Elena Papamichael, barrister in the Garden Court Crime Team, highlights how the racialised concept of a “gang” can reinforce and reflect the systemic bias in the criminal justice system.
This article below includes Elena’s response to the CPS public consultation on “gang” related offences guidance and musical expression in evidence.
The definition of the word ‘gang’
The concept of a ‘gang’ is racialised. This means that the dominant understanding of the word has a racial interpretation. Put simply, the word ‘gang member’ invokes an image of a knife yielding young Black man in a tracksuit and face covering. This is as a result of years of media reporting around certain crimes in a racially biased way that has now permeated mainstream consciousness.
The ill-defined, amorphous concept of the ‘gang’ should have no place in a Criminal Justice System. Its current usage within policing and criminal cases means that Black children and Black men are grossly disproportionately targeted by the concept in the criminal justice system. It is such a nebulous term that it very rarely assists or adds to a prosecution or criminal case, other than in a prejudicial way.
The now disgraced Gang Matrix contained the details of thousands of individuals. It was found that 78% of the alleged ‘gang’ nominals on the intelligence system were Black. Of those included on the Matrix, 84% were Black, Asian, and minority ethnic. Additionally, 80% were between 12 and 24 years old. In comparison, Black people only account for 27% of serious youth violence in London. It is clear to see the discriminatory concept of the ‘gang’, but also its ineffectiveness as a meaningful crime prevention and detection tool.
With such a wide definition of a ‘gang’, it is ripe for misuse and prejudice. The CPS guidance refers to “urban street gangs” and goes on to cite the dictionary which describes a definition of the word “urban” as denoting to or relating to popular dance music associated with black performers; denoting popular black culture in general. And so, we see, that “urban street gangs” is, in truth, no more than a euphemism for Black street ‘gangs’. This is highly problematic. Not least because police very often mistake elements of Black culture as indicators of criminality.
Retiring the use of the word ‘gang’?
The term ‘gang’ should be avoided. It has enduring racial undertones that cannot be undone. Prosecutors should refer to Organised Crime Groups (OCGs) where appropriate and the criteria are met. This a racially neutral term and requires some level of organisation and structure. Without that element, what is often elevated to the status of a ‘gang’ is just a group of young people from the same area or estate. Without any sort of quantifiable or tangible structured criminal enterprise, what is often called a ‘gang’ is nothing more than a friendship group.
With the word “gang” being so closely associated with the Black community, it is impossible to avoid making assumptions about gang membership.
This is why the word should be retired from the criminal justice system.
Weaponising linguistics
The use of Jamaican Patois, common in the diasporic communities and in London in general is weaponised in the courts every day. Police officers, describing themselves as “gang experts” with no training, experience or qualifications in Patois, give evidence about “slang” and ascribe criminal meanings. This is not hyperbole.
By way of example, I recently represented a 15-year-old in a multi-handed Class A drugs conspiracy case in the Crown Court. A serving police officer gave evidence as a “gang expert” to interpret messages from one of the Defendants. The officer gave evidence that a message referring to the author having to “buy presents for his “youts” meant that he was buying presents for his drug runners because “youts” means runners.
Although this “evidence” did not affect my client, I was disturbed by the weaponisation of Black British English/Patois, and I cross-examined the officer regarding any training or experience with patois – he had none. I asked him if he understood what the word “yout” means in Patois – he did not. I put to the officer that it just means child, and he agreed that, in fact, that same message could easily mean that the author was speaking about buying his own children presents.
Had I not cross-examined the officer, that “evidence” would have gone entirely unchallenged and accepted on all sides. It is evident how certain groups are so patently disadvantaged in the trial process, when cultural differences are mistaken for criminal tendencies. This is at the heart of policing of ‘gangs’ and “gang culture”. Where ‘gang’ is a proxy for “Black”, then when “gang culture” is being policed, it is “Black culture” that is criminalised.
CPS Guidance
The CPS guidance refers to “gang offending” but acknowledges it varies significantly and is not easily defined. This is because the whole concept of a “gang” is a straw house. It relies on not much more than stereotypes and myths. The guidance goes on to state: “many gang members carry weapons to protect themselves during drug dealing activity”. Many young people with nothing to do with ‘gangs’ carry weapons because they are fearful for various reasons.
If such a young person also happens to be Black, and from an area or estate that has notoriety, it is extremely easy to be cast as a ‘gang’ nominal or associate based on this guidance. The assigning of ‘gang’ membership to someone means then that the actions or crimes or motives of people they know can now be attributed to that person. The reality is that many young people who went to school with or live close to individuals in crime can be caught in the net of the definition of a ‘gang’ member or associate.
