Introduction The eminent jurist and now retired former President of the Caribbean Court of Justice (“CCJ”), Sir Dennis Byron, commented recently at a Commonwealth Lawyers Association webinar, entitled, “‘Savings clauses’, the death penalty, and constitutional rights” that the Judicial Committee of the Privy Council’s (“JCPC”) decision in Chandler: “…reflects a traditional British constitutional principle of the sovereignty of parliament and that when dealing with countries with a written constitution, where the supreme law is the constitution, there seems to be some difficulty to fully embrace this distinctive constitutional imperative.” He said the difference in approach which has emerged between the two courts following the decision of the JCPC in Chandler and the decisions of the CCJ in Nervais, McEwan and Bisram, gives rise to the following question: “Is the Caribbean Court of Justice a more credible champion for Caribbean fundamental rights and freedoms than the Privy Council?” An examination of some of the principles to emerge from these four cases might help answer this question. Background In the 1960’s many Commonwealth Caribbean nations moved towards independence. Written constitutions typically became the supreme law of each country, and they had individual human rights and freedoms enshrined within, including the rights to protection of the law and not to be subjected to cruel and unusual punishment. The death penalty is universally acknowledged to be a cruel and unusual punishment. The Republic of Trinidad and Tobago continues to have to this day, a mandatory death penalty upon conviction for the offence of murder, irrespective of the circumstances of the offence. “Savings clauses” feature in the constitutions of all Commonwealth Caribbean countries. A savings clause is a provision in a constitution which protects any law that was validly in force before the country’s adoption of the constitution. It protects laws that might otherwise be struck down as unconstitutional on human rights grounds. The historical purpose of savings clauses was to secure “an orderly transition from colonial rule to independence” (per Lord Hope in Watson v R [2004] 64 WLR 241) but as Lord Nichols observed in his dissenting judgment in Matthew v State of Trinidad and Tobago [2004] UKPC 33, they “were intended to smooth the transition, not to freeze standards for ever.” Upon independence, Caribbean nations retained the JCPC as their final Court of Appeal. In 2005, however, following collaboration amongst Caribbean Community Nations (“CARICOM”) and the earlier signing of the Treaty of Chagaramas, the CCJ was created. It sits in Trinidad and Tobago’s capital city and acts in a dual capacity, as an international court of original jurisdiction in relation to Treaty of Chagaramas matters, and as the final Court of Appeal for Barbados, Belize, Guyana, and Dominica in relation to all civil and criminal matters. At the time of writing, a motion has been proposed and seconded in the Senate of Trinidad and Tobago to adopt the CCJ as Trinidad and Tobago’s final Court of Appeal: whether the majorities needed for legislative and constitutional change will be achieved in each of the country’s legislative chambers remains to be seen. Before turning to examine the JCPC decision in Chandler which conflicts with the CCJ decisions in Nervais, McEwan and Bisram, it is necessary to set out what was, and, following Chandler, remains, the law as settled by the JCPC. Matthew v State of Trinidad and Tobago [2004] UKPC 33   In Matthew, the 5:4 majority of a specially convened 9-judge court held that the mandatory death penalty for murder in Trinidad and Tobago was an existing law for the purposes of section 6(1) of the country’s 1976 Constitution. It was thus protected from constitutional challenge on human rights grounds. The appellant in Matthew submitted that section 5 of the Act which brought the 1976 Constitution into effect required all existing laws to be modified so that they complied with the human rights provisions of the Constitution, and that this could only be achieved by deeming the death penalty provision discretionary and permissive rather than mandatory. Section 5 provides that “existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Act.” The Board held, however, that by section 2 of the Constitution, the Constitution declares itself to be the supreme law of Trinidad and Tobago, and that section 5 of the Act, which brought it into being, formed no part of it. When read as a free-standing statement of the supreme law of Trinidad and Tobago, the Constitution retained the savings clause in clear and unambiguous terms at section 6(1). Accordingly, the 1925 mandatory death penalty provision was saved by section 6 of the Constitution, and it did not have to be modified, read down or interpreted in a way which gave effect to the co-existing human right guaranteed in section 5(2)(b). Boyce v The Queen [2004] UKPC 32 In Boyce, an appeal from Barbados against the then mandatory death penalty in that country, it was argued that the penalty was incompatible with the right not to be subjected to inhuman or degrading punishment conferred by section 15(1) of the country’s Constitution. The Board had to decide whether the penalty was saved by the savings clause contained in section 26 of the Constitution and if so, whether it could be modified or read compatibly with the section 15(1) right. As in Matthew, the Board was asked to consider whether the modification provision contained in section 4(1) of the Barbados Independence Order 1966, which brought the Constitution into effect but formed no part of it, enabled existing laws to be modified to conform with the human rights provisions in the Constitution. The appellant argued that if an existing law could be modified to be read in conformity with the Constitution, this should be done; but if this was not possible, the existing law would remain saved by the savings clause! The Board accepted that absent the savings clause, the mandatory death penalty would not have been compatible with the right contained in section 15(1). However, the penalty was provided for by an unaltered re-enactment of an existing law. It was thus protected by the savings clause. As in Matthew, the majority concluded that to modify it to conform to section 15(1) would be wrong and ultra vires section 5(1) of the Barbados Independence Order 1966 which brought the Constitution into effect. The dissenting minority, upholding the correctness of the Board’s earlier decision in Roodal v State of Trinidad and Tobago [2003] UKPC was of the view that the savings clause, read together with the modification clause, did indeed permit the court to identify an inconsistency between an existing law and fundamental human rights in the Constitution, and to “modify the inconsistency out of existence” as Saunders P. put it more recently in the CCJ decision in McEwan (para. 58). The savings clause would only be needed where it was impossible to modify an existing law to make it conform with the Constitution. Lord Hoffman, however, delivering the majority opinion of the Board, put the conceptual difficulty with the appellant’s argument and Roodal in this way at paragraph 38: “Their Lordships find it hard to imagine why the framers of the Constitution should have wished to install such an arbitrarily incomplete mechanism for securing conformity between existing laws and sections 12 to 23. That all existing laws should have to conform to principles of fundamental rights would have been understandable. That all existing laws should be exempt is explicable. But that the question should depend upon the mode of expression or conceptual unity of the particular law defies rational explanation. It would immunise only those laws which for linguistic or conceptual reasons could not be brought into conformity by anything which could be described as modification or adaptation.” The majority further observed that applying the section 4 modification provision of the 1966 Order in the manner contended for by the appellant would have driven a coach and horses through the Constitution itself, the country’s supreme law. In short, judges had no power to modify otherwise valid laws and the power to change such laws vested in the legislature. Nervais v R [2018] CCJ 19 (AJ) In Nervais, the former President of the CCJ delivering a majority judgement of a Court which comprised seven Justices of Appeal, made the following observations about savings clauses at paragraphs 58 and 59: “The general saving clause is an unacceptable diminution of the freedom of newly independent peoples who fought for that freedom with unshakeable faith in fundamental human rights. The idea that even where a provision is inconsistent with a fundamental right a court is prevented from declaring the truth of that inconsistency just because the laws formed part of the inherited laws from the colonial regime must be condemned. Professor McIntosh in Caribbean Constitutional Reform: Rethinking the West Indian Polity (2002), commenting on section 26 noted that to give literal effect to the provision as written was to deny any special eminence to the Constitution and in particular, its fundamental rights over all other law. He emphasized that the “horror of this is brought home to the