Picture credit: Hollie Adams/Getty Images
Artillery Row

Drill in the dock

It can be legitimate to use music as evidence in criminal trials

On Thursday 30 November, The Times reported on calls to restrict the use of rap music as evidence against defendants in criminal trials. Art Not Evidence, a campaign group, claimed that the use of rap, and more particularly drill, as evidence was racially discriminatory and “irrelevant, unreliable and highly prejudicial” to defendants. The use of such music in trials, it said, stifled creativity. In an open letter, the group called on the government to limit the music’s admissibility. The group also believes that police officers should not be used as expert witnesses in giving opinions on rap in respect of defendants. The Labour MP Nadia Whittome, who has written about the issue in rather vague terms, will apparently be introducing legislation this year. 

The academics and lawyers who support Art Not Evidence overstate their case. When examining cases in the Court of Appeal where rap is mentioned, it is clear that the evidence is often relevant in proving an issue at trial. While that evidence may be prejudicial, its probative value is not outweighed by the prejudicial effect. Further, fears about the prejudicial effect of the evidence may be remedied by careful directions to the jury about the use to which the evidence may be put. 

Drill, a subgenre of rap, has appeared more frequently in the courts in recent years. First emerging in Chicago in the 2010s, it became popular in London and increasingly so across the UK. The subgenre is mostly associated with young black men. The lyrics to this type of music tend to celebrate violence and weapons. It is associated with gangs and gang rivalry. As such, the police have linked drill to the surge of violent crime in London. Three points should be taken into account when assessing its value as evidence, however. First, its appeal is not exclusive to gangs. Drill has a wide audience and can be a lucrative enterprise. Second, its lyrics may sometimes be hyperbolic or even entirely fictional. Third, those participating in rap videos may be peripheral.  

In order to understand the legal context in relation to calls for reform, the principles of the law of evidence should be understood. Under James Bradley Thayer’s influential view, evidence which is relevant and not subject to exclusionary rules is admissible. In DPP v Kilbourne, Lord Simon explained that: 

Evidence is relevant if it is logically probative or disprobative of some matter which requires proof […] It is sufficient to say, even at the risk of etymological tautology, that relevant (i.e., logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable. 

In R v Robinson [2005] EWCA Crim 1940, Smith LJ added in respect of relevance and weight that, “if the evidence is such that a jury properly warned could place some weight on it, it should be admitted”. Accordingly, if rap has no relevance to what is in issue, or if a jury could place no weight on it, it should not be admitted. 

In many cases, rap videos are relevant. By way of illustration, in R v Rashid, the appellants were convicted of, among other offences, conspiracy to possess a firearm with intent to endanger life. Two of the appellants had been observed by the police opening and leaning into a VW Golf, whilst another was acting as a lookout. When the police searched the vehicle, they found a double-barrelled sawn-off shotgun, a loaded revolver and ammunition. The prosecution’s case was that the appellants were part of a gang known as The Beckton Boys or ACG (‘Anyone Can Go’), which was involved in violence against other gangs in the area. Music videos in which the appellants had appeared were admitted by the judge. The judge at trial directed the jury as follows: 

PC Saban gave evidence about the Beckton Boys in E6 or ACG, and his knowledge of their activities. He believed all three defendants were, in his opinion, a member of the gang. He spoke of the clothing worn by gang members, how they dressed and act. He accepted that they were involved in making music videos but said in his view these were not simply made for music lovers to enjoy, but because of the nature of the lyrics and the gestures used, in his view they were made to incite violence. [Emphasis added] 

Evidence of gang membership, therefore, would be important to prove “intent to endanger life” as part of the offence, as well as rebutting a defence of innocent presence by the appellants. While the videos were not direct evidence, they did help prove a matter at issue in the trial on which the jury could place some weight. 

Baroness Chakrabarti, a Labour peer, was quoted in The Times as saying that, “To infer criminality from the consumption of culture is as racist as it is foolish. I am no more a gangster for enjoying mafia movies than I am a terrorist when I listen to rebel songs”. This misses the uses to which the evidence is put. The majority of the reported cases do not introduce evidence that a defendant merely listened to rap music. Rashid, for instance, shows that the evidence of taking part in videos was relevant to gang membership. In R v Heslop, lyrics written by one of the appellants were used in a murder trial. Those lyrics were said to demonstrate gang activity and violent rivalry with other gangs. 

One case closer to Chakrabarti’s example is  R v Soloman [2019] EWCA Crim 1356. Yet, even that case does not follow Chakrabarti’s point, since the appellant was not merely listening to the music. The appellant had been convicted of possessing a firearm with intent to endanger life. The prosecution case was that he was selling firearms. Lyrics on his phone found by the police which said, “sold guns to str8 killers”, were admitted as evidence because they showed the state of mind of the defendant. While the lyrics were a matter to which the jury should attach less weight, since it might have been of peripheral interest to the appellant, the judge could have dealt with the issue through directing the jury properly. The evidence, of course, was one part of a case where bulk of the evidence was capable of having significantly more weight attached to it. 

An academic in The Times article also asserts that, “No other form of art is used in this way and no other demographic has their creative expression conflated with their character”. Yet, this misses the point that this music is typically explicitly associated with gangs and gang crime. This has real world consequences. Comparisons between drill and Tom Jones or Johnny Cash songs miss this point. The connection between the lyrics,  gangs and violence is not merely fanciful. Additionally, the bad character provisions in the Criminal Justice Act 2003 were designed to widen the use of this evidence. 

Critics of the use of drill have asserted that, even if it is relevant, it should be excluded due to its prejudicial nature under section 78 of the Police and Criminal Evidence Act 1984. Under that provision: 

court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.  

The same language is used also in section 101(3) of the Criminal Justice Act. The “such an adverse effect on the fairness of the proceedings” element means that section 78 is not always easy to meet. It is difficult to see how admitting drill lyrics could have such an effect in most cases. The degree of prejudice will not be major and can be dealt with by judicial directions to the jury. A judge should direct juries to be cautious in the use to which they put the evidence. They should be reminded of the relevance of the evidence and the weight that could be attached to it. They should not rely on the evidence alone to convict. 

Ultimately, drill music can be relevant to an issue in a trial, and may have probative value. It would be a mistake to go further in restricting its admittance. Judges may already deal with irrelevant and prejudicial evidence under the law as it currently stands. The Art Not Evidence and Nadia Whittome campaign ignores the very reasonable uses of such evidence in criminal trials.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover