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I can’t breathe. An inherently distressing phrase, but after the deaths of Eric Garner last summer in New York and Jimmy Mubenga in 2010 at London’s Heathrow airport, this short sentence has come to embody something more sinister. I can’t breathe. Two men on two different continents, both heard speaking these words minutes before they died. Two men in two liberal democracies, both being physically restrained by officers on behalf of the state. In both cases, the officers did not perform the standard first aid resuscitation technique because, they said, they thought the men were still breathing. In both cases, the men who died were unarmed. They were both black, in their forties, and married with children. I can’t breathe. These three words seem to capture the reality of racism and justice in the US and the UK.
Some might say there is less injustice in this country. Eventually, the three G4S detainee custody officers who were restraining 46-year-old Mubenga on board a plane shortly before he died were charged with manslaughter. They underwent a criminal trial at the Old Bailey. They were all acquitted, yes, but not before they had been cross-examined in a court of law. Not so in Garner’s case. Despite autopsy findings that the 43-year-old died from a chokehold and the compression of his chest, no charge was brought against any officer. No wonder thousands of New Yorkers – and hundreds of Londoners – took to the streets and shopping malls to demonstrate. Garner’s death demonstrated that, in the US, his life was of no juridical value.
And yet, despite an inquest and the long and expensive trial at the central criminal court, I believe that Mubenga, too, was cast beyond justice. As an Angolan man, a black African who came here seeking asylum in 1994, his was already a precarious existence: he was only ever granted “exceptional leave to remain” in the country. Then, in 2006, following a brawl in a club, he was found guilty of assault – actual bodily harm – and was sentenced to two years in prison. Despite serving time as punishment for his crime, he also lost the privilege to remain in the UK with his wife and five children, four of whom were born here. On leaving prison, Mubenga became a deportee, a person to be expelled. Along with hundreds of others, he was held, on and off, in the quaintly-named Brook House, an immigration removal centre at Gatwick airport. He had entered a state of statelessness, what the Italian philosopher Giorgio Agamben calls “a state of exception”.
Much has been said about the racist texts found on the mobile telephones of two of the officers who were restraining Mubenga. When all three men were acquitted on 16 December 2014, several organisations – including Inquest, the Institute of Race Relations and the All African Women’s Group – criticised the judge’s decision not to allow as evidence the “grossly offensive and undoubtedly racist” texts, as Mr Justice Spencer himself described them. Here is one of the 76 found on the phone of Terrence Hughes, 53:
I went to my local the other day only to find a black barman. So I said give me a drink nig nog. He said that’s a bit racist, come round here and see how you like it. So we swapped places and he said give me a drink you mother fucking white honkey cunt. I said sorry mate we don’t serve niggers!
The prosecution argued that the texts were evidence of a hostile state of mind towards a black African immigrant such as Mubenga. Hughes’s defence team admitted that the material did constitute “reprehensible behaviour” and “bad character”, but did not prove that their client was racist. They said the texts were so “toxic” they would lead the jury to loathe Hughes, and argued that even if he was found guilty, his motivation was irrelevant.
The team leader for Mubenga’s deportation was Stuart Tribelnig, 39. He had seven racist texts on his phone, all of which he had forwarded to other people. His defence said that only one text was relevant because “it is the only one which refers to black people as opposed to Asians or Muslims”. This is it: “I walked past a blind black guy begging in the street. He said, ‘Any change, mate?’ I said, ‘Nope, you’re still a nigger’.” Tribelnig’s defence described the material as “scandalous” but said that this text provided no insight into their client’s state of mind while he was restraining Mubenga. They argued that “once the slur of racism is raised it is impossible to disprove” and impossible to predict how it would impact upon the emotions of the jury. They said it would be distressing for the jury to consider.
Concluding the matter, the judge was not persuaded that evidence of the texts would help the jury work out “whether the defendants deliberately held Mr Mubenga forward, head down, for a considerable period, and whether the defendants deliberately ignored his repeated protests that he could not breathe”. They were so offensive, he said, they would be “bound to inflame the emotions of any reasonable jury” creating “hostility” towards Hughes and Tribelnig. In short, they would “alter the whole tone and dynamics of the trial”. Moreover, he said he had to consider how the texts might impact upon the third guard, Colin Kaler, 52, the most junior officer, who had no racist texts on his phone. The risk of prejudice, he ruled, was real.
