The criminalisation of Black Art in the UK and USA
- Rap is a Black music art form that ‘belongs to a rich Black tradition of reverence for rhetoric in its written and spoken form.’1 It is ‘spoken word that currently manifests as rapping in the USA and deejaying in Jamaica that is rooted in the Jali (West African Ethnic Group) or the more commonly known griot traditions, which can be traced back for millennia and are commonplace across West Africa.’2 Rap music has played and continues to play an important role in Black culture, youth culture and beyond. ‘It is important to emphasize that rap is an artistic expression—a form of poetry—that employs well known literary and poetic techniques. For some, rappers represent “black poets of the contemporary urban scene” who use music as a vehicle for telling the history of Black culture. Others have shown that rap serves as an expressive artistic outlet for a marginalized urban social bloc, and a contemporary response to joblessness, poverty, and disempowerment’3
- Despite Rap having a long history and cultural importance, research by Quinn, Kane & Pritchard4 found that 63% of the cases involving rap evidence had a prosecution gang narrative, and 69% of joint enterprise cases looked at in this piece of research showed these prosecutions involved rap evidence. Further, in the UK between 2020-2023 alone, at least 240 people have had their fate in court decided, at least in part, by their taste in music.
- The targeting of Black Art is a global issue. In the USA, the campaign, Protect Black Art5, started in 2022 and has been working to end the criminalisation of rap and Black Art in the criminal legal system. The work carried out by this campaign led to the California Senate and Assembly unanimously approving The Decriminalizing Artistic Expression Act in September 2022 that restricts the use of rap lyrics as evidence in court in California. The UK also has a campaign group set up to address the use of rap music being used in Criminal trials called Art Not Evidence6.
The Problem in the UK
The non-governmental organisation (NGO) JUSTICE stated in February 2021 that the misuse of drill music to secure convictions is a ‘profound example’ of the systemic racism which has left Black culture repeatedly under attack in this country.7 This systemic and institutional racism, and means of resisting it in the criminal courts, will be explored in the sections below. The following facts illustrate the problem:
- Black defendants feature more heavily in joint enterprise prosecutions8 and are prosecuted in other criminal trials that ‘overwhelmingly’9 involve the use of features of Black cultural heritage, such as rap and drill music, as evidence of bad character, motive and association. A ‘joint enterprise’ prosecution is one in which the prosecution will seek to prove the existence of a common criminal purpose between the parties charged with a crime. Typically, there will be a principal defendant (‘D1’), often said to be the direct perpetrator of a crime, charged alongside an accessory/ accessories (‘D2’, ‘D3’, ‘D4’ etc), said be to equally as guilty as D1 on the basis that they have assisted or encouraged the commission of a crime. Parties may be referred to, collectively, as ‘co-venturers’.
- Discourse about gang membership is ‘significantly’ more likely to be used in ‘joint enterprise’ prosecutions involving Black defendants.10
- Ancillary criminal behaviour orders (CBOs) have also been imposed on drill artists, including the high-profile musician Digga D, as a form of cultural censorship.11
- Black young people are overwhelmingly identified and registered to ‘gangs matrixes’ – intelligence tools used by police to identify and risk-assess gang members – although they make up a much smaller proportion of those convicted of youth violence.12 For example, Amnesty International found that 78 per cent of people on the ‘gangs matrix’ in London were Black, compared to just 27 per cent of those involved in violence in London being Black, and subsequently called the matrix a ‘racialised’ war on gangs that stigmatises young Black men and violates their human rights.13
- The problem of Black youth growing up under constant police surveillance, whether on the streets or online, and the subsequent psychological harms of this, has been acknowledged both in the UK (as above) and in the US.14 Relying on evidence of gang membership forms part of this surveillance apparatus, as it enables police to monitor Black youths’ friends, families, communities and activities in an attempt to use this data against them in criminal prosecutions.
