Jimmy Makenda Mubenga died on 12 October 2010 on a flight to Angola before it had left Heathrow airport. Mr Mubenga died from cardiorespiratory collapse after being restrained by security guards. A specialist prosecutor within the Crown Prosecution Service (CPS) has reviewed the evidence gathered by the Metropolitan Police Service into Mr Mubenga’s tragic death.
Gaon Hart, Senior Crown Advocate within the CPS Special Crime Division said:
“I have considered whether there is sufficient evidence to prosecute three security guards, or their employer, G4S Care and Justice Services UK Limited (G4S) for the tragic death of Jimmy Mubenga. After very careful consideration of all the evidence, and consultation with medical experts and experienced counsel, I have concluded that there is insufficient evidence to bring any charges for Mr Mubenga’s death. These conclusions are reached in accordance with the Code for Crown Prosecutors which states that I cannot bring a prosecution unless there is sufficient evidence for a realistic prospect of conviction.
Gross negligence manslaughter
“To prosecute any of the three security guards for the offence of ‘gross negligence manslaughter’ the law requires that I can prove to a jury that any potential breach of duty of care owed to Mr Mubenga was a ‘more than minimal’ cause of his death. Taking into account the compelling evidence from medical experts, who identified a number of potential causes of death, I have concluded that I would be unable to prove this. The experts’ evidence was that I would need to be able to specifically prove that Mr Mubenga was held in a “severely splinted position” – that is bent over with his head either on or below his knees and his diaphragm restricted - for a sufficient period of time to show that it was the actions of the security guards – and nothing else – which was the more than a minimal cause of Mr Mubenga’s death.
“There are, however, conflicting witness accounts of the manner in which Mr Mubenga was restrained. No witness had an unrestricted or uninterrupted view of what happened, and there is no overall clear picture of what happened in that key window of time to be able to convince a court that Mr Mubenga was held in the “severely splinted” position for a sufficient period of time. Although counsel advised that there was a breach of duty in the way Mr Mubenga was held, it did not amount to being “severely splinted.”
“In light of this, the experts unanimously concluded that given Mr Mubenga’s physiological condition, having been in an agitated state before he died, they could not rule out that his death may have been caused by a combination of factors such as adrenalin, muscle exhaustion or isometric exercise.
“It is not enough to tell a jury what may have caused a person’s death; I have to have sufficient evidence that there is a realistic prospect of proving it to them beyond reasonable doubt, and in these circumstances the evidence did not satisfy that test.
Unlawful act manslaughter
“There is insufficient evidence that the restraining methods used by the security guards were, in themselves, illegal.
Misconduct in public office
“Using the same findings above about the manner in which Mr Mubenga was restrained, the evidence does not show that the security guards wilfully misconducted themselves or wilfully neglected their duty to such a high degree as to be able to prove this offence.
Corporate manslaughter under the common law
“I also considered whether G4S as a company could be prosecuted for corporate manslaughter under the common law. 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 am, therefore, not satisfied that a jury would find any potential failure in the G4S training to be considered criminal.
“However, in light of my conclusions regarding the various training issues, the Director of Public Prosecutions has asked me to write to the UK Border Agency, the National Offender Management Service and G4S to highlight the concerns raised by the experts in this case.
“I appreciate the outcome is not what the family of Mr Mubenga would have hoped for. It is, however, the only decision I can make in accordance with both the evidence and the law. Once again I extend my deepest sympathies to his family. I have offered to meet with them to explain this decision in person.”
Notes to editors
1. The CPS has been liaising with the MPS since April 2011. The CPS received a full file of evidence in January 2012 and advice from expert counsel in July 2012. The CPS has apologised to the family of Mr Mubenga for the time taken and has explained that this was unavoidable in ensuring that we had all the evidence to make a decision.
2. Positional and restraint (and seated restraint) asphyxia are terms that are used to describe circumstances where the position of an individual affects the individual’s ability to breathe adequately to allow air (containing oxygen) into the body and is compromised to such an extent that death ensued due to lack of oxygen.
3. A severely splinted position is where the head is on or below the knees, the diaphragm is restricted and the head is immobile
4. The new statutory offence of corporate manslaughter had not, in 2010, been extended to cover instances of restraint, so the CPS considered the common law offence of gross negligence manslaughter or ‘common law corporate manslaughter’.