DEFINITION
Black’s Law Dictionary defines Identification 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.
PURPOSE
The importance of identification evidence cannot be negated in criminal procedure. Without prior identification of a suspect who later becomes the accused person, there cannot be a proper conviction. Therefore, it is a trite law that an accused person must be clearly identified. If there is no identification then the accused cannot be convicted unless there are other factors connecting him with the offence. In law of evidence identification parade is also important as it explained below:
In R v. Mwango (1936) EACA 29, it was held that an identification parade must be conducted when the identity of an accused is doubtful. However, where a suspect is known to the witness then there is no need for an ID parade to be conducted as this becomes an instance of recognition as opposed to identification of the suspect.
In Ajode v. Republic (2004) 2KLR 81, the Court of Appeal comprising Gicheru CJ, O’Kubasu JA and Otieno Onyango Ag JA, held that it is established law that there is no need for an ID parade to be conducted in cases where the witness knows the suspect as the witness will merely be merely demonstrating his recognition of the suspect and will not be identifying him.
So that in The purpose of conducting ID parades can be said to be twofold:
ü They are held to enable eye witnesses identify suspect/suspects whom they allegedly saw prior to a trial being held. This is fundamental because dock identification is generally considered to be valueless unless a properly conducted ID Parade is held to justify the suspects being charged with the crime as stated by the Court in Ajode vs. Republic (2004) 2Klr 81. The court further held that a court should not place much reliance on dock identification unless it has been preceded by properly conducted identification parade. In Wafula & 3 Others vs Republic (1986) KLR 627 the court held that there had been a failure on the part of the police to investigate the case properly, particularly the failure to conduct identification parades so that the dock identification by the witness nearly 14 months after the commission of the crime. This identification was therefore valueless.
ü They are held to facilitate due process which is a fundamental requirement in criminal law.
Article 50(2) of the Constitution of Kenya 2010 cements an accused person’s right to a fair trial. This right can be said to include the right to have an ID parade conducted in accordance with set down procedure prior to the accused being charged. The Kenya Police Force Standing Orders at Form no 156 has set down procedures which if flouted will negate the validity of an ID parade and will lead to the release of the accused as they cannot be properly convicted because their constitutional rights were trampled upon. In the case of John Musyimi Mutua & Wambua Mutie V Republic where witnesses identified one appellant in an identification parade two years after the crime and no Identification parade was conducted for the second appellant. The court held that the Admissibility of such identification was shaky and could not be relied upon. The conviction of both was quashed.
In essence this illustrates that identification evidence is an essential aspect in criminal procedure, for a proper conviction.
Identification parades are held where:
ü The police have sufficient information to justify the arrest of a particular person for suspected involvement in an offence,
ü An eye witness has identified or may be able to identify that person, and;
ü The suspect disputes his identification as a person involved in the commission of that offence or where a dispute as to identity may reasonably be anticipated.
EXCEPTIONS TO IDENTIFICATION PARADES
ü Where suspect does not consent
ü Where it is impracticable to assemble people who resemble the suspect.
ü Where the eye witness cannot identify the offender,
ü Where the case is one of pure recognition of someone well known to the witness.
The method of identification was first set out by the rules in the Kenya Police Order 15/26. This was the initial law governing the conduct of identification parades in Kenya. It was set out by the Police Commissioner with initial instructions from the Chief Justice early in the 1950’s.
Procedure for conducting identification parades
They are;-
ü Suspect must be informed of the reason for the parade,
It offers the accused with a certain level of security. The solicitor’s role is not spelt out clearly under the standing orders. It is better to have your solicitor present together with a friend who can seek to record or take photos of the identification parade procedure, upon request from the police officer in charge of the parade. Refusal of such a request by the police officer in charge of the parade can be raised as a ground of objection by the accused person when giving feedback about the conduct of the identification parade. The advocate’s role is best as an observer because the participation of the advocate could result in the advocate playing the role of a witness thus resulting in a conflict of interest. In David Mwita Wanja & 2 others v Republic here the court held that the omission was on the 1st appellant for failure to provide an address or name of the friend he wished to call.
ü Suspect may have a solicitor or friend present,
In the criminal appeal of Joshua Mutiso Kisese v Republic, the appellant appealed his conviction on grounds that the officer conducting the identification parade had not followed the rules. The appellant had not been advised of his right to have an advocate or friend present. The officer conducting the parade did not tell the court whether the witnesses were accommodated before the parade commenced. It also appears that the appellant and his co-accused (who passed away during the trial) were placed in the same line-up, and the witnesses went before that parade one after the other, without the appellant being asked whether he wished to change the position in which he was standing. The court quashed the conviction and sentence, holding that the parade was improper.