intelligent mind when one realizes that the literal consequence is to give prominence to ordinary legislation over the Constitution. It is incongruous that the same Constitution, which guarantees that every person in Barbados is entitled to certain fundamental rights and freedoms, would deprive them in perpetuity from the benefit of those rights purely because the deprivation had existed prior to the adoption of the Constitution. With these general savings clauses, colonial laws and punishments are caught in a time warp continuing to exist in their primeval form, immune to the evolving understandings and effects of applicable fundamental rights. This cannot be the meaning to be ascribed to that provision as it would forever frustrate the basic underlying principles that the Constitution is the supreme law, and that the judiciary is independent.” Nervais concerned appeals to the CCJ against findings by the Barbados Court of Appeal that the mandatory death penalty was constitutional despite the fact, as the Court of Appeal candidly recognised, “that the mandatory death penalty is inconsistent with and in violation of the international human rights law ratified by Barbados because, while the mandatory death penalty is inhuman and degrading punishment within the meaning of the Constitution, it is provided for in a law that predated the Constitution and is thereby afforded immunity from judicial challenge” (per Byron P. at para. 6). The Court of Appeal regarded itself as bound by Boyce until such time as it may be overruled by the CCJ. The issue was whether, notwithstanding the savings clause, the word, “shall” in the mandatory penalty provision might be modified to be read, “may” to give effect to a fundamental right and protection contained in section 11(c) of the Constitution, the right to “protection of the law.” The Court noted: “In this context … murder varies enormously with varying degrees of culpability … not everyone convicted of murder deserves to be executed and the courts should be required to consider each case separately and apply a sentence that is proportionate to the individual case…” (per Byron P. at para. 5). The CCJ had to first consider whether section 11 of the Constitution was a mere preamble to the human rights provisions contained in sections 12 to 23, as contended for by the State of Barbados because of the use of the words, “whereas” and “the following provisions of this chapter shall have effect…” in section 11. It then had to consider the relationship between sections 11, 18 and 26. The majority rejected the notion that section 11 was a mere preamble and affirmed it to be an enacting provision which “declares the entitlement of the fundamental and inalienable rights of the citizens of Barbados” (per Byron P. at para. 37). The savings clause provides that no existing law “shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23.” There is no reference at all to section 11 in the savings clause. A majority of 6:1 decided that section 11 declares the entitlement to, and provides the foundation of, the short list of fundamental rights set out in subsections (a) to (d). These include the right to protection of the law at section 11(c). This right is supplemented by section 18, the scope of which also required careful consideration. The Court concluded that the section provides a non-exhaustive list of the ways in which protection of the law might be safeguarded, but the section 11(c) right was wider in scope than the specific protections in section 18. The Court then went on to consider whether “protection of the law” includes or is the same as due process, connoting procedural fairness. Citing its earlier decision in Zuniga and others v Attorney General of Belize [2014] CCJ 2 at paragraph 49, in which the CCJ observed that in relation to mandatory or mandatory minimum sentences, courts should always examine such penalties with “a wary eye” because they might deprive the court of an opportunity to exercise the “quintessentially judicial function of tailoring the punishment to fit the crime,” the Court held that the right to protection of the law includes the right to a fair trial, which does not end at the conviction of an accused, but also includes the mitigation and sentencing stages of the process. By this carefully constructed and navigated route, the Court’s majority concluded that the mandatory nature of the death penalty violated the section 11(c) right to protection of the law. The Court then turned to section 1 of the Constitution which provides, “…if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” Accordingly, the death penalty provision was void to the extent that it imposes a mandatory penalty but valid to the extent that it is permissive. The Court also considered the question whether the provisions of section 4(1) of the 1966 Independence Order might be used to modify a law saved by section 26 of the Constitution – the argument rejected by the majority in Boyce. The Court commented: “We are satisfied that the correct approach to interpreting the general savings clause is to give it a restrictive interpretation which would give the individual full measure of the fundamental rights and freedoms enshrined in the Constitution. This interpretation should be guided by the lofty aspirations by which the people have declared themselves to be bound by. A literal interpretation of the savings clause has deprived Caribbean persons of the fundamental rights and freedoms even as appreciation of their scope have expanded over the years. Where there is a conflict between an existing law and the Constitution, the Constitution must prevail, and the courts must apply the existing laws as mandated by the Independence Order with such modifications as may be necessary to bring them into conformity with the Constitution. In our view, the Court has the duty to construe such provisions, with a view to harmonizing them, where possible, through interpretation, and under its inherent jurisdiction, by fashioning a remedy that protects from breaches and vindicates those rights guaranteed by the Bill of Rights.” (para. 68) Thus it was that the CCJ held by a 6:1 majority that section 11(c) of the Barbados Constitution provides an independently enforceable fundamental right which is immune from the savings clause; and, that section 4(1) of the 1966 Independence Order may be used to modify a law which is saved by the savings clause. McEwan v Attorney General of Guyana [2018] CCJ 30 (AJ) The current President of the Court, Saunders P. opened his judgement with these words: “Difference is as natural as breathing. Infinite varieties exist of everything under the sun. Civilised society has a duty to accommodate suitably differences among human beings. Only in this manner can we give due respect to everyone’s humanity. No one should have his or her dignity trampled upon, or human rights denied, merely on account of a difference, especially one that poses no threat to public safety or public order. It is these simple verities on which this case is premised.” Section 153(1)(xlvii) of the Summary Jurisdiction (Offences) Act in Guyana made it an offence for a man to wear female attire (and, for a woman to wear male attire) in a public place for an improper purpose. In February 2009, the appellants, who are transgender, were arrested and detained in police custody for a weekend. On Monday morning, they were brought before a Magistrates Court where they learned for the first time that they were being charged with the section 153(1)(xlvii) offence. They pleaded guilty because this was cheaper than instructing counsel to defend the charges. They were fined and the sentencing magistrate made inappropriate comments before they left the court. They later brought proceedings against the State challenging the constitutional validity of the law under which they had been arrested and prosecuted. They submitted that the offence breached their human rights under the Constitution. The Judge at first instance and the Court of Appeal of Guyana found that the offence was saved by the Constitution’s savings clause and therefore was not justiciable on human rights grounds. Only the legislature could change this. The Court of Appeal also rejected the argument that post-independence amendments to section 153(1)(xlvii) had caused it to lose its status as an existing law. The Court said the substance of the law had not been changed by these amendments, so it remained protected. The appellants appealed to the CCJ which had to consider whether the provision violated their rights to equality and non-discrimination, and to freedom of expression under Articles 146 and 149 of the Constitution. Articles 138 to 149 and 149 A – J of the Constitution contain the human rights and fundamental freedoms provisions. Articles 149 A – J were added to the Constitution in 2003. In a robust judgement the Court identified four reasons why the offence could not survive: The savings clause should have been restrictively construed because it is the Court’s duty to give a generous interpretation to provisions affording fundamental human rights. The Court of Appeal was wrong to conclude that the offence remained saved as an existing law notwithstanding several post-independence amendments; it had lost its character as an existing law by reason of those amendments. A restrictive rather than liberal approach to the savings clause would have allowed the Courts to declare the law invalid – (paras. 