Matching a human being’s distinct genetic blueprint, the person’s DNA, found on a crime scene, to a profile found on an extensive DNA database of offenders seems like a simple exercise these days. Done on almost every American cop show on television, and at law enforcement agencies in numerous countries around the world, it is hard to believe that it is not such an easy task in South Africa.
Not yet, anyway. Should the Criminal Law (Forensic Procedures) Amendment Bill clear the final hurdle and receive President Jacob Zuma’s signature and be promulgated, it will allow for the South African Police Service (SAPS) to finally establish such an extensive DNA database in South Africa.
Working tirelessly for nine years to see this database become a reality, following the murder of her father – a crime where every scrap of DNA evidence was lost – Vanessa Lynch says the President’s signature does not mean the job is done.
Lynch spent four years lobbying govern- ment to pass DNA-specific legislation and, once that was achieved, it took another five years to pass it through Parliament.
An attorney by training, she formed nongovernmental organisation The DNA Project to pursue this goal.
“When the Bill is actually promulgated, only then will I breathe a transitory sigh of relief, because that will be when the real work begins,” says Lynch.
“While the law may look good on paper, my mission is and has always been to see it translate into actual crime deterrence and reduction.
“Only when I see its effective implementation will I honestly say that we, as a team, have made a difference.”
What Is a DNA Database?
The SAPS does have a DNA database, but it is populated by a mere 180 000 profiles.
In contrast to this, Interpol indicates that the US in 2008 had 6.4-million offender profiles collected from convicts, arrestees and suspects, and 242 000 forensic profiles from DNA collected at crime scenes.
The current SAPS database consists of two indices: a case work index containing profiles derived from crime scene samples, and the reference index, containing profiles of known people, such as victims, suspects, volunteers and personnel (used for elimi- nation purposes).
There is no current legislation regulating DNA collection by the SAPS, which means it has no mandate to take DNA samples from those arrested for serious crimes, or from a convicted offender.
However, the new Forensic Procedures Bill is set to establish and regulate the administration and maintenance of what will be called the National Forensic DNA Database of South Africa (NFDD).
It will make it mandatory for DNA samples to be collected by specially trained police officers from those arrested on Schedule 8 offences, as well as those convicted of Schedule 8 offences.
Schedule 8 offences include treason, public violence, murder, rape, culpable homicide, sex trafficking, robbery, theft, kidnapping and arson.
The new legislation provides for the con- ditions under which forensic DNA profiles may be retained or destroyed, explains Lynch. The use of these profiles, she adds, will only be allowed for the investigation of crime, proving the innocence or guilt of a person, or for the prosecution or exoneration of convicted persons.
It will also assist in the identification of missing persons and unidentified human remains.
In the end, the NFDD will allow for effective comparative searches between DNA profiles.
“If we increase the number of profiles on our database, we will increase the chance of finding a match and linking a DNA profile found at a crime scene to a suspect, or, at the very least, deriving criminal intelligence therefrom,” explains Lynch.
“The DNA Bill, with its compulsory taking of DNA samples from arrestees and convicted offenders, ensures that the database is populated for this purpose.”
The DNA database will also allow for the quick identification of linked crimes.
“By helping to convict, or rule out a suspect at an early stage, a DNA database saves valuable police and other crime detection resources, leaving them free for other investigations, or to be deployed towards crime prevention,” notes Lynch.
How Samples Will Be Collected
There will be a distinction between bodily DNA samples and buccal DNA samples. Bodily samples are defined as intimate and include buccal samples, whereas a buccal sample refers only to a cheek swab.
The Bill defines an intimate sample as a sample of blood or pubic hair, or a sample taken from the genitals or anal orifice area of the body of a person.
A police official may only take a buccal sample, whereas only a registered nurse or medical practitioner is authorised to take a bodily sample.
A police official can be any police official or member of the Independent Police Investigative Directorate, who is not the crime scene examiner of the particular case, and who has successfully undergone the training prescribed by the Minister of Health, under the National Health Act, in the taking of a buccal sample.
This means that the collection of buccal DNA samples from arrestees and convicted offenders is logistically feasible, as it can be done by an authorised police official, as opposed to relying on medical practitioners or registered nurses to perform this task, says Lynch.
The Department of Health’s National Health Laboratory Service (NHLS) proposes that 100 000 police officials be trained in the taking of buccal samples over a five-year period.
The SAPS and the NHLS have entered into a memorandum of understanding to achieve this goal.
The SAPS will carry the cost of all the training, as well as the cost of the buccal and bodily sample kits.
The Forensic Procedures Bill also provides for strict timeframes within which the DNA samples must reach the SAPS forensic science laboratory (FSL) and be processed by the FSL, and within which the profile must be entered onto the NFDD, says Lynch.
The Database and Its Indices
The NFDD will have several indices.
The first is the Crime Scene Index, which will contain forensic DNA profiles derived from biological evidence collected from crime scenes.
The Arrestee Index will contain DNA profiles from all persons arrested for, or suspected of having committed, a Schedule 8 offence.
The Convicted Offender (CO) Index will contain DNA profiles from persons convicted of any schedule eight offence.
The Investigative Index will contain profiles from persons taken with informed consent or by warrant, if necessary, for the purpose of investigating an offence.
The Elimination Index will contain the DNA profiles of anyone who attends or processes crime scenes as a part of his/her official duties; people handling, processing or examining crime scene DNA evidence; people who calibrate or service equipment; people entering examination areas of laboratories; people involved in the manufacturing of consumables, equipment, utensils or reagents used in DNA sample collection and pro- cessing; as well as all new SAPS recruits.
