US rap artists are backing legislation to keep lyrics out of courtrooms –is it time for UK artists to do the same?

14 March 2022

In January 2022, news broke last month that megastars Jay-Z, Meek Mill, Big Sean, Kelly Rowland and Fat Joe (among others) were supporting the introduction of a New York state law that aims to prevent the prosecution using rap lyrics in criminal trials.

The Bill titled ‘Rap Music on Trial’ (Senate Bill S7527) was initially introduced by Democratic Senators Brad Hoylman and Jamaal Bailey in November 2021. In January 2022, it passed through the Senate Codes Committee, which marks its first step towards getting a full vote on the State Senate floor.  You can follow its progress here.

The summary of the Bill is as follows:

‘[The Bill] establishes an assumption of the inadmissibility of evidence of a defendant's creative or artistic expression against such defendant in a criminal proceeding; requires the proffering party to affirmatively prove that the evidence is admissible by clear and convincing evidence.’

A long list of music industry heavyweights publically signed a letter to state law makers, urging them to make the proposed bill a state law.   

Why is this important?

The relevance of lyrics in criminal trials has been a hot topic in recent years as there is a growing body of evidence which shows that the use of rap lyrics in criminal trials can “activate bias” in potential jurors.

In both the UK and the US, rap music has long been accused of fuelling violent crime and the media on both sides of the Atlantic has often drawn a link between the creation and production of rap music and criminality.  There are several issues with lyrics or music videos being used in criminal trials, including that jurors are often not familiar with the exaggerated and fictional narratives which are common in the rap genre. Various studies have examined this issue in the US, and they strongly suggest that the use of rap evidence is ‘highly prejudicial’ because jurors view rap more negatively than other music genres. 

The letter signed by Jay-Z and others stated: ‘“Rather than acknowledge rap music as a form of artistic expression, police and prosecutors argue that the lyrics should be interpreted literally… even though the genre is rooted in a long tradition of storytelling that privileges figurative language, is steeped in hyperbole, and employs all of the same poetic devices we find in more traditional works of poetry.”  

This proposed Bill would set a higher bar for prosecutors, compelling them to provide ‘clear and convincing’ evidence that that the Defendant’s creative expression is literal, rather than figurative and fictional.

Is this an issue in the UK?

We have written previously about the recent increase of the use of rap music, specifically drill music, as evidence in UK courts (see here).   Prosecutors in the UK  introduce the creation and production of Drill music as evidence in criminal proceedings on the basis that lyrics or an appearance in a music video can, they assert, amount to a confession, a threat, prove gang affiliation or show a propensity for violence.

The racial disparity in the way the prosecution seek to [deploy/adduce] the use of such lyrics is stark. Research by leading academic Abenaa Owusu-Bempah, an Associate Professor of criminal law and criminal evidence at the London School of Economics (LSE), has found that drill lyrics and music videos have been used “almost exclusively as evidence against black young men and boys accused of serious offences in urban areas – usually London.”

There are a number of issues with how lyrics are being utilised by the prosecution, perhaps most worryingly when it is presented as ‘bad character’ evidence. This effectively means evidence of, or evidence of a disposition towards, ‘misconduct’ or other behaviour, other than evidence concerning the alleged offence.  Prosecution references to the fact that an individual has created drill music or simply appeared in a music video as evidence of ‘misconduct’ demonises the art form and conflates this expression of black youth culture with serious offending.

The Human Rights charity JUSTICE released an important report last year which touched on this topic (here). It noted that the use of Drill as evidence of bad character ‘purports to suggest that a musical genre unique to a certain demographic is inherently dangerous and criminal, a standard not applied to any other music genre or art form[emphasis added].’  

Drill artists have also been targeted by prosecutors in other ways, including by the imposition of Criminal Behaviour Orders (CBOs).  Several high profile drill artists have received CBOs which prevent them rapping about certain topics or performing certain songs.   This includes one of the most famous rappers on the drill music scene, Digga D, who was made subject to a CBO following a trial where jurors were played videos of his lyrics. The CBO imposed required him to share the lyrics of any new material with the police and not publish any music that “incite[d] violence”.

Should UK artists be speaking up too?

Parts of the UK rap scene have spoken up on this issue, notably high profile rap duo Krept and Konan who publically accused the Crown Prosecution Service of penalising drill musicians and launched a petition calling on the CPS to stop using criminal law to silence rappers.

The continued use of rap lyrics in trials and imposition of CBOs on rap artists clearly targets a group of predominantly black children and young people who we know continue to be discriminated against at every stage of our justice system.

UK rap artists of all genres – particularly grime and drill - have smashed into the mainstream in recent years (with Stormzy headlining Glastonbury no less). It is clear the UK rap scene is not going anywhere will continue to be a positive outlet for so many young people who otherwise would not have a voice. Throughout history, artistic expression and story-telling have tackled violence from Shakespeare to Nick Cave to Digga D. In a criminal justice system that is institutionally racist we should be concerned about the practical impact of any attempts to use art to criminalise individuals because it will only serve to increase the pre-existing racial disparity in the system. Now is the time for some of the biggest names in UK music (of all genres) to use their platform to speak up on this issue and create real change by campaigning to stop this discriminatory practice. 

FURTHER INFORMATION

For further information on issues raised within this blog, please contact a member of our criminal team.

ABOUT THE AUTHOR

Maeve Keenan is an Associate in the Criminal Litigation team. She has represented clients on a wide range of general crime matters including road traffic, public order, allegations of serious violence and both historical and current sexual offences. She is instructed on cases ranging from the initial stages of criminal investigations through to trials, including working on a number of Crown Court matters since qualification.

Áine Kervick is an associate in our Criminal Litigation team. She has a particular interest in the international dimension of criminal cases and advises individuals in respect of extradition requests. She is also experienced in acting for individuals in internal investigations with a focus on legal professional privilege in criminal investigations and has written a number of articles on the subject.

 

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