Sniffer dogs and tracker dogs play a valuable role in the detection of contraband and the routing out of suspects that have departed a crime scene. Particular publicity is attached to their role – Africa Wildlife Foundation (AWF) are well known for their “Canines for Conservation Programme’, deploying dogs and their handlers to key airports and seaports throughout the continent, and in wildlife agencies across the world, tracker dogs are part and parcel of the arsenal of frontline protection.
However, there does appear to be, for some, a failure to ‘think trial’ and this is evidenced by cases being thrown out of court where the crucial evidence of a tracker dog is not established to the standard required. In north central Kenya, Space for Giants have seen first hand the fall out of such cases and are working with dog teams in Laikipia to get to grips with the requirements under the law to ensure that valuable evidence is not excluded for want of a solid evidential foundation.
This particularly comes up when tracker dogs have followed a scent from a scene of crime to a suspect some distance away, but sniffer dogs used at ports and borders may also deliver evidence that could be vulnerable to being excluded at trial.
Case law from Kenya, UK, USA and Uganda are a good starting point for the African continent but each country’s legal precedents should be carefully examined alongside statutory provisions on expert and opinion evidence. However, general principles that should apply across the board, can be extracted. Starting with the UK, the Court of Appeal case of Pieterson 1994 stated the need for evidence of reliability and the need for caution given that a dog cannot be cross-examined as to his opinion. Evidence needs to given of reliability – and this is important – by demonstrating accuracy from tests conducted in controlled conditions i.e. regular drills with the dog are recorded in detail. The controlled tests assessment is important because the alternative might be to assert that Fido has ‘x’ number of convictions under his dog collar. This, in my view, risks inviting a trial within a trial as unrelated cases are put under the microscope to assess the weight of canine evidence in cases where facts will vary widely and of course, an enquiry as to whether any of those cases are under appeal, and if so, why.
In Kenya, the court of appeal cases of Maina v the Republic , Kibuthi & Others  and high court cases of Weru  and Gikundi  all help to set out a roadmap to admissibility. Organisations providing canine capability need to be mindful of the end goal – a conviction.
So what is needed? A guidance to be issued later this year by AWF and Space for Giants, is currently being ‘test driven’ by various units across the continent. This is to ensure that the guidance is practical and can be easily be applied by non-lawyers i.e. dog handlers and supervisors of such units before formal issue later in the year. Dog files need to be regularly updated with information that will be relevant to admissibility. Handlers and dog masters also need to be trained in statement writing and oral testimony.
Without this greater focus on the end game the predictable result is that good cases get lost and criminals walk away.
If you are part of a dog unit and interested in taking part in a trial of the guidelines, then get in touch with firstname.lastname@example.org