Identification Parades in Kenya , Kenyan Criminal Procedure

By Ms Lichuma

What are ID Parades?

·         Blacks Law Dictionary defines ID parades as a police identification procedure in which a criminal suspect and other physically similar person are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. ·         ID parades are held to enable eye witnesses to identify suspects whom they allegedly saw. Failure to hold such parades weakens the evidential values and all that remains will be dock identification which is weak.

Dock Identification v. Identification parades

·         Dock identification involves a witnesses pointing out the accused standing at the dock, and identifies him as the culprit who committed the crime. ·         The courts generally avoid convictions based on dock identification because such evidence without corroboration is of lesser value. This was enunciated in Gabriel Njoroge v. Republic where the court held that the dock identification of a suspect is generally worthless unless other evidence is adduces to corroborate it.

Conduct of ID Parades

Force Standing orders (chapter 46)

·         This provides that, whenever necessary that a witness be asked to identify an accused/suspected person, the following procedures must be followed. ·         This requirement was justified following R v. Mwango & Maina- Here an ID Parade was conducted in hospital where the suspect was admitted and which the ID parade consisted of only 3 men. The complainant picked out the accused who was tried and convicted. The convication was quashed as this flouted two major police force standing orders: o   The accused should have been placed among eight people of similar height, age and general appearance; and o   The witness should have been asked to pick out the person he believes committed the offence.

Prior to ID parade

·         Witness should provide a description of the accused before taking part in a parade. In cases relying solely on the evidence of identification, it is imperative that the description of the offender made by the victim during the first report to the police is recorded and latter produced in evidence. o   Ntelejo Lokwam v. Republic- ID parade was held three years after the said robbery. Held that in the absence of a description being given to the police when the first report was made after the robbery had taken place, it would be impossible for an independent tribunal to arrive at a determination that the complainants had in fact made a positive identification of the appellant in an ID parade.

Procedures under the Force Standing Orders

The accused/ suspected person should always be informed of the reason for the parade and that he may have a solicitor or friend present when the parade is being conducted. ·         This requirement gives an accused a protective feeling. Though the parade helps to identify a suspect, it offers the accused a certain level of security by its very nature and conduct. ·         The presence of a lawyer or a friend in an identification parade helps to assure the accused that his rights are well taken care of. In the case of David Mwita Wanja & 2 Others vs. Republic, the first appellant contended that his rights were violated as he was not allowed to have a friend present then. However, the court held that Mwita’s parade was conducted properly. It was an omission on his part to provide an address of a friend he wished to call or a name that led him not having a friend present.

The police officer in charge of the case, although he may be present, should not conduct the parade. ·         This underscores the need of fairness in the conduct of the parade. The presence of a police officer in charge of the case would be prejudicial to the accused.

The witness or witnesses should not see the accused before the parade ·         If witnesses are allowed to see the accused before the parade, it will be prejudicial to the accused and would greatly undermine the evidential value of the parade. The police should take steps to ensure that this does not happen. ·         In the case of Livingstone Mwangi v Republic the court held that the identification parade was not worthy of any evidential value since the identifying witness had already been shown the suspect who was already arrested. ·         In Omar v. Republic the court clearly upheld the rule that the witness or witnesses should not see the accused before the parade. It stated as follows: ‘Though the parade had been properly conducted, the appellants success in proving that he had been seen by the witness prior to the parade meant that the parade was useless.’

The accused /suspected persons should be placed among at least eight persons, as far as possible of similar age, height, general appearance and class of life as himself. Should the accused/suspected person be suffering from disfigurement, steps should taken to ensure that it is not especially apparent. ·         In Njihia v. Republic the court held that the identification parade conducted in this case was not proper because it was contrary to the ratio of one suspect to eight persons, which is stipulated in the Police Force Standing Orders. In this case three suspects had been lined with eleven others. The court observed that this was mathematically too low a ratio to exclude the chance of random guesswork. ·         In the case of David Mwita Wanja & 2 Others v. Republic-In this case two parades were conducted. The eight persons who took part in the second parade however, were the same persons were in the earlier parade except the positions they stood. It was submitted by the counsel for the appellants that the evidential value of the identification parades were rendered meaningless since the witness could readily tell by elimination that the two appellant were the only new faces in the parade. It was held by the court that this was extremely prejudicial to the appellant

The accused/ suspected person will be allowed to take any position he choses and will be allowed to change his position after each identifying witness has left. ·         This ensures that the suspect does not feel noticeable and that his protection is guaranteed. The intention of such movement is in no way intended to confuse the witness but to help achieve a positive identification of the culprit.