ü Investigating officer should not conduct the identification parade, though he may be present,
In a paper written by Annegret Rust & Colin Tredoux titled ‘Identification parades: An Empirical Survey of Legal Recommendations and Police Practise in South Africa’ It was stated in point that ‘…an officer conducting the parade should state that he is independent and that he knows nothing about the case…’
It also ensures fairness in the sense that if the officer in charge of the case were the one present, such would be prejudicial to the accused.
ü The accused should be placed amongst at least eight persons,
In Njihia v Republic (1986) KLR 422where the complainant stated that he had identified the appellant then at an ID parade in which the appellant and two other suspects had been lined with eleven other persons and in the court during the trial, the Court of Appeal held that the ID parade conducted in this case was not proper because contrary to the ratio of one suspect to eight persons which is stipulated in the Police Force Standing Orders, three suspects had been lined with eleven others. This was mathematically too low a ratio to exclude the chance of random guesswork. The court observed that Police Force Orders require a ratio of one to eight as the minimum; and indeed in many parades the ratio is between one to ten and one to twelve.
ü Such persons should be of similar age, height, general appearance and class of life as himself, If accused is suffering from any disfigurement steps to be taken to ensure that it is not apparent,
Accused should be allowed to take any position on the line up and allowed to change the same after the first identifying witness has left, if he so wishes. This ensures that the suspect does not feel noticeable and for guaranteeing protection to the accused. Care should be exercised that witnesses do not communicate with each other.
· Every unauthorized person should be excluded, Unauthorized persons are likely to interfere with the psychology of the accused person or suspect. Thus this ensures that they feel safe and protected from a likelihood of bias or prejudice.
· If witness desires accused to walk, speak or put on his hat, then he should do so, but the whole parade should do the same, This ensures that the suspect does not have undue advantage over the others. Example where the only person in the parade is the only one wearing a scarf or is the only one asked to speak.
ü The conducting officer to ensure that witness identifies the person without possibility of error,
He should ensure that the witness actually touches the person he identifies;
This ensures certainty and to avoid confusion that is likely to arise due to a misunderstanding. An example is where the police officer understands it differently and records it differently.
ü At termination/during the parade conducting officer should ask suspect if he is satisfied with the manner in which the parade is being/has been conducted and should thereafter record their reply,
In Jimmy Wanjohi Wanjiku v Republic (2004) 2KLR Republic 87 of 2004 the court held that the parade was properly conducted as the accused signed the report indicating that he was satisfied with the manner in which it had been conducted.
ü The witness or witnesses will not see the accused before the parade;
It may be prejudicial to the accused and may undermine the value of the evidential value of the parade. In Ajode v Republic the court held that it would not be proper for a complainant to be a witness at an identification parade two days after the arrest for he had already seen the accused. The court further held that once a witness has seen the suspect before the parade, he will be doing no more than demonstrating his recognition of the suspect and not identifying the suspect.
In Athumani Manzongo & another v Republic (crim App 467 of 2000) the court held that in cases where the witnesses say they do not know the suspects but are able to identify them, the suspects should not be shown to the witnesses immediately after the arrest or while in the police station before they are identified at a properly conducted parade.
In Njuki & 4 others v Republic (Crim App no 67 of 2000) the court held that there were discrepancies because the witness saw the accused persons before the identification parade. In this case, the parade conducted had discrepancies in that the witnesses saw the accused persons before the parade itself was conducted. The court held ‘…the main factor to be considered in such cases is whether the discrepancies are of such nature as would create doubt to the guilt of the accused. However, where the discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook the discrepancies. In Joseph Kamau Kimani v Republic (Crim App 369 of 2004) the court held that the rules of the identification parade were contravened because the witness saw the accused after his arrest.
ü 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;
In Ndiku & 2 others v Republic (Crim App 11 of 2002) the court held that the identification parades were conducted unprocedurally because the police officer suggested to the witness the presence of the accused/suspected person in the parade. In Oluoch v Republic (Crim App 86 of 1984) the court held that in an identification parade it is dangerous to suggest to a witness that the person to be identified is believed to be present at the parade. The value of the parade as evidence is depreciated by this fact. In Simon Kihanya Kairu & another v Republic (2004) the court held that the police officer while introducing the complainant to the parade suggested the presence of the suspect in the parade. This depreciated the value of the parade as evidence.
