The criminalisation of drill music by the Metropolitan Police denies artists and producers of their right to freedom of expression. This article situates this genre-specific censorship in its racial context, considers the Article 10 European Convention on Human Rights implications, and summarises what other European jurisdictions have done when faced with violent lyrics.

What is Drill and how is it being criminalised?

Drill is a grass-roots, urban music genre that depicts the harsh reality of life in London’s social housing estates. It is inspired by the sound of the impoverished suburbs of Chicago, and it gets its name from the “drilling”, distorted rhythmic structure and graphic lyrical content. It functions as a culturally and politically-conscious voice that broadcasts the patterns of inequality and social exclusion that disproportionately affects young black Britons. Its makers are protected by the right to freedom of expression – a cornerstone of modern democratic society that protects academics, journalists and musicians from censorship when their speech challenges those in power.

The Metropolitan Police and Crown Prosecution Service (CPS) are denying drill artists of this right. In 2020 alone, YouTube removed 319 drill music videos at the request of the London Metropolitan Police. Drill artists are blamed for inciting knife crime and gang violence in London and other UK cities. Drill videos on YouTube have been used as evidence in criminal trials to link defendants together and bring convictions against individuals identified without any proof that the targeted videos were linked to specific acts of violence. Criminal Behaviour Orders (CBOs), and Gang Injunctions can prevent video participants from associating with certain people, entering designated areas, wearing hoods, or using social media. CBOs have also been used to require artists to inform the police 24 hours before they publish drill tracks, and 48 hours before they intend to perform live. If artists fail to adhere to the instructions in the CBO, they can be fined and jailed. In 2019, the artists Skengdo and AM were sentenced to nine months in prison for performing a song with lyrics that listed various individuals who had been stabbed, in breach of a CBO. These major restrictions on a person’s freedom of expression are justified by an assumption that they are necessary to prevent further crime. But they are also very genre-specific.

Drill music is the only genre in the UK that is routinely used as evidence in criminal trials, that is policed by CBOs and Gang Injunctions, and is denied its artistic status. Drill lyrics are sophisticated. The structure of the lines and how they fit with a tempo is the product of hard-work and talent. The minimalist accompaniments are thought through and adjusted as tracks develop to emphasise certain moments in the lyrical story. Violent or not, these tracks cannot be simply bashed out without thorough attention and care. This being the case, the Metropolitan Police can be thinking one of two things. Either (i) the gangs in London are made up exclusively of talented musicians, or (ii) the authorities are not considering this music as art. If you stop to think about it, this kind of music cannot be meant as threats and confessions because it would take so much energy to make a drill track every time you wanted to say something that there would be no time left for organised crime!

Violence is the essence of drill. A drill track without violence is like a Game of Thrones episode without blood. These fictional narratives are intentionally exaggerated to create larger than life personas and narrators because violence sells. Forest Stuart, author of Ballad of the Bullet, explains how narratives are being deployed as an escape from poverty and equality precisely because they sell, but we detach those things from each other. Violence is glorified by the record label in the market place because it sells records, but derided in other areas of society and culture. In court the narrator is confused with the artists, which you never do with any other artistic genre.

The literary and fictional element of drill is mistaken for the literal and factual intention of the artist, so that the police, prosecutors and judges rely on the prejudicial impact that such content can have on the jury, rather than its admissibility as evidence. However convenient it may be to link whatever happened to the lyrics, the link is tenuous and the nature of the lyrics as a fictional product of the artistic creation does not change because of the facts of the case. New CPS guidance has a section on “Gangs, Drill and Social Media” as if these three things are linked and there is evidence to show this. The reality is this evidence does not exist. The CPS implies a connection between rappers and gang members that is wholly unsupported. What kind of justice system do we have that makes those assumptions? Those assumptions inform how the prosecution builds the case. Regardless of how an Article 10 challenge might affect the policing of drill, we need to think about upholding higher standards of criminal evidence than we currently have.