Care must be exercised to ensure that the witnesses do not communicate with each other ·         This provision ensures that the suspect is protected from bias in that he/she is not identified on the basis of information received from another witness which in most cases might be so subjective

Every unauthorized person must be excluded ·         This also ensures that the accused feels safe and protected from any form of bias or prejudice. Unauthorized persons might psychologically interfere with the suspect/accused.

If the witness desires to see the accused/suspected person to walk, hear him speak, or for example see him with his hat on or off, this should be done, but in this event the whole parade should be asked to do likewise. ·         The requirement that this should apply to the whole parade ensures that suspect does not have undue advantage over the others. In the South African case of ‘Two hats Parade’ the accused was the only one in the parade who had worn a scarf. The woman identifying him asked the police officer conducting the parade to move and turn sideways and even asked him to produce a noise. It was held that this was not proper as the others were not asked to do the same.

Police should ensure that the witness actually touches the person he identifies ·         This is meant to ensure that the identifying witness is certain of the person identified. It is also meant to avoid any form of confusion that might arise between the persons conducting the parade and the identifying witness. For instance, a witness might identify a suspect but the police might understand or record it differently. But when a witness touches the suspect, he/she leaves no doubt as to whom exactly he/she identified.

At the termination of the parade, or during the parade, the officer conducting it should ask the accused/ suspected person if he is satisfied that the parade is being/has been conducted in a fair manner and notes his reply. ·         The accused/suspected person in this case is given a chance to comment on the fairness of the identification parade. This rule has the effect of making the accused/suspect part of the process with the ultimate goal of conducting the parade fairly. He may at this point raise any objection on how the parade is being conducted. If he does raise an objection, the court will exercise its discretion in determining the validity of such objection.

When explaining the procedure to a witness the officer conducting the parade will tell him that he will see a group of people which may or may not contain the person responsible. The witness should not be told ‘to pick out’ somebody or be influenced in any way whatsoever. ·         The case of Oluoch v Republic illustrates this point. In this case, one of the identifying witnesses was, according to his evidence, told ‘to identify the people who robed me on August 10th 1982.’ It was held that the witness could reasonably take that to mean that persons who robbed him were at the parade. Consequently, the evidence was considerably of lesser value

A careful note must be made after each witness leaves the parade, to record whether he identified the accused/suspected person and in what circumstances. ·         This is done for the purpose of keeping proper records and it will also help to determine whether the witness identified the accused positively or not. The circumstances under which the accused was identified will help in comparing the description of the accused by the witness and the identified person in the parade. This record will also go a long way in assisting the court to exercise its discretion with regard to the circumstances surrounding the identification parade.

A record should be made by the officer conducting the parade of any comment made by the accused/ suspected person during the parade, particularly comments when the accused/ suspected person is identified. ·         This is also meant to assist the court in exercising its discretion in determining whether or not to admit the evidence. It is not easy to imagine statements that might suggest that the accused is guilty. This is therefore factual and each statement should be analysed on its own merits.

The parade must be conducted with scrupulous fairness, otherwise the value of the identification as evidence will be lessened or nullified ·         This point is well captured in the case of R v. Mwango

Note that parades should be conducted with as much privacy as possible. They should not, unless unavoidable, be held in view of the public but in a closed compound or yard from which spectators and unauthorized persons have been excluded

Anonymity of witnesses

The Force Standing Orders also provide that if a witness desires to keep his identity secret, and the circumstances are such that the officer in charge of the case deems such a course advisable for reasons of security, victimization, etc, arrangements will be made for the witness to view the parade from a concealed vantage point (e.g through a window, from behind a screen). If the witness identifies one or more of the persons on the parade, the persons so identified will be removed from the parade and brought before and confronted with the witness, who will be asked to confirm the identification in the normal way, i.e by touching the person

Whenever the prosecution is to adduce evidence based on the conduct of an identification parade, then the magistrate must ensure that it was done in compliance with these instructions.