ü Careful note must be recorded after each witness has left, stating whether witness identified the person and state the circumstances at hand, Comments by accused should be recorded by the conducting officer, especially after he has been identified,
· Parade must be conducted with scrupulous fairness, or else value of the identification parade will be lessened or nullified, This point is well captured in the case of R V Mwango s/o Manaa (1936) 3 EACA 29.
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 has the effect of making the accused part of the process with the ultimate goal of conducting the parade fairly. It also provides him with an opportunity to objection how the parade process was conducted.
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 made when the accused/suspected person is identified;
This is done for the purpose of keeping proper records and to determine the question of positive identification.
Police officers should not make up the parade, unless they are accused.
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 has the effect of making the accused part of the process with the ultimate goal of conducting the parade fairly. It also provides him with an opportunity to objection how the parade process was conducted.
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 made when the accused/suspected person is identified;
This is done for the purpose of keeping proper records and to determine the question of positive identification.
The parade must be conducted with scrupulous fairness; otherwise the value of the identifications as evidence will be lessened or nullified.
DOCK IDENTIFICATION VS IDENTIFICATION PARADES
There is a clear difference between dock identification and identification parades.
In dock identification, a witness or witnesses point out the accused standing at the dock and identifies him/her as the culprit who committed the crime. It is imperative to note that the courts generally avoid convictions based on dock identifications because such evidence without corroboration is of a lesser value or worthless. This was clearly enunciated in the case of Gabriel Njoroge vs Republic where the court held that the dock identification of a suspect is generally worthless unless other evidence is adduced to corroborate it. Similar findings were illustrated in the case of Owen Kimotho Kiarie vs. Republic. Crim App No. 93 of 1983 (unreported)
The courts then sought to elucidate this position further and in the case of Amolo vs. Republic (1991) 2KLR the court explained the rationale for the courts reluctance to accept dock identification without other evidence as follows,
“The reason for the courts reluctance to accept dock identification is part of the wider concept, or principle of law that is not permissible for a party to suggest answers to his own witnesses or, as it sometimes put, to lead his own witness.”
Thus, it is generally believed that if an accused sits in the dock while the witness gives evidence in a criminal case against him undue attention is drawn towards his. His presence there may in certain cases prompt a witness to point him out as the person he identified at the scene of the crime even though he might not be sure of that fact. It is also believed that the accused presence in the dock might suggest to a witness that he is expected to identify him/her as the person who committed the offence. This was particularly discussed in the case of Mwiruri and 2 others vs Republic.
It is important to note that in circumstances where the witness/ complainant personally know the witness, their evidence after dock identifications is admissible in court. However, great care must be taken concerning testimonies of single witnesses. The striking difference between dock identification evidence and identification parade evidence is that the latter carry a lot of weight and are more credible in their admissibility in a court of law. However, it cannot be said that all dock identifications is worthless. The court might base a conviction on such evidence if satisfied that on the facts and circumstances of the case the evidence must be true and if prior thereto the court duly warns itself of the possible danger of mistaken identification.
PRODUCTION OF ID PARADE EVIDENCE
The report filled in by the police officer conducting the parade shall be admitted to court as evidence. This report addresses the issue of; the number of witnesses and members of the parade present, the police officer in charge of the parade, the position of standing of the suspects subsequently identified and any objections raised and if the accused and witness are satisfied with the way the parade was conducted.
The factors discussed earlier in this chapter as those which influence an identification parade process shall be considered by the court. These are factors such as single witness identification among others. Objections raised by the accused during the identification process shall be considered as to their weight and relevance. The cases discussed under the conduct of the identification parade and the issues they raise shall be considered when evidence is being produced.
PROBATIVE VALUE OF IDENTIFICATION PARADE EVIDENCE IN COURT
Once the identification parade is conducted, and the suspect is arraigned in court, the evidence on identification of the suspect produced in court is;
· The testimony of the ID parade officer who conducted the ID parade.
· The production of the ID parade form as exhibit in court
· The evidence of arresting and or investigating officer of the case ( depending on the circumstances of the arrest of the suspect)
· The court will evaluate credibility (demeanor) of the witnesses, the veracity of the evidence (as tested by cross-examination from the defense) in conjunction with all other evidence adduced in relation to the case to conclusively determine;
· The accused person was positively identified ( no mistaken identity)
· The accused person committed the offence charged with.
