Lord Ramsbottom , G4S and The Church’s Liability for Perverted Priests
Lord Ramsbotham, a former chief inspector of prisons has condemned the decision not to bring charges against three G4S guards over the death of a detainee as “perverse”, insisting a senior coroner should now oversee an inquest.
Speaking during a House of Lords debate on Thursday the 19th July, the crossbencher Lord Ramsbotham, called on ministers to ensure public funds would be available for an inquest into the death of Jimmy Mubenga, who died after being restrained by the guards on a British Airways flight. Ramsbotham’s comments are particularly relevant as he is also chairing an independent inquiry into the use of restraint.
On Tuesday, the Crown Prosecution Service announced it would not bring any charges against the guards, in part, it said, because it could not rule out that the death was caused by “a combination of factors such as adrenaline, muscle exhaustion or isometric exercise”.
Ramsbotham said: “I have to say that in the face of all the evidence that we have gathered during our inquiry, quite apart from all the other evidence that was available, I find that CPS decision, at kindest, perverse”.
“Passengers reported hearing Mr Mubenga cry out that he could not breathe and that the guards were killing him. There had been Home Office warnings to G4S in 2006 about the dangers of using [restraint techniques that might lead to] positional asphyxia.”
The peer said there were parallels to be drawn with another case in which G4S staff restrained a person in their custody who died.
“There had been stringent criticisms by the coroner in the case of Gareth Myatt, a 15-year-old who died in Rainsbrook secure training centre following the use of similar procedures for restraint by G4S guards,” he said. “He, too, had called out that he could not breathe before he died.”
Ramsbotham added: “As an inquest is the only public forum in which this death can now be scrutinised, I ask the minister to confirm that this will be conducted as soon as possible by an experienced coroner, and that public funding will be made available to ensure full support for Mubenga’s family.”
Frances Webber (Vice-chair, Institute of Race Relations and former Barrister)
Frances Webber (Vice-chair, Institute of Race Relations and former barrister) stated in the Guardian Newspaper on the 18th July that ‘the prosecutor says that “given Mubenga’s physiological condition” he cannot rule out that factors such as “adrenaline, muscle exhaustion or isometric exercise” might have helped cause his death because he was in an “agitated state” before he died. The general application of this extraordinary reasoning would mean that no murderer whose victim struggled could be charged, because of the adrenaline, muscle exhaustion and isometric exercise involved in resisting attack. And even if (as is implied) Mubenga was somehow uniquely vulnerable because of a pre-existing condition, every rookie lawyer learns the “eggshell skull” doctrine, which states that an assailant bears legal responsibility for a death even if his victim has a pre-existing condition making for extra vulnerability.’
Church Liable for the Negligent Acts of a Priest
In a recent landmark decision (JEG v The Trustees of the Portsmouth Roman Catholic Diocesan  EWCA Civ 938) the Court of Appeal has now confirmed that the church can be held liable for the negligent acts of a priest it has appointed. Permission to appeal to the Supreme Court has been refused.
This appeal was another preliminary stage in the main action between the claimant’s action for damages following the alleged sexual abuse and assault by a parish priest (now deceased), and the trustees of the diocesan where he served. The Court of Appeal has now confirmed that the defendants can be held to account, even though there was no formal employment relationship between Father Baldwin and the Diocesan.
The claimant argued that the defendants should be held liable for the wrongdoing of the priest because at the time they “operated and/or managed and/or were responsible for” the church where he served. The defendants were said to have entrusted the safe keeping and care of the claimant to Father Baldwin. It was also alleged that the sexual abuse and assaults perpetrated by the priest were committed in the course of or were closely connected with his employment and therefore that the defendants were vicariously liable for the injury and damage which the claimant suffered.
The trustees argued that they were not in control in the sense that neither they nor the incumbent bishop had any power to remove Father Baldwin from the priesthood or his office other than in accordance with the process set out in the Code of Canon Law (which requires proof of a grave cause under canon law). So they denied that Father Baldwin was in their service: he was at all times following his vocation and calling as a priest.
In court the issue of vicarious liability was set out in two stages, the first being the relationship between the employer and the employee and the second being whether the act was within the scope of the employment. In all the other cases involving claims of sexual abuse by priests the church has only challenged its responsibility for the actions of its priests on the basis that the acts were outside the scope of the “employment” of the priest.
This case is one of the first in which the first stage of vicarious liability has been challenged, namely whether the relationship between the priest and the church is such that the principle of vicarious liability may attach if the tortious acts of the priest were within the scope of the relationship. The judge in this case accepted that a priest was not an employee, but that vicarious liability could be founded on a relationship other than employment.
He therefore concluded that the relationship was akin to employment because of the close connection between the tortfeasor and the person against whom liability was sought.
Are G4S Liable for the Acts of the Staff?
In the G4S case the staff said that they were using the system that had bee approved for use by Government, yet it was not entirely fit for purpose.
In February 2011 four G4S whistleblowers submitted evidence to the home affairs select committee stating the company had been warned repeatedly by its own staff that potentially lethal force was being used during removals.
They also said that G4S managers were repeatedly being told that refused asylum seekers who became disruptive on flights were being “forced into submission” with their heads placed between their legs – and lets face it, anyone who knows anything about physical restraint and positional asphyxia must know that such a position is dangerous. It was even highlighted in a BBC News report on the 27th July 2011 which you can read here >>> http://www.bbc.co.uk/news/uk-14301245
So, for the meanwhile it looks like the Jimmy Mubenga case is not over for G4S, and in light of the third Corporate Manslaughter Conviction and the recent Court of Appeal landmark decision (JEG v The Trustees of the Portsmouth Roman Catholic Diocesan  EWCA Civ 938)l there could be more to follow.
Surely it’s easier just to the right thing in the first place?