Facing the Music – Drill in the Dock

Facing the Music – Drill in the Dock

Drill in the Dock

by Oliver Renton, Clea Topolski and Alexandra Monaghan

Life can be so unfair. One minute you are celebrating your glorious acquittal, dancing on screen before a selection of beautiful whips, cribs and tings, popping bottles of champagne; the next minute you are sitting in the dock, listening to your lyrics being robbed of their flow and mangled by a posh, wigged prosecutor.

60 wraps in the duffel bag my re-up’s mental // I’m talking hella petals // weight in this trap and I’d be done if feds raid it // I’m one step ahead I ain’t complacent”.

Such was the fate of Trapstar Toxic, less than two years on from his musical victory lap “Out Ere” (production – JC Beats; film – Myles Suave), notable in part for the supporting role played (unwittingly) by one James Scobie QC. One wonders whether, entering guilty pleas to possessing class A drugs with intent and possessing criminal property, Trapstar may have, for a moment at least, contemplated the notion of hubris.

The evidential status of lyrics has been increasingly litigated over recent years, with the rise and rise of YouTube and similar streaming sites bringing both greater exposure to artists and ease to investigators. Where once, officers would have tended to rely upon scraps of paper found in bedrooms, adorned with nascent verses, now a simple search for the words “drill” and “insert street name here” may reap handsome evidential dividends to a prosecution.

How is it then, that rap videos can become admissible in Court proceedings? Often it will be part of the Crown’s case that a defendant appearing on a video of this nature, is part of/or associated with a gang who involves itself in criminal activity?

In order to rely on such a proposition, the Crown must apply under s101 of the Criminal Justice Act (CJA) 2003 under one of several gateways. It is most common for such applications to be made under s101(1)(d) as an important matter in issue. It is usually submitted that what is portrayed in drill videos is not merely artistic posturing, but in fact pseudo confessions by the individual(s) as to their predilection for gang related activity. It is common for the prosecution to contend that such videos establish a propensity/tendency for the accused individual(s) to present themselves as either gang members who commit offences or an association with groups who have a propensity to commit offences.

There has to be evidence that the tribunal can assess in order to make a finding that an individual is either part of/or associated with a gang, before safely admitting such evidence into proceedings.

It has been known that some prosecution teams, have sought to argue that drill videos (or related gang membership evidence) does not require a bad character application, and can simply be adduced as part of the alleged facts (s98 CJA 2003) But more often than not, a formal application under one of the gateways of the Act would be the routine approach.

Unlike your gym membership or any other identity document, those accused of being gang members don’t oft carry around with them a laminated piece of plastic confirming their allegiance. It is often the case that the Crown will present to the Court, photographs of individuals throwing particular hand gestures or signs that the Crown say demonstrates that membership. Sometimes it may be the estate that the individual hangs around. It can be that the defendant has previously been stopped with, or arrested and charged with, other known gang members.Recently, drill videos have begun to creep into this arena as another strand of evidence that the Crown can rely upon to establish gang membership or affiliation. It will then be a further submission that the gang in question has a tendency to use violence, deal drugs, carry weapons etc (or whatever the matter in issue between the parties, is)

A helpful starting point when considering the admissibility of such evidence might be found in the case of R v Lewis (Jermaine Nathaniel) [2014] EWCA Crim 48. The case involved several defendants who, following riots breaking out in London, took to the streets of Birmingham on 9 August 2011 and, amongst other serious violence, petrol bombed a pub and took pot shots at a Police helicopter.The Crown applied to adduce evidence of bad character including you tube videos showing a number of the defendants together, which the Crown said, taken together with the lyrics of the songs, would assist the jury to determine the issues in the case, namely that the persons involved in carrying out the offences were known to each other and harboured similar attitudes. The Crown’s case was that this association enabled the defendants to organise themselves in such a way as to enact serious violence against the Police.

Sir Brian Leveson posed four questions to be settled by the trial judge when considering an application to adduce evidence of this kind:
1. Is the evidence relevant to an important matter in issue between a defendant and the prosecution?
2. Is there proper evidence of the existence and nature of the gang or gangs?
3. Does the evidence, if accepted, go to show the defendant was a member of or associated with a gang or gangs which exhibited violence or hostility to the Police or with links to firearms?
4. If the evidence is admitted, will it have such an adverse effect on the fairness of the proceedings that it ought to be excluded?
The Court of Appeal ruled that the trial judge was perfectly entitled to conclude that the video evidence was clearly capable of showing membership of/association with, a gang or gang, exhibiting violence or hostility to the Police or links with firearms.

Myers v The Queen (Bermuda) [2016] A.C. 314.

In this case, the Privy Council heard three conjoined appeals against conviction. In each case, gang related evidence was admitted primarily to demonstrate that the defendant had a motive to kill the victim. It was said that the evidence sought to be admitted by the prosecution must be justified as proving something on which the jury may legitimately rely on to resolve one or more issues in the case and that in any event, the evidence must only be admitted if, in all the circumstances of the case, it can be done without unfairness to the defendant.