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A new digital policing surveillance method being deployed by the Metropolitan police is Project Alpha (est.2019)15 which sees officers processing children's data without their knowledge and consent via social media based on them being listeners of drill and rap music. This makes the genre of music you listen to a marker of criminality and monitoring. Activists have dubbed practices like the above as Data Weapons as they aggressively expand state surveillance efforts, exponentially increase the ability of the police and state actors to relentlessly punish and limit persons use of social media and it criminalises whole communities.
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You can confirm if Project Alpha has been used in the case you are working by a disclosure request question in the defence statement and also in a s.8 application.
My brother is in prison, wrongfully convicted. It’s his birthday today. It’s his 10th year of serving a 14-year sentence. It’s because of ... the joint enterprise law ... It’s because of that he has been sentenced for 14 years in prison.
Joint enterprise, gang affiliation and insignia and rap and drill
The use of gang affiliation, insignia, rap and drill evidence in relation to Black children at trial is plainly racist and/or results in multiple forms of racial stereotyping, including:
- the labelling of Black children and their peer groups as ‘gangs’
- the association of Black children and young adults with gangs and violent and problematic behaviour
- the labelling of gangs as problematic and inherently violent
- the association of gangs (and individual members) with communal acts of violence, criminality and other problematic behaviours
- the association of some Black children and young adults’ culture, such as rap and drill music, with gang-based violence and criminal acts.16 It is important to note that the issue of gang affiliation can be advanced in contexts outside of rap and drill cases and remains central to the racialised criminalisation of Black youth in the UK.17 The focus of this guide, however, is the use of rap and drill material as evidence of ‘gang affiliation’, which remains a common feature of criminal prosecutions of this type. The two should not be elided. For instance, separate experts may be required to proffer views on particular gang membership/activities, as distinct from their relation to rap and drill music and/or video content.
Overview of discrimination by criminalising rap and drill music
Reliance on evidence of rap and drill as evidence of ‘bad character’ or ‘negative associations’ has criminalised and demonised Black-led genres of music and legitimate forms of artistic expression for Black children and young adults.18
‘To label violent and inflammatory rap lyrics as “misconduct” is to misunderstand and vilify the genre. We don’t usually consider it misconduct to write or perform violent folk, rock or pop lyrics. Nor do we consider it misconduct to write graphic crime novels, violent plays or films, or even to play violent video games. So why is it reprehensible to partake in a genre known for its figurative language, use of metaphors, symbolism and exaggerations?’ - Abenaa Owusu-Bempah19, Assistant Professor of criminal law and criminal evidence at the London School of Economics
‘The genres of popular music and video that feature in trials are dominated by Black performers and audiences, so an over-literal interpretation which treats them as evidence of criminal activity will disproportionately tend to criminalise Black people, including people who might be guilty of nothing worse than adopting a criminal persona for purposes of entertainment.’ - Dr Tony Ward, Professor at Northumbria Law School and Dr Shahrzad Fouladvand, Lecturer in International Criminal Law, University of Sussex
The Black, Brown and Racialised children and young adults in our working group strongly felt and expressed that the Criminal Justice System’s treatment of rap and drill music is racist and censors their truth, art and culture. Some considered that Black people who make rap and drill music do so as a means of healthy self-expression, a way to improve their socio-economic circumstances and to evade ‘criminal’ acts, rather than incite them.
I don’t think it incites violence, I think it’s a truth.
They firmly resonated with this music as a mirror of their communities’ lived experiences:
- ‘That’s the life that the young kids are living ... I feel that it’s wrong to censor someone’s music and censor someone’s art if that’s the truth they’re talking. A lot of what these rappers are talking is their truth ... Give them their platform, let them breathe and grow.’
- ‘I don’t believe if it was a different race or a different cultural group, of which there are a lot ... releasing negative, harmful, offensive music, I don’t believe they are being given orders by the police saying they can’t express themselves.’
- ‘Music is a tunnel that there is a light at the end of.’
- ‘Violence is a choice and I don’t think drill necessarily force feeds that choice to anybody.’
