Failure to describe a suspect doesn’t annul an identification parade

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By Newton Arori

According to the Black’s Law Dictionary, an identification parade is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. An identification parade is held to enable an eyewitness to identify the suspect whom s/he allegedly saw.

The history of identification parades is English and dates back as far as 1860 when they were instituted as metropolitan police order. The order required that “the police should place a suspect amongst his peers and ask the witness to select the person seen performing the crime”. In Kenya, the rules governing identification parade procedure are to be found in the police force standing orders.

An identification parade is not to be confused with dock identification. Evidentially, an identification parade carries much more weight compared to dock identification (where a witness points out the accused standing at the dock and identifies him/her as the culprit who committed the crime).  In the case of Gabriel Njoroge vs. Republic (1982-1988) KAR 340, the court was emphatic that “the dock identification of a witness is generally worthless unless other evidence is adduced to corroborate it.”

One question that has arisen severally in Kenyan courts is whether it is necessary for a witness to give prior description of a suspect before an identification parade is conducted. In the case of Ntelejo Lokwam vs. Republic (2006) eKLR the High Court stated, “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 be recorded and later produced in evidence. It is on the basis of this first report that an identification parade can later be conducted.”

The above position is, however, not without controversy as several cases indicate. The matter of John Mwangi Kamau vs. Republic (2014) eKLR is one such case. The matter was a second appeal before the Court of Appeal. In the case, the appellant and one other person had been charged with robbery with violence contrary to Section 296 (2) of the Penal Code. An informer had tipped the police as to the whereabouts of the suspects. They were arrested the same day and upon being searched, the appellant was found with a pistol and six rounds of ammunition. Subsequently, an identification parade was conducted where the prosecution witnesses picked the appellant and his co accused as the people who had robbed them. The accused were then arraigned in court and charged. The prosecution contended that three of its witnesses were present at the scene of the crime during the robbery and that they were able to identify the assailants, because the robbery had taken place in broad daylight and the robbers had not covered their faces.

Satisfied that the prosecution had proved its case beyond reasonable doubt, the trial court convicted the accused persons. Aggrieved, the accused appealed to the High Court, where they lost, and then appealed further to the Court of Appeal.

One of the grounds of their appeal was that the identification parade was not preceded with the witnesses giving a description of the assailants. Counsel for the accused submitted that the identification process was flawed for that reason. Justices Alnashir Visram, Martha Koome and Otieno Odek dismissed the appeal and upheld the conviction of the accused persons, holding that the failure of the witnesses to describe the suspects before the identification was conducted did not invalidate the identification parade.

In the case of Nathan Kamau Mugwe vs. Republic (2009) eKLR, the appellant, Nathan kamau Mugwe, was charged with robbery with violence contrary to Section 296 (2) of the Penal Code. The particulars of the charge were that on the material day, the appellant and other persons had robbed one James Mungai Ngumbo of his motor vehicle, a mobile telephone, a mobile charger and a torch. At the trial court, the magistrate heard and recorded evidence from 5 prosecution witnesses, and the appellant gave sworn evidence denying the charge. On the basis of the evidence presented to him by the prosecution witnesses, the trial magistrate convicted the appellant and sentenced him to death. The appellant appealed to the High Court, where the appeal was dismissed and the sentence of death confirmed. Further aggrieved, the appellant appealed to the Court of Appeal, one of the grounds of the appeal being that the witness who identified the appellant at the identification parade had not given a description of the suspect to the police before the parade was conducted.

The circumstances surrounding the case were that on the day of the alleged robbery, the identifying witness was a watchman at the bar where the robbery took place. He swore that when James (the complainant) was in his taxicab, the appellant had approached him and asked him for a vehicle to hire. The witness said he pointed out another vehicle that was available there, but that the appellant insisted he wanted a particular vehicle, which happened to be that of James. The conversation was at night, but the witness said that they talked at a place lit by electric light. Upon the return of James, the appellant went to the bar and informed the appellant. The witness saw the appellant and James drive away after negotiating.

The first prosecution witness, who was James himself, also testified. He swore that he saw the appellant from the time they met and negotiated the fare and was with him up to the place when he was attacked and tied up. The appellant was sitting next to him on the front passenger seat. The trial and first appellate courts were satisfied that James had ample time to see the appellant during the period the two were alone in the vehicle and also at the beginning of the journey, therefore James had no difficulty identifying him at a properly conducted identification parade. On that basis, the Court proceeded to find that the appellant had been properly and correctly identified as the person who hired James at the bar and subsequently robbed him in the company of another person.

The court held thus: “We do not think that failure to describe the person to be identified necessarily renders an otherwise valid parade worthless… all the court said was that the witness ‘should’ be asked. That is obviously a sensible approach… it is not impossible to have a situation in which a witness can tell the police that though he cannot give a description of the person he had seen during the commission of an offence, yet if he (the witness) saw that person again, he would be able to identify him. It would be wrong to deprive such a witness of an opportunity of a properly conducted parade to see if he can identify the person…”

The Court further held that the relevant consideration would be the weight to put on the evidence regarding the identification parade.

Conclusion

Provided the circumstances surrounding the identification exercise indicate that the conditions were favourable for the witness to sufficiently see the suspect during the commission of the offence, the identification parade will be valid. The conditions to be considered were laid down in the English case of Turnbull (1977) QB 224 to be the following:  a) the length of time the accused was observed by the witness b) the distance the witness was from the accused c) the state of light, and d) the length of time elapsed between the original observation and the subsequent identification to the police.

The Court of Appeal of Kenya echoed these views in the case of Mwaura vs. Republic (1987) KLR 645 where it said,  “To satisfy itself as to the correctness of an identification of an accused by one or more witnesses, the court is obliged to consider, among other things, the length of time the witnesses had the accused in observation and what the accused, or each of them, where they are more than one, was doing at the time of the commission of the offence charged, the disposition of the witness in relation to the accused, and the quality of light.”

It would appear that as the current judge-made law stands in Kenya, prior description of a witness before an identification parade is conducted is not a requisite.  At the same time, thorough care must be taken to avert miscarriages of justice.

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