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Dr. Carolyn Hancock
Salient Provisions of the new DNA Act
6 March 2014
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We have a National FSL Infrastructure
We are using DNA evidence in court (sometimes)
SO, WHY DO WE NEED DNA LAWS?
The current repository of DNA profiles needs to be expanded by populating it with more DNA profiles from
different categories of people in an effort to utilise the DNA Database as a criminal intelligence tool.
A pertinent question.....
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Country
No. of Reference
Profiles
No. of Crime Scene Profiles
Total No. of Profiles on Database
USA
12000000
500000
12500000
UK
7100000
420000
7520000
China
23000000
500000
23500000
Australia
500000
210000
710000
France
2100000
200000
2300000
Netherlands
158000
53000
211000
Canada
260000
81000
341000
South Africa
93000
40000
132000
International Database Size
Source: Interpol Global DNA Profiling Survey Results 2012
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Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013
Establishes National Forensic DNA Database
NFDD - a regulatory framework with
severe penalties for abuse
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S.15F: The objective of establishing and maintaining the NFDD is to perform comparative searches to:
(1) Serve as a criminal investigative tool in the fight against crime
(2) Identify persons who might have been involved in the commission of
offences, including those committed before the passing of the DNA
Act
(3) Prove the innocence or guilt of an accused person in the defence or prosecution of that person
(4) Exonerate a person incorrectly convicted of an offence
(5) Assist with the identification of missing persons or unidentified
human remains
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Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013
mandates that reference DNA samples must be taken from arrestees & convicted
offenders* of schedule 8 offences *retrospectively
to be reviewed after 5 years
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Schedule 8 offences [23 listed offences]
"Treason."Sedition."Public violence."Murder."Any offence referred to in Part I or Part II of Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002)."Culpable homicide."Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007(Act No. 32 of 2007), respectively."Sexual assault, compelled sexual assault or compelled self-sexual assault as contemplated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (ActNo. 32 of 2007), respectively."Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters)Amendment Act, 2007 (Act No. 32 of 2007), respectively."Trafficking in persons for sexual purposes by a person contemplated in section 71 (1) or (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007)."Robbery."Kidnapping."Child-stealing."Assault, when a dangerous wound is inflicted."Arson."Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence."Theft, whether under the common law or a statutory provision."Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in Schedule 1, or is in such custody in respect of the offence of escaping fromlawful custody."Any offence under the Firearms Control Act, 2000 or the Explosives Act, 2003, which iswhich is punishable with imprisonment for a period of five years or longer in terms of the said Act."Convention offence or specified offence as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004)."Trafficking in persons as defined in section 1 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013)."Torture as defined in the Prevention and Combating of Torture of Persons Act, 2013 (Act No. 13 of 2013."Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule."
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Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013
Bodily or buccal sample?
Bodily: intimate or buccal sample by Dr or Nurse ONLY (this may include a crime scene sample)
Buccal sample: by police or self.
Gender
Buccal samples must be taken by a person of the same gender. There is a distinction in the Act between a persons GENDER and SEX.
Self taking
Person may request to take sample themselves but this must be supervised.
Who can take samples?
Police: buccal sample only
Dr/Nurse: bodily sample (includes both intimate & buccal sample; may be a crime scene sample)
Taking of reference samples
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Training police on how to take a buccal swab
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Section A: Training and Competency of collection of Buccal Smears
Background to DNA and Buccal Cells
Workflow of the buccal smear collection to DNA profile search
Demonstration on procedure for use of kit in the collection of buccal smears
Approach and explanation to the suspect
Preparation of workstation
The buccal smear collection kit
Completing the paperwork accurately
Health and safety, risks and possible diseases
Collection of sample
Understanding the chain of custody
Procedure to use the kit
Re-packing, sealing and storage of the kit with buccal smear
Supply of buccal smear kits and stock control
COMPETENCY ASSESSMENT
Section B: SAPS/ Forensic Awareness
What is forensic science?
National DNA Database
DNA Forensic Awareness
Questions and Answers
Closing and Feedback session
NHLS to train 100,000 police officials over a 5 year period
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Destruction of reference samples
Retention of crime scene samples
Definition & retention framework of
different types of Forensic DNA Profiles
Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013
Understanding the difference between a DNA sample and a DNA profile
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Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013
Category
Retention Period
Convicted Offender Index
Indefinitely
(Child 12 months)
Arrestee Index
Within 3 years
(Child: 12 months)
Crime Scene Index
Indefinitely
Investigative Index
3 months after case finalised
Elimination Index
Indefinitely
[All new SAPS recruits]
Missing Persons & Unidentified Human Remains
When case resolved
Categories of profiles: 6 separate indexes with different retention & expungement provisions
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Key Provisions | DNA ActCriminal Law (Forensic Procedures) Amendment Act 37 of 2013
Delivery of samples to FSL
Samples must be delivered to the FSL within 30 days of collec;on
DNA analysis of samples
Bodily & crime scene samples must be analysed
within 30 days of receipt at FSL*
Loading of DNA profiles on NFDD
DNA Proles must be loaded onto the NFDD within 30 days of receipt of sample by FSL
Destruction of samples
Bodily samples (unless they are crime scene
samples) must be destroyed within 3 months of the prole being loaded onto NFDD
Time Frames: the critical links
*unless there is a compelling reason in terms of priorities why such samples cannot be analysed and loaded within that time period
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NATIONAL FORENSIC OVERSIGHT &
ETHICS BOARD
NFOEBBOARD
Dual Functionality
Quis custodiet ipsos custodes?!Who is going to guard the guardians?!
oversight -
ethics
oversight -implementation
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NFOEBNATIONAL FORENSIC OVERSIGHT ETHICS
BOARD
10 MEMBERS
5 members of public with knowledge of forensic science,
human rights or ethics (nominated by public, appointed by Minister)
4 members from government - Health, Police Secretariat, Justice and Correctional Services
Chairperson - retired judge/senior advocate [deputy chair from remaining members]
Note: SA Human Rights Commission to remain independent oversight body to the NFOEB
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recommendations for improvements
oversight: sample destruction, retention & expungement of profiles
implementation of legislation
complaints
sample collection
performance of FSL and NFDD
minimum quality standards
compliance with ethical & privacy issues
public accountability & transparency
review Act in 5 years
NFOEB will monitor:
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Key Provisions | DNA Act1. Mandatory DNA profiling: arrestees and convicted oenders
2. Buccal sample taking controlled [method + environment + police ocers]
3. Categories of oences: schedule 8
4. Destruction of reference samples
5. Retention framework of DNA profiles: dierent for all 6 indices
6. Retrospective - convicted oender profiles
7. Penalties for any abuse of information
8. National Forensic Oversight Ethics Board
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What can we expect?
What will be the value of an expanded DNA Database in SA?
We can no longer ignore the huge
evidentiary value of DNA evidence in
conjunction with a DNA Database in
South Africa- especially its use in
child rape and sexual oences cases and to reduce the high rate of
recidivism.
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Can all of this be achieved in SA? DNA Act must be operational within rst year of passing legislation. 5 YEAR IMPLEMENTATION PLAN driven by Oversight Board. Crime scene awareness and training programs 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.
Ocers of the courts to corroborate a case against a suspect or exonerate a suspect quickly, thereby decreasing delays in court.
82% of suspects faced with DNA evidence, plead guilty in UK .must be educated in how DNA evidence technology works to decrease delays in court.
Police ocers must be trained in how to obtain DNA samples from arrestees and convicted oenders.
Increase and improve capacity of FSL - faster turnaround times / reduce backlogs
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www.dnaproject.co.za