The Missing Persons and Unidentified Human Remains Index will contain profiles from missing or unidentified persons, or unidentified human remains.
Crime scene samples and profiles will be retained indefinitely, says Lynch.
Profiles migrate to the CO Index upon conviction, or are removed following acquittal, or if charges are dropped.
A minor’s profile is only retained for a set term after conviction, but remains in the database indefinitely in the case of an adult, unless pardoned.
But What If . . .
Over the years, there have been some concerns around the formation and scope of a new, more comprehensive SAPS DNA database.
One of these concerns relates to the placement of DNA samples at crime scenes to throw the police off the scent of the real perpetrator.
Lynch says this is a risk that applies to all types of evidence.
“It is important to note that DNA evidence is not a silver bullet – it is one type of evidence and you still have to prove your case in a court of law using all the evidence available. But DNA is a very valuable, reliable and objective form of evidence, which is why it is so often able to secure convictions.”
Also, should the DNA database be limited to Schedule 8 offences?
The current policy runs the risk of not capitalising on the potential for numerous detections of other less serious offences, which do not fall under Schedule 8, says Lynch. However, owing to possible capacity demands on the FSL in the initial phases of the implementation of the DNA Bill, the legislation does allow for this provision to be revisited after five years, when the legislation will be reviewed.
Also, is the SAPS able to collect and look after an extensive DNA database such as the one proposed in the Bill?
While the FSL falls under the Department of Police, it is operated by scientists, who will also have custody of the NFDD, notes Lynch.
The Bill also specifically states that the custodian of the NFDD, the SAPS, must ensure that the analysis, custody and disposal of DNA samples at a forensic DNA analysis laboratory, as well as the administration and maintenance of the NFDD, are managed independently of each other.
Further safeguards include 15 years imprisonment for any abuse or misuse of information on the NFDD.
Currently, no such protection exists in respect of the repository of DNA profiles held by the FSL, which is yet another reason why laws regulating this area of the criminal justice system are urgently required, says Lynch.
The database will also have its own watchdog in the form of a National Forensic Oversight Ethics Board (NFOEB), which will be established in terms of the DNA Bill.
The board will consist of several members, five of which will be selected from members of the public with knowledge and experience in forensic science, human rights law or ethics relating to forensic science. They will be nominated by the public and appointed by the Minister of Police. Three members will be selected from the State, and include representatives from the departments of Health, and Justice and Constitutional Development. Another member will be from the South African Human Rights Commission.
The chairperson will be a retired judge or senior advocate with experience in human rights.
The responsibilities of the board are numerous and include monitoring the implementation of the legislation, oversight of operational processes to ensure best practices and the handling of complaints.
Lynch says she intends to apply for a position on the NFOEB.
The DNA Project as an organisation will also continue to be involved in the national roll-out of not only forensic and crime scene DNA awareness programmes, in conjunction with the FSL and the SAPS, but also legal awareness programmes within the criminal justice system, so that all the relevant people are made aware of the provisions of the Bill.
Lynch says she would like to see the expanded database reach its full potential in around five years’ time from the Bill’s promulgation.
Forensic Labs Busy
Responding to a Parliamentary question in 2012, Police Minister Nathi Mthethwa said the SAPS FSL received 207 660 entries in 2009/10, with this number increasing by 26% in 2010/11. The FSL consists of six different forensic units, including ballistics, questioned documents, chemistry and DNA, operating from four laboratories nationwide.
The number of entries at all units, received in 2011/12, grew by an additional 23% to 320 729, and between April 1 and September 30, 2012, 209 431 entries were received – a 67% increase, compared with the corresponding period in the previous year.
The increase in the number of exhibits submitted to the FSL was evidence of the increased confidence investigating officers had in the ability of the forensic services to contribute to crime investigation, Mthethwa said.
He also spoke of unsatisfactory reports on how courts had to postpone cases, or struggled to finalise cases, as a result of forensic delays.
“However, we are now beginning to experience a positive turnaround strategy.”
News24 reported at the time that the SAPS had reduced the backlog of cases over the past few years to just more than 3 000.
‘Proper Regulatory Regime’
The infamous Muldersdrift serial rapist, Shavani Phophi, was linked to the rape of a ten-year-old girl through DNA evidence, Minister of Police spokesperson Zweli Mnisi tells Engineering News.
He was found guilty on six counts of rape, two counts of theft and three counts of robbery with aggravating circumstances. He was given two life sentences.
“Phophi’s case is but one of the many which would not have been successful, had it not been for the forensic analysis provided as additional evidence in the case.”
He refers to forensic services as the police’s “silent weapon”.
“Although DNA analysis as a tool in the investigation of crime has been used for many years, there is a dire need for a proper regulatory regime, including adequate controls. The use of DNA in solving crime, in particular serious violent crime, is an imperative in law enforcement,” says Mnisi.
“We also believe this Bill will go a long way towards bringing closure to families who may be faced with a missing family member, or enabling police officials to identify unidentified human remains.”
Mnisi says a cost implementation plan has been developed in tandem with the Bill, which sees the SAPS strengthened with the appointment of 800 more forensic analysts.
“Although it is realised that the implement-ation of the Bill will be costly, it will, to a large extent, address crimes related to bodily integrity, such as murder and rape, which are serious crimes committed against the most vulnerable in the society, [while it will] also combat property-related crimes.”
The SAPS has presented an estimated cost of implementing the Bill over a three-year period, spread across a number of government departments, of R1.26-billion, the bulk of which will be operational costs, at around R900-million.