46 to 49). The savings clause did not apply to the following parts of the Constitution: Article 1, which characterises the State of Guyana as an indivisible, secular and democratic State; Article 40, which bestows a right to a happy, creative and productive life; and Articles 149 A – J, a series of new, separate and distinct rights concerning equality and equitable treatment before the law, which were added to the Constitution in 2003 following what Saunders P. described as “a thorough and democratic reform process” and which the Court agreed are numerically and qualitatively distinct from Article 149 – (paras. 50 to 53). The savings clause did not apply to Article 39(2) of the Constitution which requires Guyanese courts to “pay due regard to international law, international conventions, covenants and charters bearing on human rights” when interpreting any of the fundamental human rights provisions of the Constitution. The reception of Guyana’s international obligations into domestic law via Article 39(2), thereby rendering them enforceable by the citizen, placed greater pressure on Guyanese courts to interpret the savings clause as restrictively as possible so that Guyana might remain compliant with its obligations – (paras. 54 to 55). Described by Saunders P. as the most contentious approach, the courts should have first applied the modification clause contained in section 7(1) of Guyana’s Constitution Act to the relevant pre-independence law before attempting to apply the savings law clause. The CCJ concluded that the section 153(1)(xlvii) offence violated Article 149(1) (protection from discrimination), Article 149D (equal treatment and equality of persons before the law) and Article 146 (freedom of expression) and had no place in a modern secular democratic State. It admonished the magistrate for the inappropriate comments and stated that the Courts below should not have excused those remarks. Marcus Bisram v Director of Public Prosecutions [2022] CCJ 7 (AJ) There is no need to deal with the factual circumstances of Bisram. Suffice to say that the CCJ reaffirmed that the approach of the courts, when confronted with a conflict between the Constitution and an existing law, should be to first consider whether the existing law might be modified to be read in conformity with the Constitution – the “modify first” approach. Jay Chandler (Appellant) v The State (Respondent) (No 2) (Trinidad and Tobago) [2022] UKPC 19 In Chandler the JCPC was asked to consider whether Matthew had been wrongly decided considering the jurisprudence now emerging from the CCJ. Chandler was an appeal from Trinidad and Tobago, once again challenging the constitutional validity of the mandatory death penalty. Chandler’s sentence had been commuted to life imprisonment by the time of the appeal and the Board noted that Trinidad had not executed anyone since 1999. It noted further, however, that this was due, in part, to delays in the appellate process and commented that while the mandatory penalty remains in force, it provides lawful authority for the State to execute a condemned person unless they become the beneficiary of a presidential pardon under sections 87 and 88 of the Constitution. As in Matthew, it was not in dispute that the mandatory death sentence is a cruel and unusual punishment, that it contravenes section 5(2)(b) of the 1976 Constitution and is therefore liable to be declared void unless it can be saved as an existing law. Section 2 of the Constitution provides that the Constitution is the supreme law and any law that is inconsistent with the Constitution is void to the extent of the inconsistency. The Board noted that section 6 of the 1976 Constitution preserved many laws which existed before the adoption of that Constitution including the imposition of a mandatory death penalty. Lord Hodge reviewed the previous decisions of the Board culminating in Matthew and summarised the position at para. 32 of the judgement. This is worth reading and is set out in full in a more comprehensive version of this article. He then reviewed the CCJ decisions in Nervais, McEwan, and Bisram, before addressing the first, and indubitably most difficult hurdle that the appellants had to overcome: “stare decisis” and whether there were “very strong reasons” for the Board to depart from its earlier decision in Matthew. Departing From a Previous Decision In examining the difference that has emerged on this issue between these two courts of final appeal, and how the JCPC approached it in Chandler, it is important to have regard to the test which the Board was required to apply when asked to say that Matthew had been wrongly decided. Lord Hodge’s immediate focus was on “stare decisis”, a fundamental tenet of the common law, and on the importance of maintaining constitutional legal certainty. He said this at paragraph 57: “The Board would need to be satisfied that the decision was wrong and that it lacked a satisfactory foundation. It is not enough that the Board as presently constituted might take a different view if considering the matter for the first time. In Lewis v Attorney General of Jamaica [2001] 2 AC 50, 75 Lord Slynn of Hadley in delivering the opinion of the Board stated that the Board should be “very reluctant to depart from recent fully reasoned decisions unless there are strong grounds to do so.” Quoting Lord Hoffman in Lewis, Lord Hodge continued: “If the Board feels able to depart from a previous decision simply because its members on a given occasion have a ‘doctrinal disposition to come out differently’, the rule of law itself will be damaged and there will be no stability in the administration of justice in the Caribbean.” Lord Hodge then considered the circumstances in which the United Kingdom’s Supreme Court will depart from an earlier decision. That a previous decision of the House of Lords or Supreme Court is wrong has never been a sufficient reason to depart from it. “More is needed”, he said: “That extra thing may be that the decision under challenge is hampering the proper development of the law or has otherwise distorted the law. It may be because the earlier decision has given rise to uncertainty in the law… Further, the court has recognised that there is less scope for reconsidering a decision on a question of statutory interpretation than there may be in relation to a decision involving a judicial exposition of the common law. Respect must be given to the words and purpose of the statutory provision and, where a court of final appeal has given an authoritative interpretation of such a provision, it will normally be for Parliament to change the law if that interpretation is thought to be incorrect… In Attorney General for Ontario v Canada Temperance Federation [1946] AC 193, 206 Viscount Simon stated that ‘on constitutional questions it must be seldom indeed that the Board would depart from a previous decision which it may be assumed will have been acted on both by governments and subjects.’” – (paras. 59, 61 and 62) “Nonetheless … in Lewis … Lord Slynn stated … that where a man’s life was at stake, where the death penalty was involved, the Board should be prepared to depart from prior decisions if it were satisfied that the earlier cases had adopted the wrong approach…” – (para. 65) Applying the “wrong approach” test, Lord Hodge reviewed the historical consistency of the Board’s approach to appeals concerning savings clauses and existing laws. He remarked that if the Board were to now depart from its previous decisions and hold that the existing laws of Trinidad and Tobago were modified in 1962 when the first Constitution came into effect, this would have the undesirable effect of introducing considerable uncertainty into the law of Trinidad and Tobago because the people and successive governments of Trinidad and Tobago had arranged their affairs since 1962 on the basis that the existing laws had not been modified! He expanded upon this at paragraph 72, suggesting that if constitutions had taken effect without savings clauses, or with savings clauses that were only triggered after an existing law had been modified by a judge, it would have risked creating “substantial legal uncertainty” in the transitional period and beyond and it would have placed “a great burden on the courts” of those countries to “re-establish a degree of legal certainty.” He suggested that the “potential for…challenges [would have been] legion” if the correct approach since 1962 had been to “modify first” and had this been so, “the savings clause would have been deprived of almost all utility.” He saw considerable “force in the suggestion that savings clauses served a historical purpose in avoiding the legal uncertainty which the unqualified introduction of a written Constitution would have entailed.” (para. 73) The decision in Matthew, he said, properly “gave priority to the Constitution as the supreme law of Trinidad and Tobago over the statute which enacted it…and is consistent with the historical purpose of the savings clause when newly independent states adopted for the first-time written Constitutions which contained generally worded statements of fundamental rights.” (para. 