Suzanne O'Connell, Solicitor
The field of law has long been recognised as one of the oldest professions. The fountain pen for many heralded a new era in a domain often associated with the ink well and pink ribbon briefs. However, with the advent and increasing evolution of technology and digital working, the profession, particularly the field of criminal law, has been moved, albeit somewhat unwillingly, into the 21st Century. Most technically-savvy and dare I say, progressive, firms are moving towards total digital working practices. Indeed the courts and Crown Prosecution Service are now fully digital albeit not without their own different attendant problems. In line with this has been the development in relation to electronic evidence. While CCTV has been a feature of criminal cases for some time, the introduction of other forms of electronically-retrievable and stored evidence is now becoming increasingly common, to the extent that it can be the key evidence relied upon in a criminal prosecution. However, it would be a great mistake to approach such evidence as if it was CCTV. Although there are occasional instances in which CCTV can prove useful, generally such footage is often taken as fact. This may be why it has become so increasingly used and relied upon in recent years.
However, this is not an approach which should be taken to other forms of video evidence such as music videos. Take 'Grime'. Grime music is often stereotyped as being associated with those who engage in criminal and gang-related activity. Its growth in popularity has, however, resulted in the designation of specialist police task forces dedicated to gathering intelligence on internet activity in relation to such videos. This material is often used as a basis for a charge and/or evidence in a case. Internet sites such as You Tube, Mixtape Madness, GRM Daily, Spiff TV, PacmanTV, Link up TVand SBTV have allowed individuals who would not normally have access to such production to effectively produce and upload videos, which has led to worldwide recognition of some as 'Grime Artists.' These videos often feature what might appear to look like weapons as well as rhetoric about drug dealing and gang violence. This is a much underrated development which requires those involved in Criminal Defence to review how such cases are approached. I have had a number of cases in which Grime videos are cited, by the Prosecution, as a reasonable basis upon which to impose bail conditions and charges. One such example was a case in which the justification for keeping a suspect on police bail with a curfew condition was that the suspect had featured in a Grime Music Video and therefore was presumed to have an association with a gang/drugs lifestyle. This was challenged and the curfew was removed. Another example was a charge of being in Possession of an Offensive Weapon, as a result of what appeared to be a weapon in a Grime Video. This was challenged and the charge was withdrawn at trial.
While the lyrics in such videos may to some appear unpalatable and somewhat offensive, Grime has become a mainstream commercial music genre. Artists such as Stormzy, Potter Payper, Skepta and Krept & Konan, to name but a few, are frequently played on mainstream radio stations, such as BBC Radio, and have been nominated and/or won a number of mainstream awards at organised music ceremonies. While it can’t be denied that some of those involved in the Grime music industry may also pose a less than minimal association with crime, this is far from always the case and the contrary should not be readily accepted as evidence in criminal cases. To pay heed to such caution, Defence Advocates must become much more au fait with this area of important societal evidence in order to engage with the issues which are raised by such cases and the potential civil libertarian, as well as human rights, issues that are undoubtedly raised by the use or potential use of such forms of evidence.
There are a number of ways of challenging such cases. Expert evidence from the production companies in relation to the filming and cutting/digital enhancing/imaging of the videos. Challenges to the Prosecution's case as to proving the actual location/object of said offence such as, for example, in charges relating to the Possession of an Offensive Weapon. From experience, quite often videos are cut to areas where a particular artist may hail from or is currently residing but it does not automatically follow that they are actually at that location or indeed even in a public place. Artistic Expression and Right to Freedom of Expression. I recently saw someone described as “a drug dealer portraying himself as a rap artist”. However the corollary must be equally plausible; namely, could it not be said to be "an artist portraying himself as a drug dealer"? Such mind sets and perceptions, linked to stereotypes and misunderstandings, are all too prevalent in an increasing number of cases; and to be vigilant against any such widespread (mis-)use is becoming more and more vital in today's Criminal Justice System.
It is also vital to present Grime to juries in a comprehensive way, as a popular Genre of Youth Culture acceptable in mainstream media, not as it is often portrayed by the Crown as an inextricable part of the criminal underworld. This crude and very often unedifying link must be quickly and concertedly stamped out, as it does nothing for the quality of justice that is consequently churned out. This type of material can be devastating to cases but it must remain firmly in the mind of those who come into contact with such cases that they can be successfully challenged. The field of criminal law is frequently the first to be influenced by social and societal developments, being a barometer or microcosm of today's wider society and that's what makes this whole area so interesting.
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Suzanne O`Connell is a Solicitor High Court Advocate with Tuckers Solicitors. She has extensive experience in serious cases including; Murder, GBH, Serious Sexual Offences and Assaults.