You have to watch the House of Lords carefully these days. Whenever a Bill on some fairly general subject, like crime, is passing through it, pressure groups regularly intervene and slip in their own pet amendments. This week it is the turn of a legal ginger group called Art not Evidence. They have got sympathetic peers Shami Chakrabarti and Doreen Lawrence to put forward an amendment to the otherwise fairly unexciting Victims and Courts Bill. This amendment would prevent any ‘creative or artistic expression’ from being used as evidence against a criminal defendant unless its literal meaning directly implicates them in the crime charged.
Still none the wiser? There is, as you might imagine, more to this than meets the eye. This innocent-sounding proposal is not a simple high-minded call to protect artistic freedom. It is an intervention in favour of one particular art form: the form of rap music called ‘drill’, as overwhelmingly patronised by a very particular sub-class of urban black youth.
The supporters of the Lords amendment should also be careful what they wish for
Drill music, typically brutal and disconcertingly violent in its imagery, is often used as a kind of subcultural lingua franca, with particular tracks associated with certain activities or gangs. This has not been lost on criminal prosecutors. In several high-profile cases involving gang violence or other organised mayhem, a defendant’s involvement in the production of drill, or a recording of it on their phone, has been used in court as evidence of their tendency towards direct involvement in the violence concerned.
This amendment seeks to stop this in its tracks. Young black men, its supporters say, must not be damned by their unorthodox musical tastes and need protection from the prejudice of jurors and others who do not share them. This is a sentiment apt and obviously intended to appeal to a slightly bored House as an embodiment of sweet reasonableness. It should nevertheless be regarded with suspicion.
The first point is that, whatever defendants may say about their right to listen to what they like, the evidence it seeks to prevent prosecutors using may be highly relevant. Imagine someone accused of taking part in a murder leading with evidence that they are a gentle soul who wouldn’t hurt a fly. The presence on their phone of super-violent lyrics may not be conclusive evidence of violent tendencies, but it is certainly suggestive. If a youth charged with helping a gangland stabbing denies any connection with the gang that did it, a video showing them gyrating in a drill production by other members of the gang may indicate an inconsistency; similarly with a hoodlum whose prints are found on a firearm who denies handling it but possesses numerous recordings extolling the joy of playing with guns. We need to think at least twice before depriving hard-pressed police and prosecutors of such a useful weapon against organised violence.
Furthermore, it’s not even the case now that music on a phone can regularly be used to help condemn any defendant whom prosecutors want to send down. Bad character evidence, which most drill music amounts to, is admissible only in limited cases and only where clearly relevant; furthermore, the judge has an overriding discretion to exclude it if the prejudice it causes outweighs its probative value. Possibly they should be more willing to do so in the case of evidence running to little more than musical taste; but this is not an argument for excluding that particular category of indirect evidence altogether.
For that matter, the supporters of the Lords amendment should also be careful what they wish for. Put the boot on the other foot. Imagine a neo-Nazi supporter of, say, Patriotic Alternative is accused of attempting to murder a Jewish family for racial reasons; suppose also that his flat contains a prized collection of Nazi artworks, recordings of the Horst Wessel Lied and a well-thumbed translation of Mein Kampf next to his bed. Do they really want such matters to be excluded from evidence as a matter of law, even if otherwise admissible? They are, after all, works of ‘creative or artistic expression’, however twisted the creativity or the art may be, and they do not directly tie the defendant to the particular crime he is said to have committed.
It’s hard not to think that, however well-meaning, this amendment is aimed at advantaging a particular social and racial group and at protecting a very selective form of art. And that’s before you get to the remarkably insulting assumption behind it, which seems to be that the majority of Britons are too stupid to grasp that a young black person who likes drill music is not necessarily a violent criminal. Their Lordships should have no compunction in voting down this exercise in progressive identity politics. Doing so would prevent the introduction of an arbitrary rule into our criminal law and the erection of further obstacles for prosecutors already facing a difficult enough job.
Comments