NEWS
16/04/2021 07:50 BST | Updated 16/04/2021 15:45 BST

Belly Mujinga's Lawyer On The Aspects Of The Case That 'Don't Add Up'

Family of railway worker who died of Covid have complained to the police watchdog about investigation that failed to lead to arrest.

PA
Belly Mujinga

Lawyers for Belly Mujinga, who died a year ago after contracting Covid-19, have raised questions about why a 57-year-old man escaped arrest despite allegedly spitting at the railway worker.

Lawrence Davies, a lawyer for Mujinga’s family, told HuffPost UK a complaint had been made to the police watchdog over the British Transport Police’s (BTP) handling of the investigation as aspects of the case “don’t add up”.

Concern has been raised over the weight placed on the alleged assailant’s negative test for Covid-19 at such an early stage of the pandemic, the CCTV footage, and the refusal to disclose his name to the family – who wish to consider suing him for harassment and assault.

The railway worker, 47, died on April 5 last year – two weeks after the March 21 incident at London Victoria station.

According to Davies, BTP gave the man a choice between being arrested or attending an interview under caution. After opting to be interviewed, which finally took place in May, he allegedly explained his actions by saying he had an involuntary cough and was in a hurry when he spoke to Mujinga and her colleague.

He also said he didn’t have Covid because he had received a negative antibody test four days after the alleged assault.

But Davies, who has seen CCTV footage of the incident, counters the explanation.

Davies says the alleged assailant twice approached Mujinga and the colleague she was with, covering them in spittle while talking.

Between the two outbursts, the alleged attacker moved to a different area of the station and waited to be served at a ticket window. He appeared to be angered by the woman who served him, too. Given all this, Davies disputes the suggestion the man was in any particular hurry.

He also raises the significance of the man having had access to a Covid-19 antibody test – according to police, the test was taken as “part of [the man’s] occupation” – so early in the pandemic.

Davies told HuffPost UK: “For his employer to have access to an antibody testing regime at that time – when most employers didn’t – suggests he works for an organisation that is very well connected. So you’re looking at the health service, police, military, government.”

He also points to the high proportion of false negative tests that marked the early days of the outbreak. On April 6, professor John Newton, Public Health England’s head of testing, admitted that antibody tests ordered by the government up to that point were not good enough to use, and only people who had been severely ill would have tested positive.

Davies asks why BTP assumed the test was accurate and why the assailant wasn’t tested again in May when he was interviewed at a London police station.

The claim the cough was involuntary is also disputed by Davies. Both Belly and her colleague step back on the two occasions the alleged assailant is close to them. “The assault is quite clear from the CCTV,” he told HuffPost UK. “We think the story doesn’t add up.”

The footage, says Davies, also suggests a “racial intent”. He adds: “It doesn’t add up that he wasn’t charged. It’s hard to believe that if he had been a hulking Black guy – big framed, towering over two white female staff, put the fear of god into them, and assaulted them twice – [...] it’s hard to believe the BTP would not have done him for assault.”

Davies is also alarmed that Network Rail deleted the CCTV footage because Govia Thameslink Railway (GTR), Mujinga’s employer, had not reported the incident to the police within 30 days.The “grainy” footage Davies has seen emerged following a request GTR had made on April 8 to Network Rail, but it did not say an alleged assault had taken place. He questions whether there was original footage from better angles, and what BTP asked for.

BTP said in May there was not enough evidence that a crime had taken place and closed the case. In August, the Crown Prosecution Service’s independent review had found “no further reliable evidence” to change the decision.

The CPS pointed out that, aside from the negative test, there was no medical evidence to link the suspect with Mujinga’s illness. It said DNA analysis of Mujinga’s clothing was inconclusive as to whether she had been coughed or spat on.

Suzanne Llewellyn, deputy chief Crown prosecutor, said at the time: “We considered whether charges could be brought in relation to homicide, assault or public order offences.

“As part of this review, we studied enhanced CCTV, forensic materials and witness statements.

“CCTV and witness evidence was insufficiently clear and consistent to substantiate allegations of deliberate coughing or spitting, meaning no charges can be brought for assault or public order offences.

“Medical tests confirmed the suspect had not been infected with coronavirus, which together with the lack of other evidence rules out any charges in relation to homicide.

“Therefore, after careful consideration and with all lines of enquiry explored, we have advised BTP no further reliable evidence has become available to change their original decision in this case.”

But there are other concerns, too, about the conditions Mujinga was working under and how she was treated by her employer. Among them is the fact Mujinga had already made a racism complaint about the supervisor who she alleged sent her to work without a mask weeks before she died, Davies says.