- ‘The good thing is they put all that rage and energy into music.’
Action
Stages at which you can take action include:
- Arguing to exclude applications to introduce evidence in the youth court or Crown Court. Closely scrutinise the alleged relevance of the evidence and highlight the prejudice of it.
- At trial, once the evidence has been admitted.
- In closing speeches to the jury.
- In the legal directions and summing up of the law given to the jury, where applicable.
I think that drill is a way for people to express their emotions
How does the Crown present its evidence?
The practice of admitting evidence of gang affiliation/insignia and rap/drill music into evidence typically involves two elements:
- the admitted evidence itself – that is, the music, and
- the police expert opinion20 that the Crown will rely on to provide ‘guidance’ for the jury – that is, guidance as to the interpretation and meaning of the rap and drill lyrics. Rap and drill music: particular considerations There are particular evidential considerations that apply to the admission of rap and drill music.
Rap and drill music: particular considerations
There are particular evidential considerations that apply to the admission of rap and drill music.
Practical advice: checklist for the use of rap and drill music as evidence
Admissibility arguments
1. What is the matter in issue:
- membership of a gang?
- bad character?
- evidence of the commission of the offence in question?
- state of mind?
2. What is the disputed evidence, and how directly attributable to the defendant is it? Is the material:
- a recording by the defendant?
- an endorsement by the defendant of a published rap or drill lyric?
- nothing more than the defendant being in possession of a published rap lyric or video?
In cases involving rap and drill videos, consider the defendant’s actual role in the video and the extent of their participation. See, for instance, the case of R v Alimi,21 where the Court of Appeal held that it was an important distinction that the defendant’s role was simply as an extra and that he spoke no so-called ‘gang related’ lyrics whatsoever.
3. On what basis is the material being admitted?
- To do with the facts of the offence under s98 Criminal Justice Act (CJA) 2003?
- 'Reprehensible conduct’ under s112 CJA 2003? Can the defence argue that it is neither? That is, is it ‘simply music’? In making the argument that a piece of rap or drill music is simply music, you should ensure that you fully explore the issue – for example, through the calling of expert evidence and academic commentary. For example: Dr Jonathan Ilan (Senior Lecturer in Criminology, City University London) argues that it is inaccurate and unhelpful to view drill videos as evidence of violent crime or as attempts to glorify or precipitate it. Instead, the stylised videos and violent lyricism can be seen as forms of artistic performance that reveal an ambiguous relationship to criminality.22
4. What link does the Crown allege between the material, the crime and the defendant?
- What similarity does the material have with the crime?
- What is the extent of the remoteness in time between creation/use/access and the crime?
5. Is the material relevant to an important matter in issue, such as:
- commission of offence?
- statement of murderous intent?
- demonstration of membership/affiliation with a gang alleged to be responsible?
6. Invite the judge to consider exercising their discretion not to admit the evidence due to its potential prejudicial nature. Rely on:
- Academic research and other research or commentary pointing to the disproportionate impact of the use of this evidence on young Black men and the extent to which it relies on the use of racial stereotypes. For example, Ward and Fouladvand argue that ‘rap lyrics and videos are overwhelmingly used against young, Black defendants to construct a narrative that resonates with stereotypes about Black criminality’.23
- Expert evidence, for example from an academic and/or cultural expert. If the evidence is admitted:
- Ensure that the issue of whether the rap or drill music is in fact art is fully argued before the jury.
- Consider contacting defence witnesses, to reference production, marketing and distribution of music and/or videos, especially if the defence case is that the content is simply art and has no connection whatsoever to any alleged criminal activity.
- Ensure that the admitted material is limited strictly to what is relevant – for example, an entire video need not be played if a screenshot or part(s) of the video will suffice; or an entire rap song need not be played if a specific passage will do.
