Implementation of Criminal Law Amendment Bill in Correctional Facilities

1. Implementation of the provisions of the Criminal Law (Forensic Procedures) Amendment Bill in respect of persons detained in DCS Correctional and Remand Facilities 25 June 2013

2. IMPLEMENTATION TASK TEAM • Department of Correctional Services • South African Police Service (Forensic Services and Legal Services) • National Department of Health • National Health Service Laboratories (NHSL) • Civilian Secretariat for Police • Integrated Justice System Board • CJS Review

3. INTRODUCTION • Section 36(d) (7) of The Criminal Law (Forensic Procedures) Amendment Bill, 2013 provides for the taking of specified bodily samples from certain categories of persons for the purposes of forensic DNA analysis: • Including “buccal samples” from persons who are in Correctional Facilities and Remand Centres on the implementation date that is determined following the enactment of the Bill; and • In cases where a buccal sample had not already been taken previously. • The Bill provides that the Head of the relevant Correctional Centre or Remand Detention (RD) Facility or his or her delegate ensures persons serving a sentence at a centre have their sample taken before release. • SAPS, the National Health Laboratory Services, DCS and the Office for Criminal Justice Reform (OCJSR) meetings reviewed the most appropriate and efficient way for obtaining the required buccal samples, including training of authorised persons. • This document deals with the conclusions that have been arrived at and contain the recommendations of the joint working group.

4. BACKGROUND STATISTICS

5. IMPLEMENTATION OPTIONS Authorised Persons • In addition to selected SAPS and IPID officials, the Bill provides for the taking of buccalswabs by any registered medical practitioner or registered nurse as defined in the National Health Act, 2003 (Act No. 61 of 2003) that provide services to the Department of Correctional Services (DCS) on condition that all such persons shall be authorised. • It is estimated that: • 5 000 of the SAPS and IPID contingent are trained by the end of the current financial year and 20 000 in 2014/15 and per annum thereafter; and • that there would be a good distribution of trained people across all parts of the country. • The DCS contingent would only be in the hundreds and only present at selected correctional and remand facilities.

6. IMPLEMENTATION OPTIONS Approach • The provisions of the Bill could be met over the term of imprisonment of sentenced offenders if an arrangement were made to take samples before they are released unconditionally or on parole or on probation. This approach may take several years and complicate the keeping of accurate records. • A more aggressive approach can be followed and the entire population can be processed in less than two years. The latter option is strongly recommended and is outlined in the following slide. • Remand detainees, with their high turnover, would over the period that SAPS is implementing the Bill on arrest, be entering the system having had their sample already taken. Remand detainees in the facilities for long periods could be catered for differently, but these constitute a minority.

7. IMPLEMENTATION OPTIONS… APPROACH (CONT) Recommended that: • All sentenced inmates are processed within 12 - 18 months from the implementation date • Teams consisting mainly of trained SAPS officials be established to do this work as the DCS workload is of a once-off nature.

8. IMPLEMENTATION OPTIONS DCS Implementation • The need for persons in Correctional or RD Facilities to be buccal swabbed will diminish to almost nil over time once the initial backlog is dealt with. • In the long-term the need for the Department of Correctional Services to actually take any buccal samples may at best be in exceptional instances and only where SAPS had not taken the samples upon arrest or at conviction. • DCSs role in the implementation would therefore be more effective in: • Availing inmates at certain times for the taking of buccal swabs by SAPS official already trained; • Availing the space necessary for the taking of the sample; • Ensuring the taking of the sample is captured on the file of the inmate (at first manually and then electronically); • Amending the A7R system to include information on the taking of a sample; and • Ensuring the information is part of the IJS transversal once connected to it. • This approach would also deal with the practical challenges identified in terms of current capacity of medical staff and DCS involvement in evidence gathering, including potential appearances in court to testify to the chain of evidence.

9. IMPLEMENTATION OPTIONS - RECOMMENDATION • It is recommended that the buccalswabs of all categories of detainees are taken by SAPS detectives under supervision and facilitation by DCS and that the intervention be project managed in such a way that the entire detainee population is processed within 18 months from the implementation date. • Consideration may be given that dedicated teams or persons focus on taking the buccal samples from all persons in custody in a particular facility before moving to the next one. This approach, depending on the size of the team, permit that the samples are taken over several months, but if the team consists of ten persons it can be managed that the samples are taken from all inmates within a 12 – 18 month period.

10. It is important that samples that have been taken from the detainees be transmitted to the SAPS FSL in the shortest possible time. • This will be greatly facilitated if SAPS authorised people perform the buccal swabs which would negate the necessity for storage of any samples by DCS. • DCS will have to maintain an accurate data base of information in respect of detainees who have been buccal swabbed. This has to be done for the present detainee population and will have to be recorded in the DCS Admission and Release (A&R System). • SAPS will have to provide DCS with information on swabs of newly admitted detainees, via the J7, until an automated link can be established through the IJS.

11. COMMUNICATION AND SYSTEMS REQUIREMENTS • The major role players believe that the approach that has been recommended will be the best from a practical as well as from an impact point of view and that the target of 12 – 18 months is achievable. • The amendments that are required to the J7 and to the A&R System are acceptable • Recommendations have been reflected in a Memorandum of Understanding between the different stakeholders. • The National Department of Health (NDOH) • National Health Service Laboratories (NHSL) • South African Police Service (SAPS) • The Department of Correctional Services (DCS) • The Independent Police Investigative Directorate (IPID)

12. MEMORANDUM OF UNDERSTANDING: TAKING OF BUCCAL SAMPLES • The Memorandum of Understanding aims to: • Provide an agreed to framework relating to cross-departmental processes and information flow in respect of training authorised persons by the Department of Health through their public Health Service provider, namely the National Health Laboratory Services (NHLS) • Ensure that the focus of the taking of buccal samples and related issues is provided as required in terms of the National Health Act. • Ensure that the training will be provided by the National Health Laboratory Services (NHLS) to authorised persons in the South African Police Service (SAPS), the Independent Police Investigative Directorate and Department of Correctional Services (DCS)

13. MEMORANDUM OF UNDERSTANDING Available for scrutiny 13

14. CONCLUSION • The Joint Implementation Team wishes to assure the Portfolio Committee that • There has been consultation during the pre-drafting and drafting stage of the Bill; • More recently, and specifically during the last two weeks, the parties worked together to review the implementation plans and the state of readiness of each participating department; • All implementation aspects are on track and that there is a clear understanding of what is required by individual role players as well as by the CJS overall; • By approving the Bill, Parliament will further empower the JCPS Cluster in its endeavors to substantially reduce crime.