72) The Board decided that Matthew had not been wrongly decided. Amongst the decisive factors were: (a) “stare decisis,” particularly as the Board had convened a 9-member court in Matthew and Boyce to provide an authoritative and definitive ruling on this question; (b) the importance of maintaining constitutional legal certainty in the interpretation of written constitutions and other statutory instruments, and; (c) critically perhaps, the absence in the Trinidad and Tobago Constitution of a provision akin to section 11(c) of the Barbados Constitution which might have allowed the Court to side-step the savings clause. In the final analysis, Lord Hodge acknowledged that “both sides of this argument are tenable.” He correctly recognised and respected the CCJ’s right to develop its own jurisprudence, and at paragraph 57 he went so far as to say, “it is not enough that the Board as presently constituted might take a different view if considering the matter for the first time.” Precedent, constitutional legal certainty, the historic purpose of savings clauses and “stare decisis” won the day. Conclusion These two distinguished courts of final appeal, comprising some of the finest legal minds, have parted company on, what is, a fascinating topic. To say that it has troubled and divided eminent jurists of the highest calibre is an understatement. The reader can decide how best to answer the question posed by Sir Dennis Byron at the beginning of this article. Should anyone be courageous enough to have a go at trying to reconcile the two competing positions, a good starting point might be to recognise the following: Lord Hodge expressed the view that the CCJ’s reasoning which conflicts with that of the JCPC was not essential to the decision in Nervais (para. 70). The 1976 Constitution of Trinidad and Tobago does not have an enacting provision, akin to section 11(c) of the Barbados Constitution, which is immune from the savings clause. In giving legal effect to section 11(c) and acknowledging that it bestows a separately enforceable right on the citizen, the CCJ was able to ignore the savings clause because it does not refer to 11(c). This, said Lord Hodge, “was sufficient on its own to determine the appeal.” Therefore, “as the savings clause…did not protect the existing law from constitutional challenge under section 11…the law could be modified under section 4 of the 1966 Independence Order.” (para. 69) It is difficult to argue with the logic of this. The 1976 Constitution was adopted when Trinidad and Tobago became a Presidential Republic. Lord Hodge notes that “it was a conscious democratic decision to preserve existing laws and not to convert the savings clause into a transitional provision…Parliament had the option of dispensing with [it]…and deliberately chose not to do so. By making that choice the legislature reserved to itself the responsibility for updating the laws of Trinidad and Tobago to reflect developing appreciation of fundamental rights and freedoms and changes in social values.” (para. 69) There is undeniable force in this observation. The significance of such an important decision, taken by a country about to declare itself a Presidential Republic, ought not to be understated or brushed aside. In Trinidad and Tobago, for the moment at least, any modification to the mandatory death penalty will have to await legislative change. Indeed, in a stark example of parliamentary supremacy, this is the route that was taken by Jamaica in 2011 when it decided to render the decision in Pratt and Morgan v The Attorney General for Jamaica and another (Jamaica) [1993] UKPC 1 void through legislative and constitutional change rather than to give it constitutional protection. Lord Hodge noted that the first three reasons given by the CCJ in McEwan explaining why the offence could no longer stand, were not, in fact, in conflict with the majority’s reasoning in Matthew and Boyce. However, none of these reasons was available to the appellant in the Chandler appeal (para. 71). It remains to be seen if Trinidad and Tobago will ever choose to adopt the CCJ as its final Court of Appeal. And should it do so, how the CCJ might answer the question asked of the JCPC in Chandler, when presented with an appeal requiring a detailed analysis of the 1976 Constitution of Trinidad and Tobago against that country’s constitutional and legislative history. The current “modify first” approach of the CCJ, coupled with its stated desire to fashion a remedy that protects the citizenry under its jurisdiction from human rights breaches, would tend to support a belief that the absence of a specific provision in the Constitution of Trinidad and Tobago, akin to section 11(c) in Barbados, will present no real impediment to the CCJ striking down the mandatory death penalty provision, if it is ever asked to do so. However, this too, remains to be seen and perhaps ought not to be taken as a foregone conclusion. 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WhatsApp as a Means of Giving Evidence in Criminal Trials   As the curtain falls on the pandemic, the Court of Appeal has issued guidance on the future use of technology in criminal trials. In Abdul Kadir v R [2022] EWCA Crim 1244, the Court rejected submissions by an Appellant that his convictions in the Crown Court were unsafe where the trial judge had refused his application to call evidence from his half-brother in Bangladesh via WhatsApp. Although the Court refused the application, it did shed light on the question whether judicial orders for live links for witnesses may extend to the use of WhatsApp or are restricted to the more conventional Cloud Video Platform (CVP) or Microsoft Teams operating systems. Delivering the Court’s judgment, Lord Justice Holroyde held that evidence may permissibly be given by witnesses via WhatsApp in the interests of justice. This is the case under both the temporary provisions that were in force during the pandemic (when the Appellant was tried) and the provisions as they now stand under the expanded regime imported by the Police, Crime, Sentencing and Courts Act 2022 (“PCSCA”).   Background Abdul Kadir was charged with ten counts of rape, attempted and indecent assault in May 2019. He was tried at Snaresbrook Crown Court in May 2021. During his trial, he applied to adduce evidence from his half-brother, Sarmad, living in Bangladesh. It was anticipated that Sarmad would give evidence via CVP. The trial judge granted the application, but CVP proved impracticable and a satisfactory connection with the witness could not be secured. As such, an application was made for him to give evidence by way of WhatsApp. The judge refused the application on the basis that she had carried out her own enquires and formed the view that it would not be a safe and secure method for receiving evidence. Mr Kadir was ultimately convicted and sentenced to a special custodial sentence of 18 years, comprising a custodial term of 17 years and an extension period of 1 year. He appealed against conviction, submitting that the trial judge had erred in refusing the application for Sarmad’s evidence to be given via WhatsApp. In so doing, she had impeded his ability to fully challenge the complainants’ evidence and obscured a full picture of the facts from the jury. The law on Live Links During the pandemic, the criminal justice system was confronted with the need to accommodate a broader range of participants in criminal proceedings via remote means. As such, Section 51 of the Criminal Justice Act 2003 (“CJA”), which permitted witnesses to attend court via live links as a matter of judicial discretion, was temporarily amended to include a broader class of persons within its remit. Significantly, defendants were not excluded.  The amendment appears to have served its purpose in keeping the criminal courts’ functioning during periods of lockdown and social distancing. Now that the pandemic has begun to subside and the world is steadily “learning to live with Covid”, many temporary measures, including the provisions governing grants of live links to participants in criminal proceedings, have been given a permanent footing. Section 200 of the PCSCA, which entered into force on the 22nd June 2022, is the source of the ‘new regime’. It not only amended Section 51 to make permanent the power to grant live links to a broader range of persons; it also introduced new powers altogether, such as the power to grant live links to juries in limited circumstances. Importantly, the new regime is supplemented by definitive statutory guidance from the Lord Chief Justice, which neatly summarises the latest  framework.[1] Decision Given that Mr Kadir’s trial took place during 2020, when the previous ‘temporary regime’ was in full flow, the Court of Appeal’s judgment focusses its analysis on the law as it applied at that time. As such, Holroyde LJ begins the judgment with a helpful overview of the position. It can be distilled as follows. Essentially, during ‘Covid times’, Section 51 CJA provided that a person could take part in criminal proceedings through the use of “a live video link”.[2] According to Section 56(2D) of the same Act, “a live video link” meant a live television link or “other arrangement” that enables the participant to see and hear all other persons participating in proceedings and vice versa.  