- Ensure that in legal directions the judge invites the jury to consider whether the lyrics are mere fictionalised accounts expressed in art.24 In giving this direction, the jury should be taken to the evidence that supports this proposition.25
7. When reviewing what the Crown case is on words stated by your client, consider the following
- Is the person a fluent speaker of Black British English and or Multi-Cultural London English?
- Can you instruct a Linguist or Rap Expert to translate what your client has stated?
- Confirm the meaning your client attributes to this word?
- Confirm if your client is a fluent speaker of BBE/MLE (often incorrectly called UK Slang)?
8. What to do if Court or Crown challenges your expert
- Defence experts challenging the use of rap/drill music in the court room is still not standard or routine. This means that often defence advocates that raise these issues and instruct an expert are often met with the following
- that their expert either does not have the expertise
- the evidence is not relevant/admissible.
- Some Judges suggest that the expert has gone beyond the remit of their expertise with a finding. The best way to deal with this is by drafting a skeleton argument setting out in line with the Crim Pr Rule 19 and in line with case law around experts, why you can present this particular type of expert evidence to the court.26
- If the Court states your Expert has gone beyond their area of expertise, advocates should argue that even if the expert is said to have gone beyond the remit of their knowledge with a particular finding within their report, it does not warrant the whole report to be excluded, it could be argued that the Court should not seek to rely on that particular conclusion if they are of the view this has occurred.27
- Consider drawing on international best practice using USA case law, in particular USA v. Michael Anthony Williams and Samuel Lee Berrelle Rakestraw28. Defence Lawyers should read the full judgment to explore some of the arguments used and also use the findings of that court to demonstrate in oral/ written submissions the ways in which other countries have dealt with the issue of Rap and Drill Music being used in Court cases.
Challenging the admission of ‘police expert opinion’ evidence
It is now common practice for police officers to be put forward as experts on the basis that they allegedly can, through their work, claim experience in relation to gang activity and insignia and the interpretation and meaning of rap and drill music. Challenging the admission of this evidence requires you to have a robust command of nuanced rules governing admissibility, which emerge from a combination of case law and the Criminal Practice Rules (CrimPR) Part 19 ‘Expert evidence’ and Criminal Practice Directions (CrimPD) Division V Part 19A ‘Expert evidence’, which are summarised in the annexes below.
Practical advice: police expert evidence – opinion or fact evidence?
This guide adopts the phrase ‘expert police opinion’ evidence. There is debate as to whether, as a matter of law, the evidence given by police officers in this context is evidence of fact as opposed to opinion. The classification given to this evidence can have implications on the applicability of the hearsay rules.
Police officers provide their ‘interpretation’ of rap and drill. They are often unqualified as experts, and potentially rely, directly or indirectly, on racist stereotypes. The issue of police officers providing ‘expert’ evidence in court has been described by JUSTICE as amounting to ‘no more than the prosecution calling itself to give evidence’.29
You are encouraged to contest this widespread lack of expertise. You are also encouraged to instruct your own independent rap and drill experts to assist in arguments to exclude or to inform the jury about the reality of this art form. Dr Eithne Quinn has set up a group of rap and drill experts who can be instructed on relevant cases. She has appeared as a defence expert in criminal trials, where it has been argued that ‘formulaic invocations of violence are intended to establish “street credibility” and imitate successful performers, and cannot be taken literally’.23 The article, published in the Criminal Law Review, contended that the correct label is ‘opinion’ evidence, and practitioners can rely on the arguments set out in this article to challenge so-called police experts.23
In summary, the article considers that there is nothing to indicate that police gang expertise is being subjected to any kind of rigorous scrutiny by defence lawyers, and that this expert evidence is in particular need of close scrutiny because of the risk that it will be tainted by structural or institutional racism.
This can make a material difference to Black, Brown and Racialised children and young adults’ cases, and is vital to integrating anti-racist approaches into criminal defence strategies.
