One of the critical aspects in law enforcement is the use of intelligence as an aid to investigations and prosecution of criminal cases.
Intelligence enables law enforcement agencies to establish proactive response to a threat, which may be criminal or otherwise.
Intelligence is the process of interpreting and analysing information to give it a meaning.
The information being analysed must be from a reliable source while the process of analysing the information must be thorough taking into account the relevant laws for proper decisions by the decision makers.
Use of intelligence information
Courts in Kenya are gradually accepting use of intelligence information in preliminary hearing especially in applications relating to bail. In Republic v Ahmad Abolafathi Mohammad & Anor(2013) eKLR the state applied for revision of magistrate court order that granted bail to the accused person.
The state argued that the accused person's admission leading to their arrest was as a result of intelligence reports made the recovery of explosive materials possible. Lady Justice L. A. Achode stated that,
“... recovery of the 15kg of explosive material was made possible by the respondents, and their arrest was as a result of intelligence reports which showed that 100kg of dangerous explosive material had been shipped into the country from Iran through the Port of Mombasa.This lends credence to the intelligence report which indicates that a consignment of 85kg of explosives remains unrecovered and may be accessed and used by the respondents to harm innocent Kenyans.”
Admissibility of intelligence as evidence
Evidence of whatever type must be both relevant and admissible.
To be considered relevant, the evidence must have reasonable tendency that helps proving or disapproving some fact. It needs not make the fact certain but must tend to increase or decrease the likelihood of some fact.
Once admitted as relevant evidence, the judge or magistrate, will determine the appropriate weight to give to a particular piece of evidence. Each piece of evidence is considered material if it is offered to prove a fact that is in dispute in a case. Competent evidence is that evidence that accords with certain traditional notions of reliability.
Intelligence is more useful when it has specific purpose, it is consistent, in clear format and contains all critical information the consumer needs and no superfluous information.
Intelligence plays a critical role as an aid to law enforcement investigations and possible prosecution. Intelligence officers working closely with law enforcement officers is a valuable tool in converting intelligence to evidence to present in a court of law.
As was observed by the Supreme Court of Kenya in Republic v Ahmad Abolfathi Mohammed & another (2019) eKLR;
“[81] … use of intelligence or informers’ reports is standard and common practice. The Police are not obliged to declare their informers as that will hamper crime detection.”
Protection of intelligence during court proceedings
Article 50(2)(j) of the Constitution provides that an accused person has the right to have reasonable access to evidence that prosecution intends to rely on. The main purpose for disclosure of evidence is to prevent trial by ambush.
Based on the decision in the case of Juma and others v the AG (2003) ACHRLR 179 the prosecution with leave of court may not disclose certain information based on public interest test, considering sensitivity of the information in terms of national security or where disclosure may lead to commission of other offences.
Conclusion
Although there exist authorities on protection of sensitive material including intelligence, there is an urgent need to have clear legislative guidelines on the same. Legislative reform giving guidance on utilising sensitive information including intelligence will go a long way in deterring criminal activities.
Legislature should ensure that witnesses from the intelligence services are offered clear legal protection to facilitate and encourage them to testify in court.
The constitutional and statutory powers of the National Police Service are wide ranging and if properly utilised, intelligence gathered can be extremely useful in dealing with various acts of criminality. Therefore, there is also a need to encourage continuous inter-agency collaboration.
DISCLAIMER: The writer is the senior principal prosecution counsel, Office of the Director of Public Prosecutions. The views and opinions expressed in this article are his own, not those of his employer
