Written By: Dr. Tunde Okewale and contribution from Lily Kalati
The latest instalment of Law, Schooled follows The Guardian editorial discussing the use of music lyrics and recordings being used to build evidence in criminal cases going to trial. Urban Lawyers founder and Barrister, Dr. Tunde Okewale MBE broaches the topic further with an in depth look at how Drill and Rap music is treated within the Criminal Justice System and the concerns around the bias surrounding it….
Rap music often ends up being presented in court as ‘bad character evidence.’ The Criminal Justice Act 2003 defines bad character evidence as evidence of, or of a disposition towards, ‘misconduct’ – which means the commission of an offence or other reprehensible behaviour. Whilst the writing or performance of certain lyrics can be considered an offence, such as the inclusion of specific threats or inciting violence, in the cases that were analysed, the lyrics and music videos themselves were not the offence. Instead, rap lyrics and participation in music videos were presented as reprehensible behaviour to help prove that the defendant committed a crime, often involving firearms, serious assault, or even murder.
In the UK courts, there is a concerning trend towards popular rappers like Unknown T, Loski and LD (Scribz) 67 have been accused of using their own music against them in criminal trials. This is often because their rap lyrics and music videos are easily available on phones, social media, and YouTube, making it easy for prosecutors to use them as evidence. The situation becomes even more complicated because there is a growing worry and fear around drill music, which is a subgenre of hip-hop thus making such instances even more difficult for the rappers facing these trials.
It is essential to understand that whilst music and videos are sometimes used as evidence in these cases, they are not the only pieces of evidence presented. However, in some instances, there seems to be very little other evidence against the accused. The Crown Prosecution Service guidelines suggest that gangs are using drill music and social media to promote gang culture and violence, which is concerning.
The research also reveals a troubling pattern where police officers act as “experts” in court, explaining to the jury what officers interpret as the ‘real’ meaning behind the accused rapper’s lyrics, hand gestures, and even gang membership. This practice has faced criticism from human rights charity Justice, which views it as the prosecution acting as its own witness.
Further evidence of this has been shown in the Met Police’s actions in requesting the removal of drill/rap music videos from YouTube since September 2020
(https://www.met.police.uk/foi-ai/metropolitan-police/d/february-2022/music-videos-removed-from-youtube-september2020/)
Most cases where rap is used as evidence involves young men, with almost half of the defendants being under 18. Prosecutors often rely on a gang narrative and sometimes employ controversial joint enterprise laws. Additionally, they may introduce evidence of the defendant’s past offences or simply their “disposition towards misconduct.”
There are arguments that rap and drill lyrics should be banned in the courtroom. Some question whether first-person lyrics should be taken as confessions, or if merely appearing in a music video automatically makes someone a gang member. These concerns highlight the unfair targeting of rap, drill, and grime artists, reinforcing racist stereotypes of black criminality when compared to other forms of music.
Let us consider a theoretical case where a young person is accused of murder and is associated with gang activity and drug dealing. The police find drill music videos on a suspect’s phone. The relevance of the video content and the suspect’s involvement in it are crucial factors towards the outcome of the case.
In the first example, the young person appears in the drill music video, rapping about the murder and having knowledge of specific details related to the case. In this case, the content of the video can be directly linked to the alleged offence, making it admissible under the Criminal Justice Act 2003.
In the second example, the young person again appears in the drill music video, rapping about drugs, guns, or violence, but there is no direct link to the murder in question. The prosecution may try to use section 98 of the Criminal Justice Act 2003, but arguing for the drill evidence to be admissible would be weaker in this case.
In the third example, the suspect doesn’t appear in the video. The lyrics glorify drugs and violence but have no connection to the alleged offence. To use this video as evidence, the prosecution would need to rely on the bad character provisions of the 2003 Act.
Section 101(1)(d) Criminal Justice Act 2003 allows the use of propensity evidence, arguing that the defendant listening to music about gang violence is more likely to engage in such behaviour. However, this approach can raise concerns about racial stereotyping and misunderstand the social context in urban areas. Propensity means a tendency or a likelihood of someone doing something based on their past behaviour or actions. If you were to imagine you have a friend who loves playing basketball and is really good at it. If someone were to ask you if your friend is likely to play basketball in the future, you are likely to say “yes” because they have shown a propensity or a strong tendency to play basketball based on what they’ve done in the past. So, when we talk about propensity evidence in a court case, it means showing what someone has done before to help decide if they might have done something similar in the current situation.
Applications to use drill music videos as evidence often involve young, black, male defendants disproportionately. It raises concerns about how the law of evidence is applied to drill music. Drill music is a genre expressing the challenges faced by those excluded from parts of society, and its shocking content is part of its appeal to young people. Songs, including rap music, often explore complex emotions and social issues. They may use vivid imagery, including violent or controversial content, to create a message or effect. Treating artistic expression as a literal representation of criminal intent overlooks the broader artistic and social context. The music genre in itself offers a voice to a marginalised group within society, allowing them to document the reality of the communities within which they live, or have lived.
Given these concerns, it is crucial to reconsider how gang evidence, including music videos, is used in court. Juries should exercise caution when considering flimsy assertions about rap music and its alleged connection to criminal behaviour. The current approach poses a risk of potential miscarriages of justice. There is an urgent need for a more rigorous and informed way of handling these cases to ensure fairness for everyone involved.
Eithne Quinn, a professor of cultural studies at the University of Manchester and the lead on the Prosecuting Rap project, emphasizes the role of music in opening a pathway to conviction for UK police and prosecutors. She is particularly worried about the high number of young defendants involved in these cases, as they are often drawn into rap-related charges despite being connected to only one principal offence.
In drill, performers sometimes taunt others and reference specific instances of real-world violence in their verses, which can be callous. However, even in these cases, it remains challenging to directly prove that such wordplay leads to actual violence. Critics argue that rap is often introduced as a way to sprinkle prejudice throughout the proceedings.
‘A song is a form of creative expression, and penalizing someone solely based on their lyrics would raise serious concerns about censorship and infringing upon the artist’s constitutional rights. Are violent lyrics any different to violent video games or films?’ – Lily Kalati (Urban Lawyers)
Given these concerns, it is essential to seriously consider how gang evidence, including music videos, is scrutinised in court. The current use of musical preferences to infer criminality opens the door to potential miscarriages of justice.