Moreover, Holroyde LJ reminds the parties that all criminal tribunals have duty to carry out active case management under the Criminal Procedure Rules 2020 (“CrimPR”) which includes making use of technology. This extends to granting “appropriate live links”, irrespective of whether the parties have made express applications to that effect.[3] As to what constitutes an “appropriate live link”, the Criminal Practice Directions 2020 (“CPD”) provide that it:  “is not a term of art. It has the ordinary English meaning of ‘fitting’ or ‘suitable’ […] What degree of protection from accidental or deliberate interception should be considered appropriate will depend upon the purpose for which a live link or telephone is to be used. If it is to participate in a hearing which is open to the public anyway, then what is communicated by such means is by definition public and the use of links such as Skype or Facetime, which are not generally considered secure from interception, may not be objectionable…”[4] Another dimension to the debate is the issue whether a witness who is based overseas is permitted under the laws of that jurisdiction to give evidence in connection with criminal proceedings in England and Wales without obtaining prior permission. In fact, many countries require an International Letter of Assistance (ILOR) before deciding whether to grant their nationals permission to participate in proceedings. In this respect, regard should be had to the principles set out in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), which usher practitioners to seek clarity from the Taking of Evidence Unit within Foreign, Commonwealth & Development Office (FCDO) as to whether there are diplomatic objections associated with calling remote evidence from witnesses in other jurisdictions. Turning to the Appellant’s grounds of appeal, the Court roundly rejected the submission that the trial judge had wrongly refused the application for evidence to be given by way of WhatsApp. This was primarily because Section 6C of the Criminal Procedure and Investigations Act 1996 (“Notification of Intention to call Defence Witnesses”) had not been properly complied with by the Defence. In effect, no written notice of the proposed witness had been given at any stage. His name was introduced into proceedings mid-way through the trial, and the Court and Crown therefore had limited means of checking the adequacy of the proposed arrangements or to consider suitable alternatives. However, as to the question whether WhatsApp would be suitable for receiving his evidence had Section C otherwise been properly complied with, the Court determined that it would. At paragraph 39 of the judgment, Holroyde LJ states in no unclear terms: “WhatsApp was capable of being an “other arrangement” which could meet the definition of a live video link in s56(2D) of CJA 2003. Given that it uses end-to-end encryption, it was capable of being regarded as sufficiently secure for use, in particular in the context of giving evidence in open court.” As such, it is now established law that live links in criminal proceedings extend to WhatsApp video-calling – providing it is in the interests of justice and the ordinary statutory requirements for a grant of live links are met.   Implications The decision will come as welcome news to practitioners and defendants wishing to introduce evidence into proceedings from witnesses central to their cases. As experience has shown, CVP, Skype and Microsoft Teams can be impracticable and difficult to operate at times. WhatsApp, on the other hand, is user-friendly, more widely accessible and therefore potentially conducive to better quality communications. However, it is important not to jump the gun. We would be mistaken if we thought that WhatsApp will be the primary mode of giving evidence for witnesses not present at court going forward. In its decision, the Court made plain that judges should endeavour to decide which ‘tech’ to grant in furtherance of a live links order on a case-by-case basis. Care should be exercised to ensure that the choice of software or application is granted in view of the overall circumstances of the case. See the dicta of Holroyde LJ at paragraph 39: “We would add that a judge in similar circumstances today would similarly have the power to direct a live link via WhatsApp under the statutory provisions which are now in force, though it would of course be for the judge concerned to make a fact-specific decision in the circumstances of the particular case.” It is important to bear in mind that the use of WhatsApp may also pose novel difficulties in respect of witnesses who give evidence remotely. This is primarily because WhatsApp is operated mainly, albeit not exclusively, from a mobile phone device. As such, there is a risk that witnesses may be susceptible to a degree of pressure or coaching that is not apparent to those sat at the other end of the link in the courtroom in England. This could be, for example, through receiving text messages whilst using the device or having a persuasive family member positioned out of sight. By the same token, witnesses could screenshot or record proceedings in breach of judicial warnings to the contrary. This risk may be particularly acute where witnesses experience English language difficulties and are unaccustomed to the rules regulating criminal proceedings in this jurisdiction. Moreover, where contempt is committed in this manner, it is highly unlikely that sanctions could realistically be imposed on an offending witness. As such, Courts will inevitably tread very carefully when deliberating whether to grant applications to give evidence via WhatsApp. Whilst it is a potentially very valuable tool, practitioners and judges should be satisfied that the risks set out above can be obviated. The other outstanding question is whether this latest decision opens the door for other social media platforms to make a debut in English courtrooms. Although WhatsApp has a global user base, some countries prohibit use of the application altogether or promote the use of local alternatives. In addition, some witnesses may prefer Facebook Messenger, Instagram or Zoom video-calling due to interface or accessibility issues. Whilst it is tempting to see Abdul Kadir v R as authority for the proposition that live links should now extend to all social media applications providing video-calling facilities, it should be remembered that the pendulum swung in favour of WhatsApp on this occasion in great part due to its end-to-end encryption. As such, it should not be assumed that the decision has paved the way for other applications to be used where to do so would meet the interests of justice. In reality, it remains early days and the parameters of the new regime governing the use of live links in criminal litigation in the post-Covid era are still to be tested. Finally, participants in criminal trials should be alive to the (general) possibility that calling evidence from overseas may offend the domestic laws or diplomatic sensibilities of other jurisdictions. In these circumstances, Courts and practitioners should bear in mind that a decision to grant live links may impinge upon the UK’s international relations. Where this is the case, a question plainly arises as to whether the public interest is still being served. Certain jurisdictions will naturally operate more stringent restrictions than others, and these are nuances that will need to be factored into any applications to call evidence from overseas. Evidently, the power to grant live links in the context of overseas witnesses will engage a discrete set of questions which judges and practitioners will need to navigate sensitively, bearing in mind the ‘bigger picture’. Whilst live links – and now WhatsApp – are here to stay, it is clear that the regime governing their use may continue to evolve in scope and complexity. Fahrid Chishty, 25th September 2022 [1] See https://www.judiciary.uk/wp-content/uploads/2022/07/Live-links-Guidance-for-criminal-courts-July-2022.pdf [2] See Section 51(1)(b) of the Act [3] See r3.2(4) CrimPR [4] See Part 3N.4, CPD Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

