Last year three former G4S guards (Detention and Custody Officers) were acquitted of the manslaughter of Jimmy Mubenga, killed while being deported by plane from the UK in October 2010. Several passengers on his flight reported having heard him say ‘I can’t breathe’ shortly before he died while being restrained.
The violence entailed in deportation stretches far beyond the actions of the security guards escorting the deportee. Mubenga, having been torn away from his wife and five children, was being removed from a country that had been his home for 16 years. He had served his two-year sentence for an assault, and yet the Home Office saw fit to punish him a second time, a fate which frequently befalls foreign criminals, who can be subjected to an automatic deportation order after serving a 12-month sentence.
For sentences of less than 12 months, the Home Office may still deport if it is considered to be ‘in the public interest’. Arguably, deportation can never be in the public interest, even in the case of the most serious foreign criminals. Crime is in part a product of the society in which it takes place. Deportation serves to obscure this fact. It is in the public interest to take responsibility for the causes of crime as well as the rehabilitation of criminals. In Mubenga’s case, his deportation order ultimately led to his death.
After initially declining to bring charges against the guards involved, the Crown Prosecution Service reviewed its decision after an inquest’s finding of unlawful killing. The inquest jury’s verdict followed years of campaigning for justice by Mubenga’s widow, Adrienne Makenda Kambana, and media investigations into the circumstances surrounding his death.
Crucial evidence of racist texts and banned restraint techniques barred by judge
However, when it came to the manslaughter trial of the three former G4S guards involved, the judge refused to allow crucial evidence to be heard by the jury. This included evidence relating to the continued use of a banned restraint technique which obstructed breathing, that of ‘Carpet Karaoke’. According to the coroner’s report, this is a ‘technique adopted for controlling disruptive deportees in an aircraft seat. It comprised pushing a deportee’s head downwards so that any noise that he or she made would be projected towards the floor (“singing to the carpet”) and not through the plane upsetting the passengers or causing the captain to require disembarkation (so aborting the removal)’ (Coroner’s report, para.67).
Also withheld from the jury was the ‘unlawful killing’ verdict of the inquest jury, the findings and recommendations of the coroner’s report and, critically, evidence relating to racist text messages found on the mobile phones of two of the guards who restrained Mubenga. Despite the judge having the discretion to allow the admission of evidence relating to ‘reprehensible conduct’ by the defendants if it appeared to be important in helping the jury to understand the evidence as a whole or to counter defence claims of good character, the judge insisted that allowing the evidence relating to the racist messages to be heard would be prejudicial to the defendants and prevent a fair trial.
Not “rotten apples” but “pervasive racism”
The position of the trial judge was contrary to that adopted by the coroner, Karon Monaghan QC, at the inquest, who had attached a high degree of significance to the evidence relating to the racist text messages, arguing that they ‘were not evidence of a couple of “rotten apples” but rather seemed to evidence a more pervasive racism within G4S’ (para. 43). She went on to note that the text messages, along with other evidence of racist material shared and commented on by G4S guards on social media, point to ‘what appears likely to be a casual widespread racism’ (para. 44). She concluded: ‘It seems unlikely that endemic racism would not impact at all on service provision’ (para. 46). The presence of widespread racism within G4S created the ‘the possibility that such racism might find reflection in race-based antipathy towards detainees and deportees and that in turn might manifest itself in inappropriate treatment of them … This may, self-evidently, result in a lack of empathy and respect for their dignity and humanity potentially putting their safety at risk, especially if force is used against them’ (para. 46). and that this is especially important ‘when the functions being performed by those providing detention and escorting services are necessarily targeted at groups defined by nationality, national origins and therefore “race”’ (para. 48).
As Frances Webber has observed, the trial judge’s decision to exclude this evidence ‘prevented the jury from contextualising or properly weighing the evidence the guards gave of their respectful, professional treatment of Mubenga. The exclusion of relevant evidence meant that the case actually lacked part of its context, and the defence suggestions that Mubenga was just too big, strong and vociferous, and brought about his own demise, won the day.’
There have been 500 BME deaths since 1991 – and not one conviction
Mubenga’s death is one of more than 500 since 1991 in which a black or minority ethnic person has died as a result of interaction with police or prison or immigration officers or their private proxies. There has not been a single conviction. The exclusion of evidence that the guards who restrained Jimmy Mubenga had racist text messages on their phones and had forwarded some of these on to others raises the question of whether the legal system is capable of delivering justice for victims from racialised minorities. For a judge to exclude evidence that the guards who restrained Mubenga, an Angolan man, held racist views about black African men suggests at best ignorance of the pervasiveness of racism and structural violence faced by black and minority ethnic people in Britain today and, at worst, that the racism said to be ‘endemic’ in G4S by the coroner has also found a home in the judiciary. A consequence of the courts’ denial of the relevance of racism is the perpetuation of its violent consequences for racialised minorities along with their deepening mistrust of the legal system and doubts about its capacity to deliver justice.
Since Mubenga’s death, the government has been called on to cease contracting out deportation to private security firms in the interests of accountability in cases like Jimmy’s. While this would be a step forward in terms of accountability, in view of the statistics on deaths in police custody, along with the CPS’s record of not prosecuting officers involved, we should be cautious about expecting better treatment of deportees by state officials or higher levels of accountability where they act unlawfully. There have also been calls for a review of ‘restraint techniques’ used in the course of deportation. While this is crucial, the fact remains that deportation of migrants against their will is always a violent act.
The political costs of recognising this are of course monumental, considering the political industry of scapegoating migrants for votes. This, together with the politicisation of immigration policy, creates a breeding ground for the sort of racial hatred of the guards who restrained Jimmy Mubenga.
Nadine El-Enany is a lecturer of law at Birkbeck College and part of Defend the Right to Protest’s organizing committee
This article first appeared in Justice, Resistance and Solidarity: Race and Policing in England and Wales produced by the Runnymede Trust