Significantly, the case confirmed the principle that a police officer may present expert evidence “of the practices, mores and association of gangs” and can rely on a body of evidence (usually intelligence based) when giving such evidence.

R v Awoyemi and others [2016] EWCA Crim 668

The defendants in this case were charged with attempted murder and the first and third defendants also charged with possession of a firearm with intent to endanger life. The charges related to two incidents two weeks apart. It was the Crown’s case that the defendants were members of a gang and the intended target of both incidents were members of a rival gang.
The evidence relied upon by the Crown included handwritten rap lyrics found in one of the defendant’s bedrooms, which related to violence, drugs, guns and the ‘Dag’ gang and membership thereof. The lyrics threatened retribution for murdered members of the gangs, offered challenges to other local gangs and showed a link with and attitude to firearms, including a clear threat to shoot dead a rival. The Crown also relied upon a YouTube video, said to feature two of the defendants and other Dag members.
The Court of Appeal ruled that the evidence relied upon to prove gang affiliation was relevant and admissible on the facts of the case, noting that the circumstances of the two offences ‘bore all the hallmarks of gang related violence’.
In considering R v Lewis, the Court of Appeal stated that in setting down the four questions to be considered, Sir Brian Leveson had not intended to establish a rule that gang affiliation could only be admitted if it goes to show that the defendant was a member of or associated with a gang or gangs which exhibited violence or hostility towards the Police or links with firearms. Nor was it necessary for his four questions to be considered in every case.

R v Hafedh Rashid, KS, Kevin Tshoma [2019] EWCA (Crim) 2018

The appellants in this case were convicted of conspiracy to possess a firearm with intent to endanger life, possession of ammunition without a certificate and two counts of possession of an offensive weapon in a public place.
The Crown’s case was that two of the appellants were senior members of an East London gang, the Beckton Boys and that a third appellant was a junior member. All of the appellants denied being members of either the Beckton Boys or any other gang.
The Crown were successful in applying to adduce evidence in respect of the appellant’s gang membership and their involvement in acts of tit-for-tat violence with other gangs. The trial judge ruled that the evidence of alleged gang membership was relevant to an important matter in issue between the defence and prosecution. In particular, the Crown relied on three music videos, in which one of the appellant’s was seen holding a firearm, making the Beckton Boys sign and heard to be making reference to gang affiliation and violence.
In his defence, the appellant stated that he enjoyed making music and the videos and denied that they were gang related.
On appeal, objection was taken to the admission of a video called ‘Time Will Tell’. Within this video there was said to be a direct reference to the shooting of a 14 year old, Corey Davis Junior. The defence submitted that this was highly prejudicial. The Court of Appeal ruled that the video would not have been admissible, had the conspiracy not related to firearms. It was, however, because the video showed the appellant, whilst not involved in the shooting of Corey Davis Junior, exhorting the shooting.

The burden of demonstrating the relevance of recordings, lyric sheets or YouTube videos will lie with the party seeking to admit the material into evidence. It would appear however, following the decisions in Awoyemi and Rashid, that the Court of Appeal is becoming less restrictive in its view as to what constitutes relevance, and more willing to see relevance trumping the prejudicial impact of such evidence. Within Rashid, the violence exhorted was not only firearms related, but referenced a specific and grave offence – the murder of a 14 year old boy. It stands to reason that, the further into the realms of the abstract lyrics may be, the less likely the evidence is relevant.
So what, if anything can the defence do to resist such applications? Is it the case that an individual rapping with friends on a local estate – is always a call to arms to the opposing gang? Or is there a blurred line between a drill video and what could realistically be described as popular culture? If Fredo can commercially rap about getting rich by dealing drugs to sell out arena tours, why can’t a young boy from Hackney or Peckham do the same with his pals from his block?
It has been known for a defence team to demonstrate, that artists who rap about identical subjects with commercial success (Fredo being one such example) is not always art imitating life.
Often it will be the job of the defence to attack the intelligence presented by police to the Court as a starting point in resisting these types of applications. It may be that the police officer in question is not an expert (either by virtue of their experience, or more often than not because of a fault in their body of intelligence)
A defence team must also remain alive to issues of relevance. Does the evidence actually go to a point in issue? Within Rashid, it was made plain that the music videos would not be admissible, were it not for the for the centrality of firearms both to the conspiracy and to the subject matter of the tunes. As such, it may be necessary to look closely at the lyrics sought to be admitted to test whether they are, in fact, capable of supporting the factual contentions necessary for the Crown to demonstrate relevance. Is there material within the lyrics that points towards fantasy and away from reality?
What is clear, is that there has been a shift in these types of arguments taking up more and more Court time. It is imperative to not simply nod this type of material through the statutory gateways, given the obvious prejudice to any defence case.