Problems with the Crown’s use of police expert opinion evidence
Based on the reported cases on the Crown’s use of police expert opinion evidence, you should be aware of three main issues.30
First, the practice of relying on police expert opinion evidence has:
- evolved without any ‘systematic attention to the crucial issue of reliability’23 and created a ‘real danger’ that the court is accepting ‘unbalanced anecdotal experience’ as expertise.31
Second:
- it does not seem that defence representatives are challenging the admissibility of police gang and rap/drill expert evidence successfully and
- the criminal bar is failing to take up the requirements of the ‘new and more rigorous approach’32 of CrimPR Part 19 ‘Expert evidence’ and CrimPD Division V Part 19A ‘Expert evidence’33 (see the YJLC toolkit ‘Instructing an expert’34).
Third, the impact of these failures is that racist narratives may be unchallenged in consequence: ‘Even if an individual police expert is free of personal prejudice, the institutional “body of knowledge” on which they draw is one in which serious violence is much more likely to be identified as gang-related when it occurs in areas with high BAME [Black, Asian and minority ethnic] populations than when it occurs in predominantly White areas.’35
The law: admissibility of police evidence as ‘expert’ evidence
The general principles governing admissibility of evidence are as follows:
1. A witness without formal credentials may be ‘competent to provide the court with information likely to be outside the court’s own knowledge and experience, given [their] experience and professional background’.36
2. The evidence given by an expert may draw on their body of knowledge in the field.37 A witness: ‘... must have made a sufficient study, whether by formal training or through practical experience, to assemble what can properly be regarded as a balanced body of specialised knowledge which would not be available to the tribunal of fact. … [C] are must be taken that simple, and not necessarily balanced, anecdotal experience is not permitted to assume the robe of expertise.’38
3. ‘The robe of expertise’ requires abiding by the duty of an expert to be impartial. To be impartial, the police officer must fully state:
- any material that weighs against the proposition
- the evidence on which the proposition being advanced is based.39
4. Inferences from opinion evidence given by a police offer may be drawn if those inferences are:
- relevant to the case and
- sufficiently reliable.40
5. Expert opinion evidence based on hearsay may be admissible under the ‘body of knowledge’ rule.
6. The expert evidence in question must satisfy the criteria of the CrimPR Part 19 ‘Expert evidence’ and CrimPD Division V Part 19A ‘Expert evidence, which imposed a ‘new and more rigorous approach’ to the admission of expert opinion evidence.
Practical advice: resisting the admission of police expert opinion by the Crown
You need to:
1. Consider the general principles of admissibility identified above.
2. Assess whether the police officer qualifies as an expert and gives a sufficiently reliable opinion for it to be admissible. The CrimPD and CrimPR on expert evidence provide exceptionally detailed and helpful guidance as to both these matters. We have created checklists based on both, at Annex 1 and Annex 2 below, which you can use to frame you approach.
3. Consider whether the officer has the ‘necessary expertise’ to qualify as an expert.41
- Be aware that the Court of Appeal has held that a police officer may be accepted as a so-called ‘local expert’ in relation to the interpretation of rap and drill lyrics.42
- However, there was also recent guidance in the case of Dixon-Kenton,43 which urges caution when an expert ‘moves from the general and contextual to the particular’.44 The Court of Appeal held that the police officer in that case, despite his undoubted expertise in Lambeth gangs, was not entitled to assert, without more, that X or Y was a member of a particular (or any) gang. The court held that that opinion would have to be based on admissible evidence, which could be tested in the usual way and which also satisfied the requirements of the CJA 2003.
- What does ‘necessary expertise’ look like? Academics draw a distinction between two forms of social expertise:
- Interactional expertise: The expertise that is gained from immersion in the way of life of a culture, to the extent that an expert gains ‘tacit’ knowledge of the culture’s shared understandings, as compared with mere ‘dictionary knowledge’.
- Street literacy: An ability to understand the literal meaning of a community’s language without the tacit knowledge and context needed to evaluate its significance.
- You should scrutinise a police expert opinion to establish whether it relies on interactional expertise or street literacy.45
- In circumstances where an expert’s experience is limited to street illiteracy, practitioners should consider arguing that this type of opinion is not admissible expert evidence.