Drill Music and ‘Gang’ Culture
The CPS guidance asserts that ‘gangs’ use drill music and social media to promote “gang culture”, glamorise the ‘gang’ lifestyle and use of weapons. This demonstrates a fundamental cultural blindness. Drill music is a genre of music of Black origin that, by its very nature, is characterised by violent imagery and lyrics. That may feel unacceptable to mainstream society, but that is the definition of countercultural expression.
Music of Black origin is very often the cultural vanguard and, what begins as counter-cultural, eventually becomes mainstream and acceptable. However, the originators are often persecuted for others to stand atop their shoulders, who then benefit socially and financially. In 2017, the Daily Mail reported that “grime music is fuelling the use of skunk because artists are referencing the drug in their chart-topping songs”. By 2020, artist Dizzee Rascal, a Grime trailblazer, was awarded an MBE for services to music.
Save for very specific, confessional lyrics about real incidents and real (and unexaggerated) involvement in those incidents, lyrics about violence and weapons, drug taking and drug dealing should not be weaponed in a courtroom as evidence of criminal intent.
Police officers who lack significant experience of music of Black origin or Black British English, other than through the criminal justice system, will inevitably and unavoidably hold skewed beliefs about this type of music. The officers then give evidence in criminal cases as “experts”, used to convict people of serious crimes and regularly assign ‘gang’ membership to drill music groups. Without cultural context and history, edgy expressions of culture are easily criminalised.
Unconscious Bias
The current CPS guidance states that prosecutors should guard against unconscious bias and should not make assumptions about ‘gang’ membership.
By its very nature, unconscious bias is the holding of beliefs that are skewed from the truth through prejudice that the holder of those beliefs doesn’t realise they have. It is therefore impossible to “guard against” something we are not aware of. We all take our versions of reality from our environments and the people around us.
If a police officer or CPS decision maker’s main exposure to young Black men is through the criminal justice system, that will lead to the development of unconscious and sometimes conscious bias over time. Without cultural understanding, anodyne expressions of culture become the target of policing and criminalisation.
A well-known example is how, in the 2000s, the hoodie became the … “ultimate don’t-look-at-me garment. It’s CCTV, it’s council estates, it’s dusk, it’s scary. The hoodie … has become an emblem of the criminal classes.”
Retrospectively, we can look back and see that is ridiculous as hoodies are worn widely and the idea that someone is a criminal for wearing a hoodie is farcical. But it is important to learn lessons. The balaclava is currently viewed by the police and CPS as a signifier of gang membership and criminality. Of course, sometimes balaclavas are used in crimes to conceal identity, but it is also an item of clothing that has been massively popularised by drill music and has become part of general youth culture.
Similarly, lyrics with violent themes are seen as evidence of criminal intent. Drill music is violent as a style. If lyrics are not specific and confessional they have no place in a criminal trial. Adducing lyrics to show “a general interest in firearms” or a general involvement in drug dealing is unfair, indirectly discriminatory to Black and mixed people (as a music of Black origin), and not truly probative of criminality.
Therefore, a warning to guard against unconscious bias is not an effective or adequate way to avoid discrimination when deploying prosecutions based around gang membership, gang association, and the use of music in criminal trials.
Recommendations on CPS guidance
The CPS guidance on ‘gang’-related offending is intended to emphasise the importance of guarding against unconscious bias and making assumptions based on racial stereotypes.
If there is to be guidance on “gang -related offences, it requires very significant assistance that limits the prejudicial use of the word ‘gang’. For example, and not limited to:
- Using the word OCG instead of gang and requiring any definition to require evidence that the group is organised, structured and working together to commit specific crimes for financial gain
- Being associated to a particular area doesn’t mean someone is part of a ‘gang’
- Being associated with individuals who are “gang-affiliated” doesn’t mean that person is themselves ‘gang’-associated
- Being associated with a Drill music collective doesn’t mean someone is ‘gang’-associated
- Generic lyrics about violence, drug dealing and weapons without reference to specific incidents or people, are not admissible, and are not probative of criminality or gang membership. In the same way, other artforms that depict dark themes are respected as artistic expression, however unpleasant or shocking.
The guidance, as currently drafted, does not achieve its aim of emphasising the importance of guarding against unconscious bias and making assumptions based on racial stereotypes. There should be specific guidance, but it needs to be far more instructive and pro-active in how to avoid racist prosecutions and prosecutions based on racist concepts of gang membership.
