Introduction
The past decade has seen the emergence of ‘drill music’ content increasingly used by the prosecution in criminal trials involving young, black, male defendants accused of gang-related offences.
The drill genre, which is seen as a breakaway from hip hop and rap music, originated in Chicago in 2012 and was swiftly embraced in the UK, in South London in particular. Drill music is defined by its subject matter, embracing the use of drugs and weapons as part of the narrative of everyday urban street life.
The development and increased availability of music and video production technology has enabled amateur drill artists to produce and disseminate their work, posting material on a variety of social media platforms. Such material is freely accessible to police and prosecutors when investigating criminal offences.
Police forces have for some time routinely interrogated the mobile phones of those accused of crime in order to establish association or motive. However, it has now become commonplace for police in cases of gang-related crime to extract drill music videos found on the electronic devices of those under investigation to prove bad character.
When relied on by the prosecution, the argument advanced in support of its admission is that where a suspect accused of murder (for example) is found in possession of music videos which glorify the use of guns, knives, or drugs, this could amount to cogent evidence supportive of guilt.
Discussion
How, then, does the law permit the admission of drill music in the prosecution of gang-related crime?
As with any evidence, for a drill track to be properly placed before a jury, it must be both relevant and admissible to the offence charged.
Let us consider the case where a suspect is accused of murder committed against a background of gang membership and drug dealing. In this example, drill music videos are found by the police on the suspect’s mobile phone.
The content of the video, and any involvement by the suspect in the video, will be critical to the question of relevance.
In the first example, the suspect in question appears in person performing in the drill music clip, delivering lyrics which refer to the killing in question and his knowledge of details of the case.
In the second example, the suspect again appears in the drill music clip, delivering lyrics which describe the use of drugs, guns or violence in the first person. However, in this example, there is no direct link with the murder in question.
In the third example, the suspect does not appear in the clip. The lyrics which glamorise the use of drugs, guns and violence are delivered by a third party not connected to the case in any way.
In example one, the prosecution need not engage the bad character provisions of the Criminal Justice Act 2003 as the drill material will be admissible by virtue of section 98 of that Act. That is to say the content of the drill material “has to do with the alleged facts of the offence with which the defendant is charged or is evidence of misconduct in connection with the investigation or prosecution of that offence.” In example one, the suspect himself is narrating information about the offence and may include material that only someone involved in the offence would be privy to. It would be challenging to argue that the material in question is not relevant or admissible.
In example two, the drill music video is further removed from the facts of the offence but there nevertheless exists a link between the suspect and the type of offence in question. The prosecution might try to avail itself of section 98 and, depending on the circumstances of the case, a judge might well rule that section 98 was engaged. However, the argument for ruling the drill evidence to be inadmissible would be considerably stronger than in example one. The fact that a suspect embraces a genre of music which is menacing in its content is far from necessarily “to do with the offence charged.”
It is example three above which has proved the most controversial. There can be no proper argument that a drill video with contents related to drugs and killings “has to do with the alleged facts of the offence.” The material may relate to a type of offence similar to that charged, but that would be insufficient to engage section 98.
In such circumstances, the prosecution would need to avail itself of the bad character provisions of the 2003 Act. Admissibility would be dependent on the material satisfying one of the gateways of section 101. The most likely gateways relied on would be either section 101(1)(c) “that it is important explanatory evidence”; or 101(1)(d) “that the material is relevant to an important matter in issue between the defendant and the prosecution.”
Section 101(1)(d) permits what is often referred to in shorthand as propensity evidence. The prosecution argues that a defendant listening to music about the stabbing of rival gang members, unrelated to the case, is more likely to involve himself in gang-related violence.
Such an argument may offend against racial stereotyping and often fails to understand the social backdrop to life in urban estates. The same is not routinely said, for example, of those who watch violent films, or play violent video games.
Applications to adduce the content of drill music videos feature disproportionately in criminal trials involving young, black, male defendants. A legitimate concern arises in relation to the proper application of the general principles of the law of evidence regarding the use to which drill music is put. Drill music is essentially a genre embraced by those who are expressing the difficulties of being excluded from parts of modern society.