- You should make your argument on the basis of the CrimPR Part 19 ‘Expert evidence’ and CrimPD Division V Part 19A ‘Expert evidence’. For example, practitioners may wish to argue that an opinion based on ‘street literacy’:
- is unreliable
- is based on unjustifiable assumptions
- is based on flawed data
- relies on an inference or conclusion that has not been properly reached. It has been argued that the ‘unjustifiable assumption’ that police experts may be making about rap and drill lyrics or videos is that they can be treated as literal statements of fact.46
4. Consider whether the officer has a ‘balanced body of specialised knowledge’ to qualify as an expert witness.46
- Some of the points raised by the Court of Appeal in R v Brecani47 can be usefully transposed to this context. The reasons why the court stated that Competent Authority caseworkers are not experts in human trafficking or modern slavery can also be used to challenge the admissibility of so-called prosecution ‘expert evidence’ in other cases, including police officers: ‘It is not sufficient to assume that because administrators are likely to gain experience in the type of decision-making they routinely undertake that, simply by virtue of that fact, they can be treated as experts in criminal proceedings.’48
- An officer’s ‘expert’ opinion may lack the ‘balanced body of specialised knowledge’ identified as a key criterion in the authority of Myers.
- Examples of lack of balance include the following:
- A situation where the police only watch videos made by people they suspect of gang membership and watch the videos looking for evidence that will confirm their suspicions. It is considered that in this scenario the ‘selection and [the police] interpretation will be skewed in the direction of equating the use of language, dress and gestures associated with a particular gang with actual membership of the gang – as opposed to “braggadocio”, the adoption of a “persona” or an attempt to establish “authenticity” in the eyes of a knowledgeable audience.’
- The case of Awoyemi,49 where the evidence is said to have been that various rap lyrics and gestures and videos ‘established membership (and [in the case of one defendant] leadership) of the DAG gang ... the criminal nature of the gang, their attitude to firearms and serious gang violence’.50
- Further, another video, from the same case, in which young men ‘said to be’ two of the defendants chanted ‘Aggi DAG Mardi gang’ and made various verbal and gestural allusions to violence, was said to establish the existence of the DAG gang, membership of it, the criminal nature of the gang.51
- Where the evidence is admitted despite balance, it can be helpful to expose the officer’s experience before the jury. Lay out the detail of it and show that, for example, it comes exclusively from narrow experience, ie law enforcement.
5. The police expert evidence often does not look at the possibility that rap and drill music videos and songs are a form of fiction. The total erasure of this possibility is an important and inherent flaw in any evidence provided and should be fully argued in submissions as reasons to exclude the evidence.
Academics suggest of particular significance to practitioners in relation to, first, admissibility arguments generally and second, specifically regarding admissibility arguments relating to police expert evidence.46
- The inference that police experts seek to draw should be subject to the same scrutiny that scientific opinion evidence is subjected to – for instance, inferences as to the type of contact with an object that leads to DNA traces.
- There is a heightened need for care given the racial implications of reliance on evidence of rap and drill music: ‘The issue of balance is particularly important in this area because rap lyrics and videos are overwhelmingly used against young, Black defendants to construct a narrative that resonates with stereotypes about Black criminality. The genres of popular music and video that feature in trials are dominated by Black performers and audiences, so an over-literal interpretation which treats them as evidence of criminal activity will disproportionately tend to criminalise Black people, including people who might be guilty of nothing worse than adopting a criminal persona for purposes of entertainment.’51
- The use of rap and drill music in UK criminal trials also engages a linguistic justice issue, as many times the experts the Crown seek to rely on to interpret words found in these music videos or audio sounds are police officers. The use of police officers as experts in these contexts and their level of expertise should be challenged as an admissibility point due to going beyond their level of expertise by defence lawyers, namely drawing on the fact that police officers are not linguistic or rap experts and nor are they fluent speakers in Black British English(BBE)/ Multi-Cultural London English(MLE) - the language used by many UK based Rap and Drill artists. In the courtroom space criminal defence lawyers play a vital role in ensuring that BBE/ MLE language speakers are seen, accommodated and properly understood.