On 22 September the Times Law section published an article by our Dr Felicity Gerry KC on the Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill under the title “A glimmer of hope for hundreds wrongfully convicted of crimes”. You can read the article (paywall) here: https://www.thetimes.co.uk/ – some of it is reproduced below. A Private Members’ Bill currently before Parliament identifies the miscarriage of justice in ‘joint enterprise’ cases and passed its first reading in the House of Commons on 6 September 2022. The Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill, seeks to amend the test which prevents those affected by an error of law from appealing their conviction unless they can prove they ‘would not have been convicted’ (the test articulated in R v Johnson and others [2016] EWCA Crim 1613). As is well known, hundreds, if not thousands, of people, often young, black and/ or with a disability were convicted of crimes they did not commit and have thus far been refused leave to appeal. In murder trials they were alleged to be accessories merely because they ‘foresaw’ a friend might commit a crime. In R v Jogee [2016] UKSC 8 (Jogee), now 6 years ago, the UK Supreme Court decided there had been an error of law which had been wrongly adopted for 30 years and only those who intended to assist or encourage a crime should be convicted as accessories. Subsequently, the Court of Appeal set the bar for appeal so high that only one case has passed the threshold. That person went on to be one of the London Bridge heroes who tackled the terrorist attacker. Others who have been prevented from appealing are Alex Henry who lives with autism and did not touch the victim. Asher Johnson, a young black youth who withdrew before a knife was produced and T’Shai Ennis, a black youth with a cognitive disability whose application for leave to appeal was refused last month, who also did not touch the victim. Dr Gerry KC currently represents all three of these young men. Henry and Johnson’s cases are current at the Criminal Cases Review Commission after filing petitions for mercy. Following the refusal of leave in Ennis’ case [2022] EWCA Crim 1088, the UK Supreme Court is ‘functus’ so it cannot consider the race and disability issues raised both in relation to evidence of bad character and knowledge of the essential facts for the purposes of complicity. The Ennis decision at paragraphs 38 and 39 reads as follows: Dr Gerry QC contended that the substantial injustice hurdle sets far too high a threshold, which has proved impossible to surmount in practice. It amounts to a lack of access to justice and involves the surreptitious return of the proviso previously set out in section 2(1) of the Criminal Appeal Act 1968 which was repealed on 1 January 1996. Further, it is discriminatory. Dr Hulley and Dr Young’s work illustrates the over-representation of black and ethnic minority men in cohorts of people convicted under joint enterprise principles. She argued that the test also raises particular issues relating to the convictions of those with disabilities which may have complicated the approach to foresight. However, the substantial injustice test is well established. It flows directly from the Supreme Court’s observations as to the rationale for it in Jogee. The approach to cases of this nature was clearly set out by this Court in Johnson. We do not consider that there is any basis for us to depart from it. It follows that to the extent that the applicant relies on the change of law since Jogee, in order to justify an exceptional grant of leave to appeal his conviction, he must show substantial injustice. Accordingly, the Court of Appeal has cemented its view that the substantial injustice test will apply in a very broad range of factual circumstances. This will not be a case-by-case approach. Priority is given to finality before the court and the opinion of the court on guilt. It seems remarkable that, whilst the UK Supreme Court was brave enough to admit an error, there is no movement to correct the consequences. At present the solution seems to be a matter for the Executive. There is a current review by the Law Commission into the functioning of the Court of Appeal, so the Bill is timely. It can only be hoped that Parliament will have the political will to support those families affected who have seen their children and other loved ones incarcerated because of a miscarriage of law. It is notable that the famous appeal by Derek Bentley was successful decades after he was hanged when it was accepted that his jury were wrongly directed. There is therefore a conflict between court of appeal authorities – now wrongful judicial directions are not sufficient to overturn a conviction. In Ennis, submissions on incorrect directions were specifically rejected.  Justice is always slow but, as these prisoners grapple with a sentence that research by Cambridge University has shown lacks legitimacy, the pressure is on to bring some trust back to the appellate system. The story does not end there: Since 2016, cases have been before the courts using the ‘intention’ test, but the law has developed to allow people to be convicted on little or no contribution to the crime. In one recent trial which Dr Gerry KC defended, where CCTV literally showed the defendant did not join in, the fact that he got out of a car was said to be enough to convict him of murder. Fortunately, the jury saw sense and he was acquitted. It is at least arguable that the law on complicity has lost sight of the element of causation. It is not entirely clear why there is any appetite to convict people who make no contribution to a crime but in murder this puts people’s children and family members at risk of a mandatory life sentence with a minimum term of 25 to 35 years for a killing they did not do. It is a crisis in criminal justice that needs to be rectified and the Bill is a first step in that direction.  

As the Law Commission of England and Wales announces a review into the appeals system, Dr Felicity Gerry QC considers the wider problems in joint enterprise homicide that feed into the restrictive appellate process and she offers some potential solutions. Whatever the media click bait on joint enterprise, multi defendant trials and appeals are largely conducted by a profession and judiciary lacking in diversity, so we need to consider whether the system is failing people of colour and what inferences are being drawn due to bias. In 2022, three cases highlight the current enthusiasm for prosecutors to rely on an allegation of a “plan” and the potential injustices that may achieve both at trial and on appeal: Conviction of young people (particularly those of colour) based on being complicit in someone else’s crime leads to a mandatory life sentence in England and Wales. The prisons are rapidly filling up with youths who commit robbery or violent disorder but someone who they are with kills during those crimes, and they are found to be equally responsible. As alleged secondary parties, they are no real risk to the public. They are often people of colour and/or with cognitive disabilities. The Court of Appeal will not entertain any challenge to incorrect legal directions – accepting a broad range of errors. Cases turn on the prosecution case theories, not on the potential truth. The past 25 years of searching for factual tests mean that, whilst the test for men’s rea was corrected in Jogee, the conduct element is now so low that people are convicted of serious crime for moral or minimal assistance or encouragement and face the maximum penalty. What this means is that the prisons are filling up with people who did NOT kill and largely it depends on whether the jury believe them or not – being “sure” that someone is party to a plan is ultimately turning on credit, not fact or law. In Jogee one ground of appeal was that joint enterprise “over-criminalises secondary parties”. That ground has still not been answered. In April 2022 Ryan Graham (a young black man) was convicted of murder after a trial at the Old Bailey. The prosecution case was that he and two others planned to sell a kilo of cannabis to the deceased and that a plan was hatched, at some unspecified stage, to rob the deceased, rather than supply the goods. The trial judge accepted that there was insufficient evidence to say the alleged plan was hatched in their car on the way to the meeting place and acquitted the driver, who was later acquitted by the jury of assisting the offenders by driving them away after the killing. The prosecution relied on CCTV and witness evidence against the three remaining defendants, including Ryan Graham, to infer that the use of knives would be part of the alleged “plan” to rob. There was clear evidence that two co-accused were in possession of knives. The trial judge concluded on sentence that he could not be sure that Ryan Graham had a knife which means Ryan Graham was NOT a killer but sentenced as a secondary party. Witness evidence was that Ryan Graham was searching the deceased’s pockets whilst one co-accused held the deceased in a headlock (also with a knife taken out from up his sleeve) and another was chasing the deceased’s brother with a knife that he had secreted down his trousers. Ryan Graham gave evidence that he was not searching pockets, the attack was a surprise to him, and he was trying to stop it. He accepted running from the scene. There was evidence he had blood on his clothing which put him close to the killing. Accordingly, it was his case that there was no plan or if the others had a plan, he was not a party to it. He gave evidence denying participating in murder. He wrote to the police telling them where his co-accused had disposed of the knife, and he had supportive character references that he was a gentle and kind individual with some cognitive limitations. He was not believed. He was sentenced to a mandatory life sentence with a minimum term of 27 years. This means he has a life sentence for the murder of someone he did NOT kill. It also means that the question of whether there was a plan or not effectively turned on whether the jury believed the prosecution case theory or the accused person. It is not exactly a sound basis for a conviction but in the current climate, it seems to be the basis for the criminal law. There are partial results which also expose problems: In July 2022 Adam Qayum (a young Asian man) was found not guilty of murder after