Introduction 1
- Introduction
- Value of DNA Evidence 1
- Current Legislation 2
- Proposed legislation 3
- Conclusion 4
There is a need to strengthen the investigative powers and capacity of the South African Police Service. That is why we need legislation that allows the taking of DNA profiles from the convicted persons and allows the SAPS to keep these DNA profiles in a DNA database. The bill wanted to expand the investigative capacity of the South African Police Service by creating an investigative tool in the form of databases.
The Bill of Rights applies to all legislation and binds the legislature, the executive, the judiciary and all state bodies.
Ascertainment of Bodily Features of Accused 5
- Introduction 5
- Section 37 of the Criminal Procedure Act 7
- Section 225 of the Criminal Procedure Act 11
- Section 225(2) of the Criminal Procedure Act 12
- Conclusion 13
The common law principle of "nemo tenetur ipsum accusare (prodere)" does not apply to the determination of physical characteristics or the taking of blood samples in general, and in particular to acts performed within the meaning of Article 37 (1 ) or (2) of the Criminal Procedure Act. In criminal cases, the determination of body characteristics was largely regulated by Article 37 of the Criminal Procedure Act. Therefore, under section 37, any police officer may take fingerprints, palms or footprints of the persons referred to in paragraphs (i) to (v) of subsection (1)(a), before sentencing the persons in question.
One should ask oneself whether taking fingerprints or establishing any body characteristics against the will of the suspect is justified under constitutional law.
Constitution of South Africa 14
- Introduction 14
- Unconstitutionally obtained Evidence 16
- Section 36 – Limitation of Rights 18
- Criteria Justifying the Limitation of Rights 19
- Section 35 of the Constitution and DNA 23
- Conclusion 26
The rights contained in the Bill of Rights are rights guaranteed to all citizens, including accused persons, however the rights in the Bill of Rights are subject to the limitations provided for in the statute of limitations embodied in Article 36 of the Constitution .51. Article 225(2) provides that the evidence referred to in sub-paragraph (1) shall not be inadmissible merely because the procurement of the evidence was contrary to the provisions of Article 37 or against the will of the accused. The essence of the right to a fair criminal trial, and what fuels its purpose, is that justice be done and also seen to be done.
The Court will follow a two-step approach to identify the violation of rights and assess the reasons for the violation. In response to our past, the concept and values of the rule of law, by. The idea of the rule of law presupposes a system whose operation can be rationally tested in relation to or according to law.
The limitation of the constitutional right to a purpose that is reasonable and necessary in a democratic society involves a balancing of competing values and ultimately an assessment based on proportionality. This is an essential part of the proportionality test, because proportionality dictates that the violation of rights should not be more serious than the purpose it seeks to achieve requires. The purpose to be achieved should be more beneficial than the cost of the restriction.
There is little doubt that the involuntary collection of a blood sample for the purpose of DNA profiling is both a violation of the suspect's right to privacy and a violation, if only slightly, of the right to bodily safety and integrity. I am of the view that the Limitation Clause of the Constitution permits the limitation of these rights by means of section 37 of the Criminal Procedure Act. The second ground of objection was based on the constitutional right to remain silent as contained in section 25 (3)(c) and (d) of the temporary constitution.
There is therefore an additional warranty built into the application of the provisions of this section.
Comparative overview 28
- General 28
- England and Wales 28
- Legislative changes 30
- Scotland 30
- Canada 31
- Australia 32
- New South Wales 32
- United States 33
- Legislation 34
- Conclusion 35
Thirdly, the amendment to the Criminal Justice Act 2003 has given police powers to take fingerprints and DNA samples from persons arrested on suspicion of committing a criminal offence. The Commonwealth Crimes Act of 1914 (as amended until July 2008) regulates the taking, use and destruction of fingerprints and DNA samples.109. The collection, use and destruction of DNA samples in New South Wales is regulated by the Crimes (Forensic Procedures) Act 2000 No. 59, which came into force in 2001.
DNA sampling may only take place upon obtaining a court order in the following circumstances:. The law provides for the destruction of DNA samples if the proceedings against the suspect are discontinued or if the suspect is acquitted. With regard to the misuse of DNA databases other than for law enforcement purposes, both civil and criminal liability arises.