In February 2020, Mujinga had complained about the supervisor – a letter to her employer has been seen by HuffPost UK – asking why she was suspended for weeks over a simple mistake that others had made and escaped punishment for.

The family is also alarmed that Mujinga – who suffered from a respiratory ailment – was taken off the rota working behind a ticket counter and was instead told to work on the concourse where she had to engage directly with the public.

GTR could not confirm whether the race complaint had been upheld, or whether any action had been taken subsequently. HuffPost UK has seen no evidence that the supervisor acted wrongly in relation to her shift pattern or the spitting incident.

Mujinga suffered from sarcoidosis, which affected her breathing and meant she had regular medical check-ups and some restrictions on her operational duty.

On March 21, the rota shows Belly was supposed to be working at a ticket window, and not outside, and video she took days before her death shows how scared she was.

Davies says: “There was no objective need for them to be outside. The only time they are supposed to leave the ticket office is if there’s a super long queue, and it’s felt getting people outside can tackle the queue. But there’s no queue outside. In fact, there’s more staff outside than there are people.”

It was already in the public domain that GTR had not issued masks to its staff at the time of the attack – which was before mask-wearing was advised by the government.

But Davies alleges GTR had gone further and had actually forbidden its staff from wearing masks outside even if they wanted to, which was “an unusual step”.

He told HuffPost UK: “Management generally told staff they couldn’t wear masks. They didn’t provide them and told them they couldn’t wear them. According to the union, one person was disciplined for wearing a mask.

“Belly needed to because she had a respiratory condition, and she needed not to be working outside in the vicinity of the public. But if she was outside the very least she could have had was a mask.

“Apparently, she did have a mask – she was using a scarf – but people who were trying to wear masks were having them taken off them by management.” 

He says there “seems to be a general lack of care towards staff safety”.

As a result of the litany of concerns about the investigation, Mujinga’s family has complained to the Independent Office for Police Conduct, which investigates the police. They are also considering a civil claim against GTR. A coroner is still to decide on whether to hold an inquest which in turn will inform whether the government launches a public inquiry.

HuffPost UK put the “race complaint” allegation to GTR, and asked whether any action was taken against this supervisor. A spokesperson said it would not comment on specific allegations, adding: “GTR does not tolerate racism and takes any allegation of racism extremely seriously.” 

Of the same supervisor sending Mujinga out to work on the concourse on the day the alleged assault took place, GTR referred HuffPost UK to an investigation report it published last autumn in which it stated that all office colleagues at the station were obliged to work in the ticket office and on the station concourse as part of their normal, daily duties. 

The report also claims Mujinga’s condition was not included in government guidance classifying an individual as vulnerable, though this changed in April after she had died. It has been frequently reported by Mujinga’s union, the Transport Salaried Staffs Association (TSSA), that Mujinga pleaded with her bosses after the attack not to be sent outside, asking instead to work from inside the ticket office. This was refused, it is said. She was only eventually authorised to shield after her doctor telephoned her employers after the incident on March.

Of not issuing masks to its staff at the time of the attack, the GTR report states: “At the time of the alleged incident, which took place prior to the wider lockdown, there was no guidance or advice in place suggesting face coverings or masks should be worn.

“As the pandemic developed, advice evolved and the travelling public was advised to wear face coverings. As soon as the official advice changed in May, we provided colleagues with face coverings. We currently offer colleagues a choice of disposable surgical masks, reusable cloth masks and face visors.”

On refusing to disclose the suspect’s name to Mujinga’s family or lawyer, BTP has said it has to consider the “safety and security” of the person involved, as well as the Data Protection Act which restricts the sharing of personal data gathered as part of a criminal investigation. 

A BTP spokesperson said: “Consequently and as per national policing guidelines, we would only release someone’s name in the public domain if and when criminal charges have been brought against them.

“In this case following consideration of the evidence, interview under caution and subsequent review by the Crown Prosecution Service, no further action was taken against them.”

The force said it is “not within the remit” of the police to assist the public in its pursuit of “civil remedies”.

Members of Mujinga’s family, including her husband Lusamba, attended a vigil outside Victoria station last week.

Sonali Bhattacharyya, a volunteer with the Justice for Belly campaign group, said campaigners were calling for an inquest into her death and a public inquiry to determine if GTR was culpable. There is no suggestion that Mujinga’s supervisor is culpable for any specific wrongdoing.

She said: “We’re here today on the first anniversary of Belly Mujinga’s death, united in anger and grief.

“A year on, and her family still have no answers. They still wait for justice.”