate, and the admissibility of evidence, respectively, mainly consequential amendments as a result of other amendments to the Act. • The South African Police Service Act is amended to deal with the storage and use of fingerprints, body-prints and photographic images of persons. (Provision is in particular made for the safeguarding and security of the database). • Consequential amendments are made to the Firearms Control Act and the Explosives Act as a result of the amendments in the Bill.
CONSULTATIONS • Most of the comments received from the public upon invitation dealt with the Bill before it was split, in other words with the DNA issues. • The Bill was amended by the Portfolio Committee to align it with the Children's’ Act, both in respect of the manner in which fingerprints and body-prints are taken and the destruction of fingerprints and body-prints. • (Fingerprints taken from a child must be taken having due regard to the privacy, dignity and bodily integrity of the child, it must be taken in a private area not in view of the public, the parent, guardian or social worker must be present when fingerprints are taken, and the child must be treated and addressed in a manner taking into account the child’s gender and age).
CONSULTATIONS • The Committee interacted intensively with the respective role-players, including the Departments in the Criminal Justice Cluster on issues of implementation and financial implications. • The Bill will be implemented incrementally taking into account the challenges regarding connectivity of the different systems between the Departments. • Both the Departments of Justice and Police were involved in the drafting process and the State Law Advisers assisted with the splitting of the Bill.
CONSULTATIONS • The Committee also received a presentation from the Interdepartmental Team chaired by the Office for Criminal Justice System Reform and the Integrated Justice System Board.
