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Why the Jimmy Mubenga case won't be a watershed moment for government outsourcing

The unlawful killing of Angolan deportee Jimmy Mubenga by three G4S security guards is an extremely complicated case. While it's easy to point the finger at the "evil" outsourcing company, it's the interaction between the company and the Government that c

Jimmy Mubenga.
Jimmy Mubenga.

After an inquest jury at Isleworth Crown Court recorded a majority verdict of unlawful killing in relation to the death of Angolan deportee Jimmy Mubenga, a G4S statement absolved the company of blame:

Our employees were also trained, screened and vetted to the standards defined by strict Home Office guidelines. We believe that at all times we acted appropriately and in full compliance with the terms of our contract with UKBA and it should be noted that the Crown Prosecution Service found no basis on which to bring criminal charges against G4S in this case. It would not be appropriate for us to comment on behalf of our former employees who were separately represented throughout these proceedings.

The strong implication was that this was solely about the behaviour of rogue members of staff. But that wasn’t the case. As Samira Shackle has pointed out:

While Mubenga’s death was an extreme example, abuses during deportation are commonplace. Medical Justice published a report in 2008 that outlined nearly 300 allegations of such assaults [...] In this context, it was merely a matter of time before somebody died.

What’s most interesting about this report is the reaction it elicited from the Labour government at the time. As Clare Sambrook of openDemocracy tells me:

The chilling truth is that government is committed to outsourcing no matter what. The Home Office response was to attack the doctors and lawyers who had brought the abuses to light.

No - the politicians involved cannot, for a second, pretend this story wasn’t coming. They were told again and again. The final details were this week laid out in furious language by Emma Norton, legal officer for Liberty:

Racist jokes on their mobiles. A ludicrous account that Jimmy Mubenga somehow forced his own head between his knees, causing his own asphyxia. Unforgivable indifference to the dying cries of a man who, according to one witness, called for help around 50 times as he slowly suffocated. These are the actions of the private security guards entrusted by the Home Office to ensure the safe removal of Mr Mubenga from the UK. What utter contempt for human dignity and life...The Home Office is also culpable. The department has long used a restraint policy designed for inmates in prisons against people being removed by aircraft. The Home Office has known for years that the policy is unsafe.

And as she pointed out, Liberty had tried to look at the policy, but had been refused permission by the Home Office, which blithely assured them:

If the techniques were made public, detainees might learn them and be able to counter them. So we’ve been unable to show the policy to our restraint expert to see how safe it is. Don’t worry, says the Home Office – our own experts have taken a look: they assure us that, while the techniques aren’t designed for aircraft, ‘their use (is) not fundamentally dangerous and could be safe so long as staff had adequate awareness of potential issues such as positional asphyxia’.

The system was secretive and dysfunctional. In the light of the case, Amnesty International UK’s Arms, Security and Policing Director Oliver Sprague released a statement:

Several former G4S staff told us about how they’d raised concerns about the use of dangerous restraints and the life-threatening risks they posed, but across a 20-year period nothing changed. We heard that poorly-trained private contractors were using banned restraint holds that dangerously impaired breathing, and so-called ‘Carpet Karaoke’ was being used - where security staff would force the person’s face into a carpet with such force that they were only able to scream ‘like a bad karaoke singer'.

The details that emerged from the Mubenga case were appalling. Let’s not pretend they came to light because of a transparent system. The Home Office initially said Mubenga had been "taken ill" while on the flight on 12 October 2010. G4S said he’d "became unwell", forcing the plane to return to Heathrow. It took a Guardian investigation, which tracked down witnesses on the plane, to begin the long quest for the truth.

But a case like this is also extremely complicated. That’s why, despite all of this, no one was prosecuted. Here you can read Gaon Hart, the Senior Crown Advocate within the CPS Special Crime Division’s statement on the reasons he was unable to prosecute - not for gross negligence or unlawful act manslaughter, or for misconduct in public office (because he couldn’t prove exactly why Mubenga died).

And what’s most interesting about this is how the intersection between the state and private business has created a buffer for those you might expect to be culpable for corporate manslaughter under common law.

To quote Hart:

The law would require me to prove that a sufficiently senior person within G4S who could be said to ‘speak for’ the company, failed to act as a reasonable person should do in their position and that the failure was so bad that it should be considered criminal.

The experts suggested there were shortcomings in the training given to the security guards. They said that the training on how positional asphyxia might occur and the warning signs for identifying positional asphyxia were both flawed. In addition, the experts criticised the lack of specific training by G4S for use in restraint on board an airplane. However, G4S followed training recommended by the UK Border Agency and the National Offenders Management Service, which had been found to be “safe and fit for purpose” after official review [...] I appreciate the outcome is not what the family of Mr Mubenga would have hoped for.