A Challenge under Article 10 European Convention on Human Rights

 Article 10 of the European Convention on Human Rights applies to both political and artistic expression [27]. The European Court of Human Rights in Strasbourg (Strasbourg) considers that interference with the right to freedom of expression can entail a wide variety of measures, generally “formality, condition, restriction or penalty” [43]. Prohibiting drill artists from publishing their creations falls into a category that Strasbourg has deemed an interference with the right to freedom of expression. Furthermore, in Handyside v United Kingdom Strasbourg accepted that freedom of speech applies to views which shock and offend and which are heartily disapproved of by the recipient [49]. Any challenge would first need to show that the lyrics are not specific enough to say that it constitutes a threat under criminal law that needs to be acted on by the police. If it lacks that specificity, and it is more of a general description of violence against a group, then it is recognised as free speech.

Once this interference is established, it would be for the Metropolitan Police to show that the interference is “prescribed by law”. There are two main ways drill artists are being silenced. The first is Criminal Behaviour Orders (CBOs) under the Anti-social Behaviour Crime and Policing Act 2014. These can only be imposed after a defendant has been convicted of a criminal offence, and are meant to discourage future crime. The issue here is that the crimes with which the defendant has been charged are rarely, if ever, to do with musical production. Rather, a ban-on-drill comes because of the lacklustre assumptions made about drill and gang membership. More problematic, however, are the Gang Injunctions served under the Policing and Crime Act 2009. These require only a civil standard of proof and can prohibit a person suspected of gang-related activities from doing proscribed actions. These applications can be made without notice, which means the party subject to the order is not informed that the hearing is taking place and does not get a chance to respond to the allegations made against them. The subject receives notice of the order once it has been decided, and failure to adhere to it can mean contempt of court which can result in a fine and/or jail time.

The Metropolitan Police would argue that that these stringent restrictions on an artist’s freedom of expression “pursue a legitimate aim” under Article 10(2), namely the prevention of crime and disorder, and perhaps the protection of public health and morals.

The argument thus culminates at the final hurdle: the “necessity” of the interference in a democratic society. The Met would have to show that the restrictions put on drill artists were “proportionate” to the legitimate aim pursued. When it comes to the press, Strasbourg is particularly attentive to censorship and must be satisfied that the penalty does not amount to a form of censorship intended to discourage criticism [79]. The same is true of art, as injunctions prohibiting the exhibition of a painting has been held disproportionate [37]. Drill as an artform is steeped in political criticisms that are both direct or inferred. The dark lyrics reveal the patterns of inequality and social exclusion that disproportionately affect young Black Britons. Unlike hip-hop, the subject matter is not private jets and champagne breakfasts, but marginalisation and the callousness of the police. This is being lost on the authorities who should be thanking artists for raising awareness on these issues; but that is seldom the response of powerful people when truth is spoken to them and they are asked to do something about its negative consequences. Censorship is used to masque criticism and divert attention on to more convenient truths. The criminalisation of drill is a convenient truth that focuses blame on the victims of youth and gang violence rather than tackling the real root causes. It is thus plausible that the suppression of drill is a form of censorship intended to silence the criticisms of the black urban youth.

To this an argument may be made that drill is artistic expression, and therefore does not command the same protections as political speech. Strasbourg has previously refused to declare restrictions on art that attacks religion or community standards unlawful interference with Article 10 [58].[1] Commentators say that this is because Strasbourg is more interested in protecting political expression than artistic.

There are two responses to this.

First, caselaw attaching greater weight to political speech does not deny artists Article 10 protection. There are cases where interferences with artwork have been held to be disproportionate. Furthermore, there have been signs of a shift in attitude within Strasbourg in respect of artistic freedom and the wide margin of appreciation left to states. The illuminating joint dissent of Judges Costa, Cabral Barreto and Jungwiert in I.A v Turkey – a case that ultimately upheld Strasbourg’s reluctance to interfere with artistic expression – referred to a passage in Handyside v U.K that recognised that Article 10 protects information and ideas that “shock, offend or disturb the State or any sectors of the population.” The dissenters emphasised that “these words should not become an incantatory or ritual phrase but should be taken seriously and should inspire the solutions reached by our Court” [1]. There is appetite in Strasbourg to give more protection to expression that is supressed because it shocks. Drill is the ultimate form of shocking speech. The irony of the Met relying on drill’s “artistic” nature to defend an Article 10 challenge when they have persistently ignored the creative licence of drill artists and taken their lyrics as evidence at face value could be put to a Court to show that this is an artform most deserving of Article 10 protection. Painting drill as the soundtrack to gang violence negates the fact that people listen to it for sonic pleasure. It is first and foremost art, but it is denied its status as art because of the political and cultural climate in which it is created.

