News & Insights
Alan Kent KC looks at the admissibility of evidence of gang association.
Applications by the prosecution to adduce evidence of gang affiliation are becoming commonplace.
A person’s affiliation to a particular gang can be important evidence that goes to motive or intention, or can rebut an explanation as to presence. A shooting or stabbing may be committed in revenge for an earlier attack or murder. The Crown may also be able to establish ongoing hostility between gangs as a motive or intention for the killing
Some offences bear the hallmark of gang activity, for example a ‘ride out’ in a stolen vehicle containing multiple occupants who are armed with firearms, machetes, zombie type knives and who wear disguises. There may not be an obvious motive to attack a particular individual but the gang related activity by itself provides a potential motive through a show of strength or defiance or by intimidating rivals.
In many cases therefore, the evidence falls comfortably within the meaning of section 98 CJA 2003, namely that it ‘has to do with the alleged facts of the offence with which a defendant is charged’. It is not strictly necessary to make an application pursuant to s.101(1)(d) CJA 2003, although often prosecutors do so on the basis that the evidence is relevant to an important matter in issue between the defence and the prosecution, namely motive, intention and explanation as to presence.
Whether it is s.98 or s.101, the overriding principle is that the trial judge must be satisfied that the evidence is relevant. It is incumbent upon the trial judge to assess carefully the issue to which gang association evidence is said to relate and to make a qualitative assessment of it. If it passes the qualitative assessment test, it is potentially admissible[i].
In Lewis  EWCA Crim 48, Sir Brian Leveson set out 4 questions that the judge ought to refer to when considering an application pursuant to s101(1)(d) CJA 2003:
(a) Was the evidence relevant to an important matter in issue between a defendant and the prosecution?
(b) Was there proper evidence of the existence and nature of the gang?
(c) Did it show that the defendant was a member of, or was associated with, a gang which had links with firearms or exhibited violence or hostility towards the police?
(d) Would its admission into evidence have such an adverse effect on the fairness of the trial that it ought to be excluded?
However, it must be noted that Sir Brian Leveson was not establishing a rule that applied to every case.
In fact, a specially constituted court considered the appeals of Awoyemi and others  EWCA Crim 668 to give guidance on the admissibility of gang affiliated evidence. The principles to be gleaned from Hallett LJ’s judgment in Awoyemi include:
(a) On the facts of the case before the court, gang affiliation was relevant and admissible. (b) The case bore all the hallmarks of gang related violence.
(c) Gang affiliation provided a link between the defendants and a gang that glorified in violence and the use of firearms, mourned murdered friends and threatened violent retribution for those who crossed them.
(d) The Crown could thereby establish a possible motive [for the shooting], an association with firearms and lethal violence and could negative innocent presence and association. (e) The evidence was prejudicial but inevitably so, and not unduly so.
(f) The evidence went far beyond “simple membership of a gang, the love of rap music, hyperbole or appearance on a video. It indicated the extent to which the individuals concerned had signed up to gang and gun culture.”
Even where direct hostility leading to revenge attacks cannot be proved, the evidence is potentially admissible. Gangs will not necessarily commit their specific feuds to writing or camera to declare their intent to seek revenge in a way that can be proved directly; that does not mean evidence of a gang’s culture, membership and attitude towards violence will be irrelevant. It may provide an important link, or part of an important link, between a defendant and the crime.
Once a judge has concluded that gang membership is admissible, the parties should try to make admissions relating to the relevant material. Often, the defence would wish to avoid the jury hearing each piece of evidence relied upon to prove gang membership and a series of admissions should be made to protect the defendant’s position, as far as possible
Police officers are often called to give expert evidence. They are entitled to rely on their experience, of their own dealings with individuals, upon material obtained by other officers, and from their acquired knowledge of gang signs, names, symbols, territory and hostilities.
Typically, images and videos from mobile phone downloads or social media correlate with gang activity. Drill lyrics written or performed by a defendant can reveal gang affiliation in a display of hostility and aggression to other gangs. The glorification of violence involving the use of knives and guns, of drug dealing and large amounts of cash are common. Specialist officers make use of open source material on social media and the internet to monitor gang tensions in their areas, as gangs tend to use social media and music to threaten others and to show off their successes and their credentials, which in turn leads to increased tensions and violent attacks.
Whether the evidence is ‘do with the alleged facts’ or is admitted through the bad character provisions, it is incumbent on the judge to direct the jury, with suitable warnings not to attach too much weight to it, let alone conclude that a defendant is guilty simply because of it.
Alan Kent KC specialises in cases involving homicide and serious violence. He is regularly instructed by the CPS to prosecute, and by solicitors to defend multi-handed murder cases, many involving alleged gang membership. Alan is ranked in Chambers and Partners and the Legal500 as a leading silk in crime.[i] Useful authorities
Sule  EWCA Crim 1130
Lewis & others  EWCA Crim 2014
Lunkulu & others  EWCA Crim 1350
Myers  1 Cr App R 11
Stewart  EWCA Crim 447
Awoyemi & others  EWCA Crim 668
Sode & others  EWCA Crim 705
Hafedh Rashid  EWCA Crim 2018
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