Prosecuting Rap: Criminal Justice and UK Black Youth Expressive Culture

Black, Asian and Minority Ethnic (BAME) people are heavily overrepresented in the criminal justice system of England and Wales. While they make up 14% of the population, they represent 25% of adult prisoners and an alarming 41% of under 18s in custody. These figures led Theresa May to commission a review into the treatment and outcomes of BAME people in the criminal justice system and the resulting high-profile Lammy Report (2017) revealed a lack of scrutiny in policing and prosecution processes that is fostering unfair outcomes, especially for BAME youth. Lammy's findings have since been amplified by reports from the UN (2018) and Amnesty International (2018), which both suggest that UK policing and prosecuting practices toward young black men are contravening human rights laws.

One under-scrutinized area that may be feeding into these disparities is how police and prosecutors are using black youth expressive culture as evidence to shore up their criminal cases. Since the arrival of Grime in the early 2000s in London, UK rap has become hugely popular, producing household-names like Dizzee Rascal, Wiley and Stormzy. Many young people emulate these rap stars by composing rap verse and making amateur videos which they post on digital platforms for free. However, if these young people fall under suspicion of gang involvement or a crime, the police have increasingly come to search their phones and bedrooms for rap lyrics and trawl the internet for videos to help build a case against them.

Rap is a slippery form of expression and entertainment that should be used with extreme caution by prosecutors. Because the young people who make rap are often poor and black, the danger is that rap music works in inflammatory ways for the prosecution, confirming stereotypical ideas for majority-white judge and jurors about young black men. Preliminary findings suggest that rap can work powerfully as a pathway to conviction, even sometimes in cases in which there is a shortage of conventional evidence.

Some types of rap music are no doubt vulnerable to such use by the criminal justice system. Some Grime and most Drill rap strikes a menacing pose, claims to 'keep it real', and includes violent 'badman' themes. This music can be disturbing (indeed, one of Drill's intentions is to provoke). But the lyrics are by no means simply autobiographical and realist. Instead, it combines elements of autobiography with black folklore, working-class youth alienation, macho swagger, and commercial formula, operating in a broader pop-culture landscape for young men in which violent and criminal themes are pervasive (e.g. violent gaming culture, action and gangster films, etc.).

The introduction of rap culture into legal cases typically goes uncontested by defence counsels. Defendants in these cases are very rarely called to the stand in their own trials. Therefore, the use of rap by the Crown is not normally scrutinized or contested. This is especially worrying when rap is used in serious crime and joint enterprise cases, including murder trials that carry mandatory life sentences.

This project will bring the kind of much-needed scrutiny called for in David Lammy's report to the legal use of rap culture in order to help ensure fairer trials. It will: foster the development of rich, interdisciplinary arguments about rap to enhance understanding; support defence counsels by developing a handbook on how rap evidence can be contested; coach new scholar-defence experts who can scrutinize this legal use; engage with the media and public to raise awareness; and work with advocacy groups to communicate with policymakers and challenge prosecuting rap trends and the wider criminalization of black youth.

When rap is used as evidence in criminal cases by prosecutors, it is decoded by police officers who act as expert witnesses for the Crown. Many defence lawyers have little conversance with rap music and do not know that they can call their own rap experts to scrutinize and contest these police interpretations. This project will collate and distill the powerful arguments developed by those individual defence counsels who have mounted robust challenges to rap evidence and disseminate them to a much wider pool of hard-pressed and often atomized criminal defence lawyers. It will do so by producing a handbook on rap evidence for defence lawyers to consult. To contest the rap evidence, defence lawyers, facing heavily straitened legal aid budgets, need rap scholars to serve as expert witnesses. Such experts are currently in short supply. The project will thus forge a small network of new rap scholar experts. Training scholars as defence experts - who can use, and also help co-produce, the rap evidence handbook over the course of the project - will build capacity in this niche but vital area. These impact activities will be supported by and feed into the work of leading US 'rap on trial' scholar-experts.

The core message the project will lead on for the impact pathways (subject to review and refinement as the project progresses) is that young people's rap music has no place in courtrooms unless it is explicitly and directly connected to the incident at hand and even then, given its inflammatory and ambivalent nature, it needs very careful scrutiny.

As well as improving processes on individual cases, the impact strategy will feed into broader critiques of the stigmatization and criminalization of young black people in contemporary Britain. In particular, the innovative impact pathways will work to contest (1) the harm of police gang databases, which have been identified in a 2018 United Nations report as contravening the human rights of young black men; and (2) the controversial joint enterprise doctrine, currently under review, with its troubling racial disparities in charging, conviction, and sentencing rates. The majority of court cases the PI has worked on relied on police database evidence in which rap music is itself a criterion of gang membership and the majority were also joint enterprise (or conspiracy) cases, in which multiple defendants were in the dock. This project will expose how black culture is mobilized in little-known but inflammatory ways to forward these policing and prosecuting strategies. The use of rap music evidence in joint enterprise cases and on gang databases needs attention to guard against possible human rights violations and miscarriages of justice. This project will partner with groups like JENGBA (Joint Enterprise: Not Guilty By Association) and Stopwatch (Research and Action on Fair and Accountable Policing) in the UK, and the UC Irvine Law School Center in the US, bolstering advocacy work by targeting policymakers, legal professionals and publics (see Impact Pathways).

The PI already has an established impact track record as a rap expert in individual trials, having worked on cases in which the rap 'evidence' the prosecution sought to rely on was ruled inadmissible by the judge and excluded pre-trial (including two murder cases in 2010 and 2017). In a further three trials in which her legal reports and/or court testimony scrutinized the significance of the rap evidence, the defendants were acquitted (2014, 2017 and 2018). By fostering a small, self-sustaining network of defence scholar-experts who can critically examine the legal use of rap, linking up these new experts with criminal defence lawyers, and bringing this work to the attention of advocacy groups and policymakers, this project will engage in legal-impact capacity building.