What Does The Case Law Tell Us

What Does The Case Law Tell Us Presented by: Dr. Owusu-Bempah Date: 11 April 2022 Case analysis - An exploration of the admissibility and use of rap lyrics and music videos as evidence in criminal proceedings in England and Wales - A doctrinal analysis of 38 reported cases Profile of cases - Cases were reported between 2005 and December 2020. The most recent 16 cases were reported between 2018 and 2020 - In 32 cases, the defendant(s) had been convicted of offences involving - weapons and/or violence - In 27 cases, the offences were committed and tried in London - The vast majority of defendants were young, with most in their teens - The evidence was used exclusively against male defendants Rap, race and gangs - Lyrics and participation in videos was used almost exclusively as evidence against Black people - Approximately half of the cases concerned offences committed by way of joint enterprise - 23 cases were said to be gang related. Lyrics or videos were often used as evidence of gang association which was then used to link the defendant to a joint enterprise and/or as evidence to prove other issues in the case • E.g. R v Sode [2017] EWCA Crim 705; R v Awoyemi [2016] EWCA Crim 668 - What is a 'gang'? - Police officers as gang experts • - Myers v Queen [2015] UKSC 40 Police officers as rap experts • Are police officers qualified?  'Obviously if someone with no training related to rap music takes the stand as an expert and proceeds to offer expert testimony related to rap lyrics or videos, that testimony is going to be wildly unreliable' (Erik Nielson and Andrea L Dennis, Rap on Trial: Race, Lyrics and Guilt in America (The New Press, New York, 2019) p.137) • Can they be impartial? Bad character evidence - Lyrics and videos were adduced as bad character evidence under s. 101(1) the Criminal Justice Act 2003 or, in some cases, as evidence 'to do with' the alleged facts of the offence, under s.98 - The evidence was most often adduced under gateway d of the 2003 Act, as relevant to an important matter in issue between the defendant and the prosecution. The matter in issue was most commonly: intention; motive; or to rebut a defense, such as innocent presence Relevance - Only one successful challenge to the admission of rap music as evidence against a defendant • - R v Alimi [2014] EWCA Crim 2412 Little consideration or analysis of factors that affect the relevance of the material • Age of material; role of D; conventions of the genre • RvO [2010] EWCA Crim 2985; R v Sode [2017] EWCA Crim 705; R v Soloman [2019] EWCA Crim 1356 Prejudicial effect - Little consideration of the prejudicial effect of rap music, with jurors being trusted to attach proper weight to the evidence, even without directions on the broader context (e.g. cultural and musical conventions) - The Court of Appeal has taken the view that: • 'It is our experience that, as a general rule, trial judges are acutely conscious of the dangers of admitting gang affiliation evidence and take great care to ensure that bad character evidence is admitted through the appropriate gateway.' (R v Awoyemi [2016] EWCA Crim668 at [36]) Summary - Three main concerns: • The deliberate targeting of rap music and its use predominantly against Black young men and boys to amplify existing stereotypes about Black males as criminals • The way in which the courts determine admissibility, with little scrutiny of the context of the evidence or the various factors that can affect its probative value (e.g. age of the material, specificity, the defendant's role) • The treatment of rap as 'bad character evidence'. Labelling it as 'reprehensible' and conflating the defendant's art with their character indicates a lack of understanding of the genre and an unwillingness to treat rap as an art form.