a trial in Bradford. The prosecution case was that one of his friends was attacked in Bradford town centre and Adam Qayum returned with five others to exact revenge. The evidence from independent witnesses was that they returned to collect a mobile telephone and three took knives to scare the attackers if they reappeared. Two defendants waved knives and one killed the deceased and seriously wounded another youth. He suffered from mental health issues. The three with knives were convicted. The first of murder, on the basis that he was the principal offender. The other two with knives of manslaughter, on the basis that they assisted or encouraged him to harm, despite them giving evidence that this was not true and CCTV evidence that they did not harm anyone. The other three were acquitted. Despite it being literally visible on CCTV that Adam Qayum did not join in, the prosecution still sought to allege this was a joint plan and, even though the jury acquitted three defendants, which tends to suggest there was no plan, the trial judge sentenced based on a revenge attack. Adam Qayum and the other two acquitted gave evidence and were either believed or at least the jury could not be sure that the prosecution case theory was correct. Those convicted, including the two who did NOT kill, all face life imprisonment with long minimum terms and the judicial sentencing remarks forever records the events as a revenge attack, even though the jury may well have rejected that scenario. Despite two eminent experts agreeing that the principal offender was suffering a psychosis at the time, the judge sentenced on the basis that he was lying about its effects at the time – again credit being at the forefront of decision making. The others did not or could not have known about his mental health issues and yet were convicted which means they were not believed. Is this really a search for evidence or a punishment for lying? Without reasons from a jury, we will never know. Also in July 2022, the Court of Appeal rejected an application for leave to appeal by T’Shai Ennis (a young black man) Reported at [2022] EWCA Crim 1088. He was in a car, not at the scene when someone was killed in 2015. His jury did not know he had a cognitive disability so could not evaluate whether he could assess what others would do. Rap music was used against him. Adverse inferences were drawn from his silence in police questioning, even though it is known that silence is driven by distrust of the police and prosecution. The prosecution agreed that his jury were not directed on parasitic accessorial liability (which was expunged in Jogee) but nonetheless the trial judge used foresight as a test for men’s rea and directed the jury that there was a premeditated plan – the very question the jury were supposed to answer. Thus, the jury were misdirected on in both fact and law and were not fully informed about T’Shai’s cognitive limitations and were not told of the burgeoning evidence that race plays in inferences being drawn adversely against young black people. His application for leave to appeal being refused means the Supreme Court is ‘functus’. In these types of appeals, evidence is emerging that there has been a huge drop in leave / grants since 1998 and even where the ‘substantial injustice’ test does not apply, the Court of Appeal will not accept a conviction is unsafe. These should be serious statistics for the Law Commission to consider. The ultimate issue of guilt is therefore not turning on complicity law but on inferences sought to be drawn by prosecutors, confirmation of those inferences by judges and significant weight being placed on credit. To what extent this includes confirmation bias is not known. Some in the judiciary might say that they are stuck with CPS decisions to charge murder when alternatives of violent disorder or robbery are available. Others in the judiciary might silently agree that mandatory sentencing is brutal, and they would prefer a discretion to sentence secondary parties more consistently. Ultimately it is unlikely they will say so. The Court of Appeal may be working on the basis that finality takes precedence over safety – the accuracy of this will hopefully be revealed by the Law Commission Review. In the meantime, what are the remedies? The first step is to read the research by Hulley and Young on adverse inferences that demonstrates joint enterprise lacks legitimacy amongst prisoners. To view our webinar on this issue click here Next is to audit the police for conduct in questioning suspects of colour and bias in the collation of evidence and character, particularly alleged ‘gang’ databases and how music is disproportionality used against people of colour. To view our webinar on the rap music issue click here Other remedies may well be revealed by an audit of the CPS decision making on charges, including the prosecutorial formulation of case theories and how equitable briefing is managed to ensure diversity of expertise. This was last attempted pre-Jogee by Birkbeck in a project in which Dr Gerry QC was involved – read here: Ultimately, Dr Gerry QC has long called for an audit of prisons to see who is in there but was NOT a killer – an issue now picked up by the campaign group JENGbA and apparently of interest to David Lammy MP whose ground breaking report on race and criminal justice can be read here. The swiftest remedy is to (a) abolish mandatory sentencing and (b) grant pardons to reduce sentences for those already convicted. See Dr Gerry’s article on this in the Australian context here Ultimately developing the law to ensure we have a Court of Appeal that is keener to grant retrials where race and disability are issues for juries to consider will depend on how robust the Law Commission Review is on such issues. We shall have to wait and see – In the meantime, to see Dr Gerry’s article on race and joint enterprise click here Dr Gerry QC acted for the defence for Ryan Graham leading Marie Spenwyn of Libertas Chambers, instructed by Pillai and Jones Solicitors. Dr Gerry QC acted for the defence of Adam Qayum, leading Sanjeev Sharma of Equity Chambers, instructed by Ali and Co Solicitors. Dr Gerry QC acted for T’Shai Ennis on appeal, but not at trial, instructed by GT Stewart Solicitors. Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

As the New York State Senate debates Senate Bill S7527, to limit the admissibility of evidence of a defendant’s creative or artistic expression against such defendant in a criminal proceeding, this article sets out some of the issues we discussed in our Libertas Lecture / Webinar. We raise concerns about the way rap lyrics are used in criminal trials in a way that does not appear to arise in relation to other genres. The issues outlined below are explored in more detail in A Owusu-Bempah, ‘The Irrelevance of Rap’ [2022] Criminal Law Review 130. For decades, rap has been one of the most popular and profitable genres of music worldwide. While some subgenres of rap, such as ‘drill’, are characterised by first-person accounts of criminality, this should not be taken at face value. Rap relies heavily on hyperbole, figurative language and dark humour. It can operate as a form of social commentary, but much of the content is fictional and driven by commercial interests, as violence sells. For many, rapping is seen as a route to financial security, but it can also be cathartic, and generate a sense of belonging, particularly beneficial for those who come from marginalised communities. As well as being a vibrant part of youth culture, rap music has become a target for police and prosecutors, with lyrics and music videos seemingly offering a means of linking suspects and defendants to crime. However, when rap is presented as evidence in court, the artistic conventions and social influences of the genre are often overlooked, and the use of (often irrelevant and unreliable) rap as evidence at criminal trials risks unduly prejudicing jurors against defendants. This is evident from the case law. An analysis of over 30 reported judgments in the Court of Appeal of England and Wales (Criminal Division) in which rap lyrics or rap videos were used as evidence at a criminal trial or treated as an aggravating factor at sentencing shows that rap music is used almost exclusively as evidence against young Black men and boys (usually teenagers) who are accused of serious offences (namely weapons offences and violent offences, including homicide) in London and other urban areas. Often these are cases of ‘joint enterprise’ or alleged secondary liability, where rap is used to link defendants to each other and the crime, and often, or at the same time, as evidence of gang involvement, to place an offence in a gang context and to highlight association through music as a question of character, not culture. It is an extra burden for defence counsel to deal with such tropes, especially in highly charged murder or conspiracy to murder trials where some accused persons are associating on the periphery of a group through music. This profile of cases, properly analysed, is concerning: Prosecutors may benefit from themes and aesthetics within rap music, by erroneously taking rap literally and using it to help build a case in which Black boys and men represent, or fit into, stereotypes of what a criminal looks or behaves like, including by branding them as ‘gang members’.  