On 12 November 2010, exactly a month after Mubenga’s death, I marched with several hundred people from the Angolan Embassy in London to the Home Office, shouting “Justice for Jimmy!” In the summer of 2013, I took the Piccadilly line to Osterley station, emerging into a Ballardian wonderland of golf clubs, mock-Tudor, the rumble of the Heathrow flight path and Isleworth Crown Court. As often as I could, I attended the eight-week inquest into Mubenga’s death and was there when the jury reached their verdict of unlawful killing. So when news came through of the criminal trial, I was determined to bear witness. On 4 November 2014, I took my place in the public gallery of Court 16 at the Old Bailey. For the next six weeks, I was there almost every day.
I observed many aspects of the trial, the “whole tone and dynamics”, to use the judge’s phrasing. You could not fail to notice, for example, the overwhelming whiteness of the court, as well as its class and gender hierarchy. The judge and the four leading barristers were all white and male. They sounded posh, like me, although they didn’t all attend private school. The court staff I saw were also all white. The security guards were a mixture of black and white men and women. The jury of 12 men and women comprised ten white and two British-Asian people. In the dock, of course, the three white, male, working-class defendants. I was struck by their size: Hughes and Kaler were overweight; Tribelnig, though slimmer, was unusually tall.
Sometimes, things got a bit fuzzy. Although the nature of the prosecution’s case was joint enterprise – that the three officers acted as a team – each defendant had his own representative. There were periods when this appeared to create an imbalance, especially during the closing speeches when about 25 per cent of the time was spent listening to the prosecution and 75 per cent to the defence. Often, the three defence teams would pool their arguments, allowing one representative to make a broader defence helpful to all three guards, not simply their client. This brings us back to the question of the racist texts.
One of the reasons Justice Spencer ruled against the texts being heard was the prejudicial impact that might have on Kaler, the one guard who had no such texts on his phone. When he was called to the witness box, we heard that his wife is of Indian origin. He had adopted his wife’s family name, Kaler, when the couple married. We heard that he has a good relationship with his wife’s cousin, a man from the Punjab, who is living in Italy having entered illegally underneath a bus. And Kaler’s brother-in-law, also of Indian origin, attested to his excellent character. This was all presented as evidence that Kaler is hostile neither to immigrants nor, it was implied, to people with dark skin.
These facts of Kaler’s life are no doubt correct. What is less clear is why his wife’s ethnicity was allowed to be heard as evidence. The judge’s ruling on the texts suggested to me that he believed it was both desirable and possible to conduct what you might call a “racially blind” trial. He wanted the jury to remain focused on the guards’ actions and the central question of whether they held Mubenga forward and down for a considerable period, deliberately ignoring his cries. He didn’t want their emotions inflamed with the “slur of racism”. Yet evidence of the ethnic origins of Kaler’s spouse surely risked taking the jurors’ emotions in the opposite direction. By planting the idea that at least one of the guards had a progressive approach to difference, the defence may have diluted the jurors’ critical objectivity towards all three men in “the team”.
At the end of his ruling on the racist texts, Mr Justice Spencer said: “I wish to make it clear ... that in giving their evidence Mr Hughes and Mr Tribelnig will need to be very careful not to give the impression to the jury that they do not hold any racist views. That would run the risk of creating a false impression which might in itself attract the operation of the bad character provisions ... and let in the very evidence that I have excluded.” In fact, it seemed to me that such a false impression was created. Instead of Kaler being prejudiced by his colleagues’ foul texts and bad character, Hughes and Tribelnig benefited from his good character, his marriage to a woman of Asian heritage and his relationship to her cousin. None of this “let in” evidence of the texts. Why on earth not?
There are, of course, explicit and implicit expressions of racism. The texts are obviously explicitly racist. The defence did not deny this: “scandalous” and “toxic” were words they used to describe the content on their clients’ telephones. But what of the implicit expressions of racism, those more subtle forms of discrimination that help to maintain racialised hierarchies of power beyond (as well as within) a courtroom? I’m thinking here of what the US philosopher Judith Butler calls the “war zones of the mind”: the way we look at each other, the way we feel about each other, and the way in which black people, especially black men, are perceived.
One of the most well-known lines in Frantz Fanon’s seminal Black Skin, White Masks (1952) is the moment he recalls a French child shouting, “Mama, see the Negro! I’m frightened!” The Martinican writer, a black man who fought for the French colonial army, risking his life for the coloniser, is “completely dislocated”. Here he is, in a world in which blacks are segregated legally in the United States and live under apartheid in South Africa, in which the violence of European colonialism continues against a grotesque historical backdrop of transatlantic slave-trading, yet the white child is afraid of his blackness! It is winter. Fanon is on board a train. No one will come near him.