Resisting the criminalisation of rap and drill in and outside the courtroom
In the wake of artists, activists and community organisers calling out the racialised criminalisation of rap and drill music, in both the US and in the UK, campaigning efforts have continued to widen. In 2020, Century Films’ documentary ‘Terms and Conditions’ provided a voice to those who have a connection to drill music in the UK, exploring how it feels to belong to both a group marginalised by society and making music within a genre criminalised by the state. As the film asks: ‘Does life imitate art, or does art imitate life?’52
As the discourse has developed, more and more public figures have joined calls to end the use of rap and drill lyrics as criminal evidence. In the US in January 2022, world-famous rappers and musicians including Jay-Z, Meek Mill and Kelly Rowland signed a letter supporting a proposed change in New York state law that would prevent rap lyrics from being used as evidence in criminal trials. One of the senators, Jamaal Bailey, who was behind the ‘Rap Music on Trial’ Bill, said that: ‘The right to free speech is enshrined in our federal and state constitutions ... The admission of art as criminal evidence only serves to erode this fundamental right, and the use of rap and hip-hop lyrics in particular is emblematic of the systemic racism that permeates our criminal justice system.’53
Similarly, in the UK, lawyers and academics have called on the Crown Prosecution Service (CPS) to reconsider its guidance on the use of drill music. This resulted in the CPS engaging in a ‘listening exercise’ with academics, barristers, civil liberties groups and youth organisations to inform updated relevant guidance. The CPS’s existing guidance for prosecutors states gangs are ‘increasingly using drill music and social media to promote gang culture, glamorise the gang lifestyle and the use of weapons’.54 However, Dr Quinn has noted that any new guidance must instead work to restrict the use of rap and drill in courtrooms, with a first step being for the CPS to remove rap from their ‘so-called “gangs” guidance’ and calling for a similar law to the ‘Rap Music on Trial’ Bill in the US to be introduced in the UK.55
Practitioners reading this guide should therefore consider not only what they can do to resist the racialised criminalisation of rap/drill music inside courtrooms across the country, but how their knowledge, skills and insight can inform broader campaigns outside of the judicial system. From advocating for policy change, to engaging in grassroots art and activism, lawyers should form part of a collective anti-racist struggle in this context and beyond it, to truly dismantle systemic anti-Blackness and racism in UK criminal courts.
Annexes
CrimPR Part 19 and CrimPD Division V Part 19A provide detailed and helpful guidance on expert evidence.33 The following are checklists we have created based on these, which you can use to frame your approach.
Annex 1 – Police expert opinion evidence: admissibility checklist
The rules set out in CrimPR Part 19 ‘Expert evidence’ provide a framework through which you may scrutinise police expert opinion evidence and identify objections to admissibility. You should consider whether the evidence meets the following criteria – which are simply the rules that you are likely to find most instructive, re-framed as questions.
Police expert opinion evidence: admissibility checklist
Expert’s duty to the court
- Does the expert meet the duty of the overriding objective:
- by giving opinion which is
- objective and unbiased, and
- within the expert’s area or areas of expertise.56
- by giving opinion which is
- Has the expert satisfied their duty:57
- to define their area or areas of expertise
- in their report, and
- when giving evidence in person;
- when giving evidence in person, to draw the court’s attention to any question to which the answer would be outside the expert’s area or areas of expertise;
- to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement; and d. to disclose to the party for whom the expert’s evidence is commissioned anything
- of which the expert is aware, and
- of which that party, if aware of it, would be required to give notice under CrimPR 19.3(3)(c).