The term ‘gang’ is vague and has been disproportionately applied to Black young people, including many who are not involved in crime, and in a way that does not correlate to the commission of serious youth violence.[1] This disproportionate application equips the term ‘gang’ with the ability to evoke images of Black criminality. Rap music can be used to amplify those images and further link Black men and boys to crime. It is also concerning that, in their capacity as ‘gang experts’, police officers are often relied on to interpret and contextualise rap lyrics and videos. Being an expert on gangs does not, without more, make one an expert on rap. Unless the officer has studied the history, culture and conventions of the genre, has kept up to date with ever-changing slang, and/or is actively involved or immersed in rap culture, it would be more appropriate for the court to hear from musicians, industry insiders and social scientists, particularly scholars of hip-hop, rap and popular culture. We must also question the extent to which police can act impartially in this role.  The organisation JUSTICE, has gone as far as to say that, in the context of explaining drill music, ‘the use of police officers as experts amounts to no more than the prosecution calling itself to give evidence.’[2] In one homicide trial, in which Dr Felicity Gerry QC defended, one lyric relied on by the prosecution to impute 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 defence, not the police officer who gave evidence. In that case, some music 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 Felicity’s client lived elsewhere. Her client and another were acquitted. A co-defendant, an emerging rap artist, was convicted. Perhaps of most significance to criminal lawyers is the seemingly relaxed approach that the courts have taken to assessing the relevance and prejudicial effect of rap music as evidence of a crime. While lyrics that are directly connected to the crime charged could be relevant, in that they make it more likely that the author of the lyrics has some knowledge of (or connection to) the offence, rap was usually not presented in this way. Most often, generic and common-place lyrics about weapons and violence were used to help prove: state of mind (e.g. R v Soloman [2019] EWCA Crim 1356); criminal association and presence at the scene of a crime (e.g. R v Lewis [2014] EWCA Crim 48); propensity for violence or familiarity with firearms (e.g. R v O [2010] EWCA Crim 2985); and motive (e.g. R v Sode [2017] EWCA Crim 705). In Sode, a two-year-old music video in which the appellant was said to make gestures and remarks consistent with support for a gang (created when he was 14-years-old), was used as evidence of gang membership, which then went to the motive for an apparent gang rival attack. Likewise, it has been reported that at a first instance ‘joint enterprise’ trial, a rap video made as part of a community project was used as evidence against the young people who made it, which seems a remarkable approach by the prosecution. Importantly, the same approach is not taken when groups of rugby fans emulate Sir Tom Jones singing about killing Delilah. The research by Dr Owusu-Bempah thus far shows that gang membership cannot be as easily inferred from rap music as the case law suggests. Assuming lyrics or videos are interpreted correctly, references to gangs is common in some rap subgenres, and non-gang affiliated young people participate in gang-themed music for a variety of reasons, including for fun, to appear more authentic, boost popularity, or as a ‘nod to’ their local audience. Also, Amnesty International found that identifying with a gang is ‘porous, fluid and often “for show”’,[3] making it difficult to draw a reliable inference of current affiliation from past indicators of support for a gang.  That the age of the video in Sode was said not to ‘reduce its impact or diminish its relevance’ also demonstrates a lack of scrutiny of factors surrounding the creation of rap which affect relevance and probative value. As for prejudicial effect, several empirical studies in the U.S. have found bias against rap music, rooted in racial stereotypes. For example, a 2018 study by Dunbar and Kubrin gave participants identical lyrics, with some being told it was rock, some country and some rap. The participants were ‘more likely to assume that a rapper is in a gang, has a criminal record, and is involved in criminal activity than are artists from other music genres, and this is based merely on the genre of the lyrics.’[4] These studies reveal the risk of rap music reinforcing biases, as well as the risk of rap being taken too literally. Yet, the racialised nature of rap evidence was not mentioned or addressed in any of the cases analysed, and the judgments tend to only go as far as acknowledging the potential for prejudicial effect, taking the view that admission was not ‘unduly prejudicial’, with little explanation as to why (e.g. R v Awoyemi [2016] EWCA Crim 668). Moreover, while directions to the jury are important (R v Rashid [2019] EWCA Crim 2018), they need not include information that will assist jurors to make sense of rap, such as the broader cultural context, artistic conventions, or the social influences within the rap music genre. This lack of context increases the risk of both improper reasoning and moral prejudice. In other words, discriminatory inferences from musical interests do not help juries to reach safe verdicts. Fortunately, the increased use of rap as evidence has been accompanied by increasing pushback from academics, lawyers and NGOs, arguing for a far more rigorous approach to the admissibility and use of rap evidence. While the CPS is drafting new guidance on the use of drill music as evidence,[5] it is instructive to look to the proposed Bill in New York.[6] Under the proposal, evidence of a defendant’s creative or artistic expression would be inadmissible unless it is proven with clear and convincing evidence that it: is literal rather than figurative or fictional; has a strong factual nexus indicating that it refers to the specific facts of the crime alleged; is relevant to a fact in issue; and has distinct probative value not provided for by other admissible evidence. Importantly, any criteria for admission must not become a tick-box exercise to justify the admission of rap as evidence. Rather, we should strive to understand how approaches to ‘character’ ignore culture and to keep irrelevant, unreliable and/or highly prejudicial evidence out of the courtroom by not using rap lyrics in criminal trials.   [1] Amnesty International, Trapped in the Matrix (London: Amnesty International, 2018); See also P. Williams and B. Clarke, Dangerous Associations: Joint Enterprise, Gangs and Racism (London: Centre for Crime and Justice Studies, 2016). [2] JUSTICE, ‘Tackling Racial Injustice: Children and the Youth Justice System’ (London: JUSTICE, 2021), para. 2.51. [3] Amnesty International, Trapped in the Matrix (2018) p.9. [4] A. Dunbar and C.E. Kubrin, ‘Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments’ (2018) 14(4) Journal of Experimental Criminology 507, 521. [5] https://www.bbc.co.uk/news/uk-england-nottinghamshire-60070345 [6] https://www.nysenate.gov/legislation/bills/2021/s7527   Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

Siobhan Grey QC examines the implications of the recent case of R v Patryk Pachecka and the important role played by the media in overturning a conviction for murder and the significance of scientific and pathological evidence in changing the forensic narrative and leading to the unanimous acquittal of the Defendant. Siobhan Grey QC represented Patryk Pachecka and was instructed by Jason Lartey of Lartey and Co. Click below to read in full. Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

This short article draws on a recent Libertas webinar featuring Dr Oliver Quick and our Felicity Gerry QC which reviewed recent cases involving medical, drug and food related deaths and identified areas of ongoing uncertainty and controversy. Felicity defended the appeal in Rebelo where the Court of Appeal of England and Wales considered manslaughter in the context of a diet pill bought online and the scope of women’s autonomy in eating disorders. She has long experience of appearing in cases of homicide involving complex legal and medical issues. Oliver Quick is Reader in Law and Co-Director of the Centre for Health, Law and Society at the University of Bristol. He has written widely about law and patient safety with particular expertise on gross negligence manslaughter. His research was heavily cited in the Independent Review of Gross Negligence Manslaughter and Culpable Homicide established by the General Medical Council.   Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register

As the ‘Colston Four’ stand trial at Bristol Crown Court this week, Fahrid Chishty assesses a new amendment making its way through Parliament that seeks to tighten the law on criminal damage to monuments and memorials in England and Wales.   Download Article now To stay up to date with insight articles, webinars and chamber news why not subscribe to Libertas Lens (our periodic newsletter) – Click here to register