The Police Form No. 156 pursuant to Force Standing Orders issued by the Commissioner of Police under Section 5 of the Police Act Cap 5 of the Laws of Kenya which is invariably used for the conduct of identification parades provide for this procedure in criminal law.
1. DEFINITION
An identification parade (herein after ID Parade) refers to a procedure in criminal law where a group of people with similar characteristics who must be at least 8 in number including the one suspected of the crime, are assembled to discover whether a witness can identify the suspect whom they allegedly saw during the commission of a crime and whom they had previously described in sufficient detail to the police.
In Njihia v Republic [1]where 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.
2. 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 R – Vs – Mwango[2], 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- Vs Republic[3], 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:
a) 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[4]. 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 [5]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.
b) They are held to facilitate due process which is a fundamental requirement in criminal law.
Section 77 of the Constitution 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[6] 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.
3. PROCEDURE
As stated above, the procedure of carrying out an ID parade is clearly legislated and the same must be followed to the letter failure to which an ID parade will be a held by the court to be a nullity as it will have flouted the accused person’s rights.
The Police Force Standing Orders provide the procedure of conducting an identification parade as follows:
i. The suspected person will always be informed of the reason for the parade and that he may have an advocate or friend present when the parade takes place[7].
In Ssesanga Stephen Vs Uganda[8], the Court held that the suspect has a legal right to be informed and also inform his lawyer that an ID parade is being conducted. It held that the right of the accused to be informed that he could have his lawyer present was mandatory and failure to inform him would be fatal to the parade.
ii. The police officer in charge of the case should not conduct the parade though he may be present[9];
This is because the rules require that an independent person should be present to take care of the rights of the suspect. Another officer other than the one in charge should therefore have conduct of the parade.
iii. The witness or witnesses should describe the accused person prior to the parade being conducted.
The courts have held that the witness should not merely state “I will be able to identify the accused if I see him again”. They should actually give an adequate description of the accused. This is what will inform the police on whom to include in the parade as these ought to be persons of similar appearance with the suspect.
In Ajode vs Republic, the court of appeal held that it is trite law that before an ID parade is conducted and for it to be properly conducted, the witness should be asked to give a fair description of the accused and the police should then conduct a fair parade based on this description.
iv. The witness or witnesses should not see the accused before the parade[10].
In Ajode vs Republic it was held that where the witness saw the accused outside the police station prior to the parade being conducted, his identification of the accused in the parade was valueless as he was demonstrating recognition as opposed to identification. Similarly in Omar v Republic[11] where the appellant was charged with three offences of capital robbery, the fact that the accused had been consistent throughout the trial in saying that the witnesses saw him at Webuye and Eldoret Police Stations before the parade and the lead inspector in his evidence stated that the Appellant had complained of this fact, the parade being the foundation of the identification of the Appellant failed for it was flawed by this reason. As there was no other evidence of identification, the appellant’s conviction was quashed and his conviction set aside.
However in Njuki & 4 others Vs Republic the Court of Appeal comprising Gicheru, Bosire and O’Kubasu JJA’s held that although there were discrepancies in the conduct of the parade as the witness saw the accused persons before it was conducted, the main factor to be considered ion such a case was whether the discrepancies are of such a nature as to create doubt in the guilt of the accused. Where the discrepancies were relatively minor they could be overlooked.
v. The suspected person will be placed among at least eight persons of similar appearance, e.g. in age, height, general appearance and class of life as the suspected person. If the suspected person is suffering from a disfigurement, steps should be taken to ensure that it not especially apparent[12];
In Mburu & Another v Republic[13] , the fact that it was conceded, even by the prosecution, that the second accused was the only person in the parade with a visible wounded face and swollen eye, his parade was improperly conducted and his identification was thus valueless.
vi. The suspected person will be allowed to take any position he chooses and will be allowed to change his position after each identifying witness has left, if he so desires[14];
vii. 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[15];
viii. Where the witness is identifying more than one suspect, the members of the ID parade should not be similar i.e. the parade should always contain new members whom the witness has not seen before.
In Mburu & Another v Republic the court of appeal held that in cases involving multiple suspects, multiple identification parades must be held. It is improper to line up the same persons in more than one parade. Because the forms indicate that the parade of the second accused was conducted on ten minutes after the parade in respect of Mburu was conducted and that the same members of the parade were used on both occasions and it was held that the ID parade of the second accused was valueless and his conviction was quashed and his sentence set aside.
ix. Care should be taken to ensure that witnesses do not communicate with each other[16];
x. Every unauthorized person must be excluded[17];
xi. If the witness desires to see the suspected person walk, hear him speak, see him with his hat on or off, this should be done but the whole parade should be asked to do so[18];
xii. The witness must identify the suspected person by touching him[19];
xiii. At the end of the parade the conducting officer should ask the suspected person if he is satisfied that the parade has been conducted in a fair manner and make a note of his reply[20]. The procedure is often to have the accused sign the form of the ID parade to this effect.
xiv. A note must be made after each witness leaves the parade recording whether he identified the suspected person and in what circumstances[21];
xv. The conducting officer must record any comment made by the suspected person during the parade particularly comments made when the suspected person is identified[22];
xvi. The parade must be conducted with scrupulous fairness; otherwise the value of the identification as evidence will be lessened or nullified[23].
In Mburu & Another v Republic[24] the court of appeal considered this rule and stated thus “The same issue recently arose in David Mwita Wanja & 2 others v R[25], and this Court stated as follows: -
“The purpose for, and the manner in which, identification parades ought to be conducted have been the subject matter of many decisions of this court over the years and it is worrying that officers who are charged with the task of criminal investigations do not appear to get it right. As long ago as 1936, the predecessor of this Court emphasized that the value of identification as evidence would depreciate considerably unless an identification parade was held with scrupulous fairness and in accordance with the instructions contained in Police Force Standing Orders. See R v Mwango s/oManaa (1936) 3 EACA 29.
xvii. The identification parades should be conducted with much privacy as possible and should not, unless unavoidable, be held in view of the public. They should be held in an enclosed compound or yard from which all spectators and unauthorized persons have been excluded[26].
xviii. It is the duty of the magistrate to ensure that where a police officer gives evidence of an identification parade, the parade was conducted in accordance with the above rules.
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