That’s putting it mildly. As Makenda Adrienne Kambana, Jimmy Mubenga's wife, told the Guardian:

He was crying for help before he was killed. We can't understand why the officers and G4S are not answerable to the law as we or any other member of the public would be.

And it’s worth noting a couple of details about the case in this regard. As I pointed out earlier this month, it’s very easy to point the finger at the evil outsourcing company, but the interaction between the company and the Government that contracts them is in fact the most important aspect of this case, as it is for many others. In particular, the Coroner’s report has highlighted a system of “zero hours” payment that rewards guards if they can keep a detainee quiet until the aircraft takes off; and lack of "scenario specific" training for those tasked with trying to restrain people on aircrafts.

To quote her on payment:

It seems to me that incentivising the completion of removals by monetary award necessarily carries with it the risk that removals will go ahead in circumstances where otherwise they might be aborted. Having a financial interest in getting the job done does give rise to real concerns that inappropriate methods might be used to that end.

And this issue of accreditation:

The evidence points not to a mere lack of robustness either in the procedures of G4S or the Home Office but to an agreement to dispense with the need for accreditation, apparently to address delays within the UK Border Agency in processing applications for accreditation.

My experience yesterday in asking questions about what’s being done on these issues encapsulates one of the problems with outsourcing. G4S advise me to direct these questions to the Home Office or to Tascor (now part of Capita), who now run the overseas escorting contract on their behalf. When I do, I am given a generic statement: “We have received the report and will respond to its findings in due course” and am told to direct questions on operational procedure to. . . G4S.

And this kind of grey area over accountability runs deep within all the work I’ve done on outsourcing and its social impact - as do the questions over financial incentives and training. They’re relevant to the way, say, we contract out our children’s services. Consider, for instance, one of the little details that slipped out during the Rochdale abuse scandal which I wrote about earlier this year:

One girl at the centre of the case was moved from Essex and placed in a one-to-one home, where she was the only resident. She never woke up with the same staff member in the home who had been there when she went to sleep.

That’s why this kind of story has big implications for the whole business of private sector work for the state. As Sambrook tells me:

Jimmy Mubenga was not the first person to die in the care of G4S. There was Gareth Myatt, a boy of mixed-race fatally restrained by G4S guards, one of whom is now in charge of health and safety at G4S children’s homes. There was the Aboriginal elder Mr Ward, cooked to death in the back of a G4S prison van. How many more? We don’t know. G4S operates in many countries where such matters don’t come to light.

When I speak to Frances Crook of the Howard League for Penal Reform, she echoes Sambrook’s views:

My concern is that the G4S catalogue of management failures and endemic racism revealed by the coroner is probably prevalent in its child jails, but no one has ever asked. Two young boys died because of being restrained in these secretive profit driven jails but because there are no endearing photos splashed across the media there is little public concern. I don’t think G4S is a fit company to care for children or vulnerable adults and all its government contracts should be revoked forthwith.

In response, a G4S spokesperson says:

G4S has a proven track record of working with vulnerable young people, not only within the custodial environment, though delivering education and training within our three Secure Training Centres and our Young Offender’s Institution in Wales, but also managing children’s homes for six years.

All the establishments we run are regularly inspected, and consistently deliver excellent outcomes for the young people in our care. The Chief Executive Officer of the Youth Justice Board (YJB) and the Head of the Youth Justice Board Cymru reported that their visit to the Young Persons’ Unit at HMP & YOI Parc had been “one of the best” in their experience.  The latest inspection by Ofsted and HMIP at Medway Secure Training Centre, highlighted the “very positive relationships between staff and young people”, resulting in an overall rating of ‘good’. Local Authorities consistently recognise G4S as a trusted provider with a strong track record.

And what of the alleged culture of racism revealed by the coroner? The G4S spokesperson says:

Racism has no place in G4S and when allegations of racism are made against our employees, we take them extremely seriously and always take disciplinary action where appropriate.

That’s as may be, but it’s hard to disagree with Norton’s claim:

It is clear that neither UKBA nor the private security companies have taken steps to ensure that racists are not employed to perform this terribly sensitive and difficult job.

I’d love to think this is a watershed moment. I hope this is the time when the public begins to ask serious questions about an industry that has an annual turnover of £82bn, and that has an impact on the entire economy, in terms of wage levels, benefit demands and spending power. But I suspect this is wishful thinking. The simple truth is that as long as services are provided, we don’t care by whom, or at what ethical and financial cost. If the Olympics didn’t wake us up, nothing will. Our policymakers must take the lead.