Historically, the attraction of contemporary music to the young has always been its ability to shock others. Difficult though it is to believe now, Cliff Richard in his heyday was once banned from had having one of his singles broadcast on the radio. More recently, the punk movement was seen as dangerous and subversive in the late 1970s. Drill music is a logical extension of a music genre whose appeal is its shocking content. That is very different from assuming that those who enjoy the music are themselves advocating the use of drugs, guns and violence. Whether the possession of the track constitutes reprehensible conduct on the part of the defendant is perhaps a point that is occasionally overlooked in such applications.
Further, taking the content of the material literally may be both simplistic and unfair.
There is, however, a growing body of academic work on this topic. Most recently, at the CBA Assize Seminar on 14 May 2021, Dr Abenaa Owusu-Bempah (Assistant Professor of Law, LSE, University of London) presented “The Irrelevance of Rap”, drawing upon her academic research and analysis of 30 criminal cases in which rap music was sought to be relied upon by the prosecution. The video of her presentation is available here.
In her Assize presentation, Dr Owusu-Bempah made reference to academic work that suggests that rap music cannot be “taken at face value” (see e.g. Dennis, 2007). Dr Eithne Quinn (University of Manchester), who has acted as an expert witness providing evidence related to rap music, shares concerns regarding such evidence being adduced absent the proper context or being used (deliberately or otherwise) to bolster an otherwise weak case.
Dr Owusu-Bempah also made reference to the recent case of R v Soloman [2019] EWCA Crim 1356 (a case in which the title of a rap track was held to be relevant to the defendant’s state of mind). The court held that although it was relevant it was perhaps of limited weight, commenting that “…the lyrics of songs that people choose to record on their phones will often or perhaps typically have no connection to the factual reality of their own lives.” The court went on to state: “…lyrics of a song do not necessarily or perhaps commonly bear a connection with actual real life events.” The guidance from the Court of Appeal (Criminal Division) is that a nuanced approach to such evidence ought to be taken. The Court in Soloman found that the judge had erred in not directing the jury on the issue of taking the lyrics literally, but ultimately held that this did not render the conviction unsafe.
Gang involvement and gang culture can be a topic in respect of which expert evidence may provide assistance to a jury. The context and interpretation of rap music lyrics often requires an understanding of matters which are outside the scope of a juror’s day-to-day experience. This should not be overlooked either by the prosecution or the defence.
Conclusion
Applications to adduce bad character evidence will inevitably be fact specific. In respect of drill music evidence, it is suggested that the following points merit consideration whether one is instructed by the defence or the prosecution.
Firstly, a proper interrogation of the material and its context must be undertaken. Whether the content is readily understandable or whether it requires analysis by an expert will depend on the material in question.
Secondly, the basis for the admission of the material must be clearly articulated and understood; propensity may be the ‘obvious’ basis for the prosecution to rely upon, but the more tenuous the link between the drill track and the defendant and the offence in question, the more difficult it will be to satisfy the court that the evidence meets the requisite threshold. If it is not propensity that is being relied on, then what is the important matter in issue to which the evidence is relevant?
Thirdly, it is critically important to avoid inadvertent reliance upon stereotypes and in particular eliding drill music with criminal activity. While involvement with drill music may provide some evidence relevant to criminal activity, it will not do so automatically, and caution should be exercised when considering an application to adduce such material.
This continues to be an area in which the law is developing its understanding. Lawyers and judges need to understand the context of drill music and its origins. For a defendant to show an interest in or perform music which describes the culture of urban life and its challenges must never of itself be mistaken for admissible evidence that a defendant is guilty of committing an offence. Such an approach has the capacity to unfairly disadvantage young black defendants. It is only by educating and training those involved in dealing with such material that this unfairness can be avoided.
References
Andrea Dennis, ‘Poetic (in)Justice? Rap Music as Art, Life and Criminal Evidence’ (2007) 31 Columbia Journal of Law & the Arts 1