- to define their area or areas of expertise
Admissibility rules
- Has the Crown served with the report notice (the document serving the report) of anything of which the party serving it is aware which might reasonably be thought capable of:
- undermining the reliability of the expert’s opinion, or
- detracting from the credibility or impartiality of the expert.58
- Has the defence been given disclosure of and/or a reasonable opportunity to inspect:
- a record of any examination, measurement, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and
- anything on which any such examination, measurement, test or experiment was carried out.59
Expert’s report: contents
- Does the report give details of the expert’s qualifications, relevant experience and accreditation?60
- Does the report give details of any literature or other information which the expert has relied on in making the report?61
- Does the report contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based?62
- The Court of Appeal has held that it is ‘critical’ that the party calling the expert ensures that their expert is discharging their duty to the court in this regard.63
- Does the report contain a summary of the conclusions reached?64
- Does the report contain a statement that the expert understands an expert’s duty to the court, and has complied and will continue to comply with that duty?65
- Does the report contain the same declaration of truth as a witness statement?66
- Does the report make clear which of the facts stated in the report are within the expert’s own knowledge?67
- Where the expert has based an opinion or inference on a representation of fact or opinion made by another person for the purposes of criminal proceedings (for example, as to the outcome of an examination, measurement, test or experiment), does the report:
- identify the person who made that representation to the expert?
- give the qualifications, relevant experience and any accreditation of that person? and
- certify that that person had personal knowledge of the matters stated in that representation?68
- Where there is a range of opinion on the matters dealt with in the report, does the report:
- summarise the range of opinion? and
- give reasons for the expert’s own opinion?69
- If the expert is not able to give an opinion without qualification, does the report state the qualification?70
- Does the report include such information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be admissible as evidence?71 The Court of Appeal has held that it is ‘critical’ that the party calling the expert ensures that their expert is discharging their duty to the court in this regard.63
- Does the report contain a summary of the conclusions reached?64
- Does the report contain a statement that the expert understands an expert’s duty to the court, and has complied and will continue to comply with that duty?65
- Does the report contain the same declaration of truth as a witness statement?66
Annex 2 – Assessing reliability
The following checklist is based on guidance in the CrimPD Division V Part 19A ‘Expert evidence’.
Assessing reliability: checklist
Factors which the court may take into account in determining the reliability of expert opinion, and especially of expert scientific opinion, include:72
- the extent and quality of the data on which the expert’s opinion is based, and the validity of the methods by which they were obtained
- if the expert’s opinion relies on an inference from any findings, whether the opinion properly explains how safe or unsafe the inference is (whether by reference to statistical significance or in other appropriate terms) • if the expert’s opinion relies on the results of the use of any method (for instance, a test, measurement or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin of uncertainty, affecting the accuracy or reliability of those results
- the extent to which any material upon which the expert’s opinion is based has been reviewed by others with relevant expertise (for instance, in peer-reviewed publications), and the views of those others on that material
- the extent to which the expert’s opinion is based on material falling outside the expert’s own field of expertise
- the completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion (including information as to the context of any facts to which the opinion relates)
- if there is a range of expert opinion on the matter in question, where in the range the expert’s own opinion lies and whether the expert’s preference has been properly explained
- whether the expert’s methods followed established practice in the field and, if they did not, whether the reason for the divergence has been properly explained.
Additionally, when considering reliability, and especially the reliability of expert scientific opinion, the court should be astute to identify potential flaws in such opinion which detract from its reliability, such as:73
- being based on a hypothesis which has not been subjected to sufficient scrutiny (including, where appropriate, experimental or other testing), or which has failed to stand up to scrutiny
- being based on an unjustifiable assumption
- being based on flawed data
- relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case or
- relying on an inference or conclusion which has not been properly reached.
Written by Zehrah Hasan (Garden Court Chambers) in collaboration with the Youth Justice Legal Centre. Thank you to the young people who generously shared their experiences with us. Thank you to our expert advisory board: Aika Stephenson, Garry Green, Junior Smart, Sandra Paul, Kusai Rahal, Danielle Manson, Alexandra Wilson and Keir Monteith QC.