We would all be shocked if the criminal courts permitted the use of a painting as evidence of propensity to commit a crime. When it comes to rap music lyrics this is a different story—one that can get you a Criminal Behaviour Order (CBO). This was the case with Skengdo & AM who were sentenced to nine months in prison for performing one of their songs. Even beyond the obvious racial stereotyping involved in the criminalisation of rap, there seems to be an alarming hypocrisy surrounding freedom of expression. In any case, admitting evidence of this kind is a flagrant breach of article 10 of the Human Rights Act 1998 (HRA). So, is the UK a “freedom-loving country” as our Prime Minister states, or is it a freedom-loving country for just the few who share the same routes of expression?
CBOS AND RAP LYRICS ADMITTED AS “BAD CHARACTER” EVIDENCE
Skengdo & AM’s “From South,” released in 2020, describes:
Stereotyping lout, we all know he can't stand my blackness
No they can't stand my blackness, see a black yute and they all think stabbings
You don't even know this guy, he wears a tracksuit so you think he's trapping
I got 9 months suspended for rapping, still can't believe that happened
Freedom of speech, don't have it, just one day and my shoes can't have it
The CBO Skengdo and AM received is not news given the UK police’s attempts to criminalise rap music. From 2005, Form 696 was regarded as the police’s way of shutting down grime gigs and was rightly abolished in 2017. Most recently, the tables have turned to drill music. Admission of rap lyrics has been introduced to show gang membership and a propensity to commit violence. Rap lyrics are being treated as if they are autobiographical. This is a slippery slope and shows a complete absence of knowledge of the artistic expression. If a poet wrote about violence in their life, we would interpret it through the lens of what we think the author was trying to convey. Yet with rap lyrics, they are taken as they are.
Furthermore, by way of analogy, rap is no more causatively linked to violence than rugby is to off-pitch aggression. There can be a link, but it does not cause the violence. As stated in a recent study: “there are complex interactions and influences that impact the relationship between rugby and off-field aggression,” and yet we do not see participation in rugby admitted as evidence in criminal trials.
Furthermore, rap can be a means of speaking out against situations of injustice. It is disproportionately the product of poverty because the conditions that create poverty give rappers material to write about, as Ice Cube raps:
I do gangsta Rap,
They want to blame the world problems on Gangsta Rap...
They blame it all on us
Well I'm blamin' them for Gangsta Rap
Because if they didn't create these kind of conditions
I wouldn't have anything to rap about [emphasis added]
ARTICLE 10 OF THE HUMAN RIGHTS ACT: FREEDOM OF EXPRESSION
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime…
It is an obvious issue that the police are justifying the admission of such evidence as being necessary in a democratic society, in the “interests of territorial disorder or crime”. But is it necessary? Is it appropriate that police officers can be used as witnesses to testify as experts of gang culture and rap music? The European Court of Human Rights (ECtHR) would think not, and the UK is required under section 2 HRA to take ECtHR judgments into account.
Art is an important form of expression. As stated by the Commission in reporting Muller and Others v Switzerland, 24 May 1998:
Through his creative work, the artist expresses not only a personal vision of the world but also his view of the society in which he lives. To that extent art not only helps shape public opinion but is also an expression of it and can confront the public with the major issues of the day.
Most importantly, even if rap lyrics do have an unfortunate correlation to violence, it still constitutes expression to be protected. As the ECtHR held in Karatas v Turkey:
…even though some of the passages from the poems seem very aggressive in tone and to call for the use of violence … the fact that they were artistic in nature and of limited impact made them less a call to an uprising than an expression of deep distress in the face of a difficult political situation.
Rap is musical poetry and artistic. If poetry is permitted as expressing “deep distress in the face of a difficult political situation,” then why are rap lyrics not? While there will be circumstances where lyrics correlate to actual violence, it begs the question of how limited evidence against a defendant must be in the first place for rap lyrics to be adduced? Could this ever result in a safe conviction? These are questions that need to be addressed immediately, to ensure the UK’s reaction is brought in line with the ECtHR jurisprudence in Karatas.
Lucy is a current BTC LLM student, Middle Temple Benefactors Scholar & freelance Barrister’s Legal Assistant. She is an aspiring Immigration, Human Rights and Public Law barrister, with a particular interest in freedom of expression, human trafficking and asylum cases.