Alternatively, one could argue that drill, grime and rap lyrics in general are often ready examples of political speech. In his research, Dr Lambros Fatsis captures a snapshot of drill and grime lyrics that offer “eloquent, albeit angry, testimony of stigmatisation, marginalisation and criminalisation by a police force which draws on bias, prejudice and stereotypes to supress music genres that expose the violent effects of deprivation, while also pointing to the over-policing of young Black youths as dangerous instead of vulnerable” [1310]. Other artists infer and reflect politics by describing genuine socio-economic and structural inequalities that call to mind political issues that speaks to the context within which people are living their everyday lives.

It is important to remember, however, that speech does not have to be political to be afforded Article 10 protection. Freedom of expression is a protected right because it acts as a “safety valve;” saying you are going to do things and expressing frustration is very different from acting or intending to act on them.

Various European jurisdictions have begun exploring where rap lyrics fall on a spectrum that has freedom of expression on one side, and incitement to violence on the other. None of these cases have yet made it to Strasbourg. Alarmingly, the Spanish Supreme Court upheld the conviction and sentence of Spanish rapper Jose Miguel Arenas (known as Valtonyc) on charges of hate speech and incitement to terrorism. The Spanish Supreme Court held that the lyrics constituted criminal offences because they created an atmosphere of fear and anxiety and that it was irrelevant that the rapper did not intend to harm any person. More reassuring is the French Court of Appeal decision to uphold the acquittal of a French rapper charged with incitement to hatred and violence against women. The French Court held that song lyrics must be analysed within the context of the musical genre in which they are performed and in consideration of the challenges and social conditions facing the fictional characters portrayed. The Court recognised that it would be a serious violation to artistic freedom to prohibit these forms of expression which are representative of concerns facing the young generation and quite prevalent in modern society. Crucially, the French Court understood that the rapper, Aurélien X, did not himself embody the negative traits of his imaginary characters, and it was clear to his audience that the characters were fictitious and the lyrics should not be confused with actual calls to violence. A challenge in the UK would contribute greatly to this expanding bailiwick.

Conclusion

The selective discrimination and criminalisation must be seen in its racial context. Young, black (often male) singers are singled out as a threat in the City and their product is used against them, not because it is reliable, fair and concrete evidence, but rather because it plays to emotive, tenuous, prejudicial assumptions about those we want to charge with wrong doing. The shock and revulsion towards drill is wholly inconsistent. When George Osborne said he wanted to chop Theresa May up into little pieces and put her in his freezer, it was understood as eccentric hyperbole. When Mick Jagger said he was going to “stick a knife right down (someone’s) throat”, he was not accused of inciting violence. But when an MC describes the violence that is a daily feature of London’s social housing estates, his lyrics are too vulgar, too specific, to count as artistic or intellectual production. The difference in these examples is one of double standards and hypocrisy that fits on to a historical narrative that criminalises black artistic expression and denies it the status of art. The mistake is to confuse the content of these violent lyrics as a desired lifestyle instead of the uncomfortable reality of the MC’s life. An Article 10 challenge could do much to correct this error.

This article builds on a recent discussion on The Media Law Podcast, which was hosted by the author, Colette Allen. The panel was Dr Lambros Fatsis (University of Brighton), a specialist in the criminalisation of black music sub-cultures and police racism, and MLP founders, Dr Thomas Bennett (City Law School) and Professor Paul Wragg (University of Leeds). The episode can be listened to here. I am grateful to Bennett, Fatsis and Wragg for sharing their thoughts with me.

[1]   “Whereas there is little scope under Article 10 para.2 … or restrictions on political speech or on debate of questions of public interest … a wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offence intimate personal convictions within the sphere of morals or, especially, religion.” Wingrove v United Kingdom 17419/90 [58]