Rap on trial: Why the UK must stop treating lyrics as evidence

The campaigning group Art Not Evidence recently coordinated a letter to the UK justice secretary, signed by more than 60 leading figures from the worlds of music, culture and law, calling on the government to restrict the use of artistic expression as evidence in criminal trials. The misrepresentation of rap lyrics and videos in court as proof of criminality is a practice steeped in racial stereotypes, contributing to wrongful convictions and disproportionately affecting young Black men. Among the signatories was Dr Lambros Fatsis, senior lecturer in criminology at City, University of London, and author of Policing the Beats: Black Music, Racism and Criminal Injustice, which examines how Black music cultures are surveilled and criminalised. Here, Fatsis outlines the themes covered in the book and why the law needs changing.

UK drill music – not unlike earlier rap subgenres such as grime – is routinely policed as a symbol of trouble and a source of danger, through media representations and legal penal tactics that approach it as a ‘criminally minded’ and ‘gang-affiliated’ enterprise that speaks volumes about the defendant’s ‘bad character’. Stripping it of its artistic nature and ignoring its performative conventions, police, prosecutors and judges target drill as literal, autobiographical testimony, adducing lyrics, videos and still images as ‘evidence’ of criminal wrongdoing, thereby putting an entire music genre on trial.

Written against the backdrop of such punitive fervour, Policing the Beats examines how drill enters Britain’s courtrooms – exposing the legal arsenal that criminalises rap(pers), while highlighting the discriminatory logic that has made racist criminalisation of Black and Afrodiasporic music genres possible in the first place, from the era of colonial slavery to the present day.

 

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Instead of walking readers through a long shopping list of how ‘the law’ makes crimes out of rhymes – which the book dissects in detail – what follows narrates a fictional story that illustrates how drill becomes criminalised. But it is fictional in form alone. The protagonist may not exist and their story is a collage of the possible ways in which drill artists can be, and are, criminalised. Yet it remains a factual (re)presentation of how drill music lyrics and videos are (mis)treated and certainly (mis)interpreted as evidence of bad character, as a justification for joint enterprise prosecutions, and as the basis for imposing gang injunctions and court orders on rappers who have the audacity to behave as the protagonist of our story does – by making music that is perceived and pursued as anything but.

Imagine you are a young (teenage) rapper who bears witness to, or is fascinated by, stories of gang feuds, postcode rivalries, ‘criminal’ lifestyles and violence. You are driven to write lyrics, make beats and shoot videos that explore such themes through the medium of rap, with the added bonus of a successful career in music if your creative output attracts enough followers and reaches critical mass. You create an account on YouTube, upload your video and hope for the best. Meanwhile, dedicated teams of police officers trawl the web in search of ‘gang-related music linked to serious violence’ and find your video. Hearing you name an incident, a person and a place in hostile and confrontational ways – as is common in most rap subgenres since 90s gangsta rap – they add your track to a gangs database on the grounds that you associate with known gang members, people with whom you might have family or friendship ties. The officers in question then debate whether they should ask YouTube to remove your track and approach radio stations to forbid them from playing your music.

They are also toying with the idea of applying for a court order that would force you to inform the police 24 hours in advance of your intention to publish any videos online, while also demanding you give them a 48-hour warning of the date and locations of any planned live performance. The more they brainstorm, the more they like this idea and decide to also prevent you from associating with certain people, entering designated areas, wearing hoods, or using social media and unregistered mobile phones. If they go ahead with this decision and you don’t comply, you are committing a serious offence. Meanwhile, you become better known and more confident in your art and create more tunes reflecting life in your area. 

As is canonical in your genre, you shoot videos featuring more than three people, who display the logo of your newly created rap collective and perform in a back alley where that video was shot. The feds find that video, see it shared widely on social media, and decide it is enough to bring gang conspiracy charges against you and all the others in that video, given that what you describe fits the facts of a fatal incident they are investigating. The prosecution instructs the officers who collected such material to act as expert witnesses for them, by writing a report in which they interpret your lyrics as literal testimony and testify against you in court. You are then charged with an offence and serve time in prison, as the jury has been swayed by the emotive nature of the drill ‘evidence’ presented to them by the Crown.

Needless to say, those who are summoned to the defendant’s seat when drill music is on trial do not need to imagine this fictional scenario – it is their reality. And this is what it is made of if they choose to make beats and rhymes that blindfolded Lady Justice can only see as ‘crimes’ through the “two festering sores that once perhaps were eyes”, as Langston Hughes’ famous poem Justice observes. 

Just think of the case R v Sode, where the Court of Appeal had to determine the admissibility of a music video in which one appellant had allegedly made a gesture and remarks consistent with support for a gang. The video had been made two years before the murder at issue, when the appellant was just 14 years old, and the only direct evidence of the murder involving the gang was a hearsay statement of questionable reliability. Yet the Court upheld the use of the music video as ‘gang evidence’ to help prove motive for participating in the joint enterprise murder. The Court did not consider that, even if the video had been interpreted correctly, references to gangs are common in rap – particularly drill – or that non-gang-affiliated young people participate in gang-themed music for a variety of reasons. The Court merely stated that the age of the video did not “reduce its impact or diminish its relevance”, with no explanation as to why. While these cases are hardly coincidental, given the ‘vastly expanding’ number of cases involving drill as evidence, they nevertheless illustrate how the law conspires in manufacturing suspects to be criminalised – raising critical questions about the legitimacy, logic, tactics, purpose and function of an entire legal-penal system when viewed from the perspective of those who are at the receiving end of such carceral machinery.

I nevertheless suspect that some will maintain that there must be something sinister about ‘this’ music and ‘these’ people to justify the illiberal and unjust methods by which drill music is racially criminalised. Trawling through pages and pages of legal-penal mechanisms that would be regarded as unthinkable, unacceptable and intolerable if applied to any other music genre or group of people, some find all this entirely appropriate when it comes to rap(pers). The long and disreputable history of policing against Black or Afrodiasporic music – discussed in the first three parts of the book, which look at the banning of African drumming in the 19th century, the policing of calypso and reggae music in the 20th century, and the suppression of garage and grime in the 21st – should suffice as proof that this story has more to do with criminal injustice than ‘Black criminality’. Indeed, it is a story of evidence that is no evidence, experts that are no experts, and justice that is no justice. But this too seems a hard truth to swallow. It is too much for too many.