However, some states expressly provide immunity from civil and criminal liability for misuse of DNA databases. The first would be to give the South African police the means to collect DNA samples and store them electronically in a database. Third, the DNA samples that can be preserved and preserved should be quantified according to the type of crime, for example, crimes of a violent or sexual nature.
Fourth, the legislation should consider whether DNA samples can be kept in the database when dealing with a minor offender. Fifth, strict guidelines should be imposed on the South African Police Service regarding the destruction of DNA profiles.
The Criminal Law (Forensic Procedure) Amendment
- Introduction 36
- The Criminal Law (Forensic Procedures) Amendment Bill 36
- Ascertainment of bodily features of persons 36
- Interpretation of Chapter 3 37
- Powers in respect of finger-prints and non-intimate
- Body-prints and samples for investigation purposes 41
- Conclusion 43
It is argued that non-intimate samples are samples that can be easily taken and that minimize the use of force or force that infringes on the suspect's bodily integrity. A police officer must immediately hand over any non-intimate sample taken pursuant to subsection (1)(b) to the National Commissioner of the South African Police Service or his or her delegate, who shall conduct DNA analysis on any such sample in terms of Chapter 5B of the South African Police Service Act, and include the results in the NDDSA. It is argued that the police have a discretionary power with regard to taking fingerprints of the suspect upon arrest.
This section in the amendment bill imposes a duty on the South African Police Service or responsible officer to take a non-intimate sample from the suspect upon arrest, summons or when the suspect is released on bail and no sample has been taken on to arrest. In addition, this section imposes a duty to take non-intimate samples from a suspect convicted in a court of law. All non-intimate samples after being taken by the police must be sent for analysis and the results recorded and stored in South Africa's national DNA database.
Any person who uses or permits the use of fingerprints, body prints, non-intimate samples, or information obtained from such samples as referred to in paragraph (a) for any purpose unrelated to the identification of missing persons, the identification of unknown human remains remains, the identification of the alleged perpetrator, the detection of a crime, the investigation of a crime or the conduct of a prosecution, is guilty of a crime and, in case of conviction, is not punished with a fine or imprisonment. more than 15 years. This section authorizes a police officer to take fingerprints or non-intimate person samples without a warrant from a person or group of persons if there is reasonable cause to believe that the person or one or more of the group has committed a crime. Such fingerprints or non-intimate samples may also be taken by a police officer if he believes that the taken fingerprints or non-intimate samples could be useful in the investigative process.
Non-intimate samples or information derived from such samples shall be stored in the national DNA database of South Africa.. directs the commander of the department responsible for the criminal records referred to in chapter 5A to destroy such samples after 5 years , if such a person has not been convicted by a court. In addition, this section clearly clarifies the purpose of taking non-intimate samples and the goal regarding the retention of the DNA profiles or any information derived from such samples.
Conclusion 44
- Introduction 44
- DNA as an investigative tool 44
- Proposed legislation 45
- DNA database and the Constitution 46
- Conclusion 48
Therefore, it is argued that in our country, DNA profiles and in most cases fingerprint profiles are not used to identify the suspect, but rather a confirmation of the pre-existing connection established by the investigator. Investigators must be trained in identifying potential samples for collection, properly collecting and suppressing evidence, and maintaining the integrity of evidence until the trial of the accused. Second, the investigator can perform a comparative search of the profile found at the scene with all profiles of convicted defendants stored in the database.
It all starts with the collection and removal of the DNA profiles from the crime scene, the object or the victim. Mismanagement of the information in the database is also a worrying aspect that should be considered. In Levack and Others v Regional Magistrate, Wynberg, and Another 2004 (5) SA 573 (SCA), the application of section 37 of the Criminal Procedure Act was extended to include voice recognition.
Nor does it appear to be a violation of the rights of the accused as contained in section 10 of the [Provisional] Constitution, which reads: "Everyone shall have the right to respect and protection of his dignity". It is argued that if the preservation of a DNA profile violates a right contained in the Bill of Rights; it would pass the scrutiny of the limitation clause. It can be said that in order to ensure adequate and efficient use of the DNA database, strict guidelines will have to be put in place with strict ethical guidelines governing the use of the database.
Criminal liability should follow any wrongdoing related to the use or modification of DNA profiles in the database. Premier of Mpumalanga v Executive Committee of the Association of State School Governing Bodies: Eastern Transvaal 1999 (2) SA 91 (CC).