To do this, the court relies on the often cited case of the case of R vs. Turnbull 1977 QB 224. The Court of Appeal laid down important rules for guidance of trial courts faced with contested identification evidence and to cross check the pre-trial identification procedures are conducted as fairly as possible to avert the possibility of mistaken identity. If there is no identification evidence the Turnbull guidelines will not apply. A witness who has had a proper sight of the culprit’s face and who may be able to make an identification of the suspect, should be invited to attend an identification parade if the police have a suspect available.
Where the identity of the suspect is known, the witness may participate in an identification parade.
In the Turnbull case; Turnbull was convicted of conspiracy to burgle and sentenced to 3 years imprisonment. The appeal raised problems relating to visual identification as he claimed there was mistaken identity. The witness who identified him was alleged to have a fleeting glance. The witnesses described the suspect, bystander and the vehicle the suspects left in. Shortly thereafter, a police officer on duty passed by and recognized Turnbull. The court found the evidence of recognition sufficient and dismissed the appeal. The court went on to state as follows;
“ First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, [the court] should warn itself of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The court should emphasize on the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.
Secondly, [the court] should examine closely the circumstances in which the identification by each witness came to be made.
ü How long did the witness have the accused under observation.
ü At what distance?
ü In what light?
ü Was the observation impeded in any way?
ü Had the witness seen the suspect before?
ü How often?
ü If occasionally, had he any special reason for remembering the accused?
ü How long elapsed between the original observation and the subsequent identification to the police?
ü Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? [first report] “
All these go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused person’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. When in the judgment of [the court], the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance on a longer observation made in difficult conditions, the situation is very different”. The English decision is persuasive and has been considered in the local cases. In Livingstone Kihugo Mwangi Vs Republic C.A 554 of 2004, the appellant complained that identification of PW1 at night in difficult conditions, as the source of light was doubtful. The second issue was that the identification parade was conducted contrary to the Forces Standing Orders.
The court held;
“The circumstances of identification at the scene of crime were clearly unfavourable. It is trite law that identification by a single identifying witness in the circumstances such as those in our present case has to be treated with great caution- especially where the circumstances are not conducive to positive identification” The evidence of PW1 shows that he could not identify all the suspects at the scene. He did not give a description of the appellant or any of the robbers when he reported to the police shortly thereafter”
The identification parade was not conducted in accordance with the Police force standing orders. Although an identification parade was conducted, PW6 testified that the Complainant actually met the accused some days before the identification parade was conducted.
In David Mwita Wanja and 2 Others Vs Republic (CA 117 OF 2005) The appellants contested identification by 3 witnesses at the scene of the crime and the conduct of the identification parade by the 3 witnesses and alleged mistaken identity.
The Court held:
“We have on our part, taken into consideration that this offence was committed at 8 a.m. in broad daylight. We also considered that the appellants approached the Complainant and even exchanged words. In those circumstances we are of the view that the circumstances of identification were good and conducive for identification by the complainant…We are aware that the evidence of a single identification witness needs to be tested with greatest care, we have done so in this case…We are also of the view that the complainant’s ability to identify all 3 appellants in an identification parade held 2 months after the incident lends credence and assurance to the positive identification…”
Miller Wanjala Muchacha Vs Republic (CA 2008) 2KLR The appellant was convicted of robbery with violence c/s 296 (2) Penal Code. The appellant contested the Identification parade on 2 grounds; the witnesses had seen him before the identification parade. The ID parade was not in compliance with Force STANDING ORDERS.
The Court held,
“We have anxiously considered the issue of Identification…..some witnesses who identified the appellant had seen him in an office before the parade. This made the identification doubtful. We note the numbers were below eight (8) as required of the Forces Standing Orders Paragraph 6 (iv) (d).”
CASES
1.David Mwita Wanja and 2 Others Vs Republic (CA 117 OF 2005)
2.Miller Wanjala Muchacha Vs Republic (CA 2008) 2KLR
3.Livingstone Kihugo Mwangi Vs Republic C.A 554 of 2004
4.Ndiku & 2 others v Republic (Crim App 11 of 2002)
5.Ajode v. Republic (2004) 2KLR 81
Credit:
1. http://kenyalaw.org/caselaw/cases/view/38610
2. https://www.alrc.gov.au/publication/uniform-evidence-law-alrc-report-102/13-identification-evidence/identification-parades/
3. https://www.scribd.com/document/353740942/Identification-Parades
