We continue with and wrap up our examination of the Forensic Procedures and DNA Identification Act, 2005. As previously discussed, section 17 of the Constitution provides for the protection of individuals against arbitrary search and seizure by the Crown without consent from the individual. Section 3 of the act provides for the requirement of informed consent of suspects in custody but then sections 10 and 14 erode any protection which might have been afforded and allow samples to be taken anyway.
What happens if the state has, with or without your consent, subjected you to a forensic procedure and obtains DNA or other samples? Well, in the event that a conviction is quashed the Commissioner of Police shall inform the Director pursuant to section 60 and the forensic material must be destroyed “as soon as practicable”. Where proceedings for an offence to which the sample relates have not been instituted within one year or where any proceedings are discontinued then the material must be destroyed as soon as practicable unless “a warrant has been issued for the suspect.” Where the material is taken and an offence is found to have been committed but no conviction is recorded and the decision is not appealed then that sample must be destroyed as well.
Of course there is always an exception to every rule and the Director of Public Prosecutions may apply to the court for an order that the retention period be extended. The court may grant an extension only where the suspect has been given notice and has been represented or been given the opportunity for representation either in person or by attorney-at-law or other representative to make submissions to the court as to why the extension should not be granted. The period for any such extension may not in any case exceed three years.
Even though a forensic sample may have been obtained by the State it does not automatically mean that it will be admissible as evidence in court. Section 116 of the Evidence Act has been specifically mentioned in section 59 of the act and states that where evidence is obtained “(a) in contravention of a law, or (b) in consequence of an impropriety [it] shall not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained”.
The court must take into account the “probative value of the evidence” (how far it goes towards proving the alleged crime), the type of offence, the gravity of the impropriety on the part of the state and whether it was “deliberate or reckless” amongst other things and interestingly enough, “the difficulty, if any, of obtaining the evidence without impropriety or contravention of law”.
Considering that the usual standard of proof in criminal matters is usually beyond reasonable doubt, please be warned that the lower civil standard of balance of probabilities is used here. In other words the State does not have to do much to get this evidence in.
The act makes provision in section 64 for the establishment of a DNA Database System which contains forensic information from crime scenes, missing persons, unknown deceased persons, serious offenders, volunteers and suspects. Information which must be destroyed under the provisions of the act must not be stored on the database. There are obvious confidentiality requirements for persons authorised under the act to deal with this database and disclosure of information may only be made for criminal investigations, to the person from whom the material was taken, compliance with the order of the court under the Status of Children Act in relation to the paternity of children and so on. Breaches of the provisions relating to non-disclosure, falsification of information or attempting without authorisation to access the records result, upon conviction before judge and jury, in a fine of $100,000 or imprisonment for seven years.
The implications of such a system make the constitutional protections all the more necessary and it is a shame that more discussion or public awareness was not brought to bear prior to the passage of the act.