Nasheeds in Terrorism Trials

Dr. Felicity Gerry KC has been featured in Rolling Stone MENA with her article on the controversial use of nasheeds in terrorism trials. She explores how these Islamic devotional songs are sometimes misinterpreted as evidence of extremist beliefs, highlighting the cultural misunderstandings and stereotypes that can influence legal proceedings.

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It may surprise many that nasheeds, Islamic devotional songs, can be introduced as prosecution evidence in criminal trials, particularly those involving accusations of terrorism, where the prosecution seeks to prove an accused person has extreme views, beliefs, and associations.

Nasheeds have been used to establish ideological alignment with extremist groups, or to show an accused person’s level of engagement with extremist narratives. However, the probative value of nasheeds as evidence needs to be carefully assessed, as they can be easily misinterpreted or used unfairly, particularly against Muslim youth who may not even speak the language in the song.

Listening to a nasheed, even if it is glorifying violence, does not necessarily mean a person is expressing support for a particular extremist group or cause. It is crucial to consider the context of a nasheed found on a suspect’s phone. They are ubiquitous, and using possession of a download can unbalance the fairness of a criminal trial, especially if investigators and prosecutors are unfamiliar with Islamic culture or a judge or jury has preconceived negative views about Islam.

One case in which I defended, involved an allegation of a terrorist bomb plot, it was possible to show that imagery on a phone was capable of being misunderstood. It related to the Islamic religious icon Khawla Bint Al Azwar, the Islamic equivalent of Joan of Arc. In that case, nasheeds were played in court as evidence of alleged extremism.

The issue of using music as evidence of criminality is gaining prominence in the charging of musicians in relation to their expressed views on the situation in Palestine.

Cases such as the charging of Liam Óg Ó hAnnaidh, a member of the Irish rap group Kneecap, and the cancelling of Bob Vylan, are hot topics on social media, but the use of Nasheed’s to allege someone is of “bad character”, has a propensity to commit a crime, or has an extremist ideology is equally important and perhaps less well known.

The issue of using art and culture as evidence in criminal trials is more commonly discussed in the context of rap music where creative or artistic expression has commonly been used in criminal proceedings as evidence of criminality, even though it is known that rap relies on hyperbole and acts as a form of release for social commentary.

As rap music is part of youth culture, so are nasheeds, yet the two have become targets for prosecutions, to link people to crimes without understanding the art, the culture or the religion. The risk is that lyrics and sounds are taken literally without being understood, branding young people as criminals or criminal associates, as terrorists or terrorist sympathizers.

As rap music has been used to amplify images of black youth as ‘gang’ members, so nasheeds are used to frame Muslim youth as “extreme”. In one homicide I defended one lyric relied on by the prosecution to impute an accused’s “bad character” appeared in a search on Lyrics.com in 74,283 lyrics by 46 artists, and in 48 albums. Spelt another way, it appeared in 1,836 lyrics by 100 artists, and in 3 albums.

These searches were undertaken by the defense, not the police officer who gave evidence of “gang” associations. In that case that evidence was excluded by the trial judge but evidence of “nicknames”, hand signals and postcodes were admitted, suggesting at least the ‘ghettoization’ of young people in certain locations, even though my client lived elsewhere. My client and another were acquitted. A co-defendant, an emerging rap artist, was convicted.

Searching for nasheed lyrics is less easy. Even accepting that some lyrics that are directly connected to the crime charged might be relevant, rap and nasheeds are not usually presented in this way. Most often, generic lyrics are used as evidence of what someone was thinking or their associations and motive, even where the recording is old, mainstream and the listener is a youth with only passing familiarity with the content.

Assuming nasheeds are terrorist hymns is rooted in stereotyping, reinforces bias and anti-Muslim sentiments, and risks prejudicial effects in court. Campaigns against the use of rap as evidence have gained traction, supported by research from academics, lawyers and NGOs, arguing for a far more rigorous approach to admissibility with the legislature called upon to limit the use of rap as evidence.

The same may well be necessary for nasheeds.

Link to to article: Rolling Stone MENA