During the trial one of the guards, Hughes, described Mubenga as “an extremely strong man” who was “very violent”. Tribelnig said, “We had an extremely violent person in front of us”. He described the first struggle between Mubenga and the guards as “the initial explosion”. He had taken Mubenga’s mobile phone from him because he was afraid he’d “use it as a missile”. Under cross-examination, Tribelnig said Mubenga was “a very strong man, a very strong man”. Even after they had handcuffed him behind his back and sat him down with the seat-belt fastened, Tribelnig said Mubenga “was thrashing about”, sometimes “particularly violent thrashing”. In a statement to police, Tribelnig had described Mubenga as “a big fella ... a big man”. In fact, at 1.76 metres, he was below the average height of a British male. He weighed 80.9kg. We were not told the weight of the guards, only their height. Kaler is 1.78 metres tall, Hughes is 1.8 metres, and Tribelnig is 1.88 metres. They are all taller than Mubenga was.
You may recall reports from the US about Michael Brown, the black man who was shot dead in August 2014 by a white police officer, Darren Wilson. Echoing Tribelnig’s memory of Mubenga, Wilson’s idea of Brown’s body was that it was much bigger than his own. Using memorable hyperbole, Wilson said, “I felt like a five-year-old holding onto Hulk Hogan ... That’s just how big he felt and how small I felt.” In fact, Wilson and Brown were the same height, 1.93 metres. Returning to Mubenga, his strength was a critical factor for the defence. Contrary to the prosecution’s case – that the guards held Mubenga forward and down, deliberately ignoring his protests – the guards said that Mubenga held himself down, despite their attempts to pull him up. The idea that he was able to resist their combined strength, while losing breath and eventually dying, was something I have struggled to comprehend. It is true that the Home Office forensic pathologist, Dr Ashley Fegan-Earl, described Mubenga as “very muscular” with “well-developed upper arms”. We were never told how muscular the guards were, however: we could only imagine the firmness of the flesh that lay beneath their suits.
During the 40-odd minutes prior to Mubenga’s cardio-respiratory collapse, over 20 people on the plane heard him say, “I can’t breathe.” Instead of calling for medical help or trying to speak to him, some passengers felt they had to protect themselves. Tribelnig, the senior officer, described a woman “physically ripping” her child from its seat in her rush to get away. A male passenger heard “moaning and stressful noises”, while another asked an air-steward: “Is anyone going to stop this noise? Is he going to shut up?” The steward apologised: “Sorry. We’ve got a deportee on board.” Listening to these testimonies in court, it seemed to me that Mubenga had been rendered less than human twice over – both as a black man and as a deportee. Ironically, when boarding was delayed, the steward who made the announcement referred to Mubenga not as “the deportee” but as “the passenger”. This wasn’t out of respect for his privacy. It was, the steward explained, “so as not to scare them”. Passengers, we learned, are afraid of deportees.
When Mubenga fell silent, the guards said they thought he might have been faking. An air-steward recalled being told, “We think he is faking a heart attack.” Earlier, she listened to Mubenga shouting, “They’re killing me!” But, she said, “They clearly were not killing him.” The so-called “culture of faking” came up repeatedly in court. Apparently many deportees fake pain or distress to try to interrupt their deportation. Two of the defence barristers said that Mubenga had “cried wolf”. In his closing speech, Tribelnig’s defence argued that if Mubenga had not “cried wolf” at the start of the struggle, he might still be alive today. Yet in the tale of the boy who cried wolf, it’s still the wolf that kills the boy.
People have equated criminals with wolves for hundreds of years. Belief in werewolves may well stem from the practice of throwing criminals out of towns into surrounding forests, where they are thought to become both man and wolf, neither one nor the other. Poena cullei, an ancient Roman form of capital punishment, involved, among other things, covering the person’s head in a wolf-skin. This indicated that the individual was not fully human and had been cast beyond human jurisdiction and could therefore be lawfully killed. Borrowing from Agamben again, this is the figure of the sacred man: “a life that may be killed by anyone – an object of a violence that exceeds the sphere both of law and of sacrifice”.
In the case of Mubenga, his death presents a paradox. First, an inquest jury concluded that he was held down by one or more of the guards. The following year, an Old Bailey jury reached a not-guilty verdict for all three guards, leaving open the possibility that Mubenga held himself down. But according to Dr Fegan-Earl, the forensic pathologist, that is improbable because our “inner self-preserving mechanisms” mean the body would instinctively try to escape that position. So should we accept that Jimmy Mubenga’s death is an unaccountable mystery? Or should we see it as evidence of the possibility that the deportee in Britain today, like the unarmed black male citizen of the United States, is so deprived of rights that acts committed against them are no longer crimes?
