My Afghan friend Mir saw his cousin Gulabuddin arrested on a rape charge in London. This is what happened nextby James Fergusson / May 20, 2004 / Leave a comment
The story so far
In the August/September 2001 issue of Prospect, James Fergusson described how, in 1998, he had helped his friend Mir (then given the alternative pseudonym Wahidallah) to escape Afghanistan and claim asylum in Britain. Mir had worked as a translator for Fergusson in Afghanistan but, as the civil war intensified, found his life under threat in Mazar-i-Sharif and was forced to flee to Islamabad. Fergusson met him there a year later, and agreed to help him get to London and claim asylum on the condition that, once the bureaucratic hurdles had been cleared, Mir would neither expect nor ask for any further help. Once in London, Mir, to Fergusson’s surprise, kept his word. Granted asylum, he contacted distant family friends, found himself a flat in the east end and slipped into the Afghan immigrant groove – signing on, taking a series of badly paid jobs, sending the bulk of his wages back to Pakistan to help support his exiled family. Troubled by the prevalence of sexual imagery and alcohol, and longing for his family, Mir had deeply ambivalent feelings about his life in London. Then, four years ago, two of his brothers and a cousin smuggled themselves into England. Fergusson began to record the story of what looked set to be a family reunion of Afghans in London. In reality, however, it was the beginning of a disaster.
Gulabuddin was always the likeliest of the three arrivals from Afghanistan to make a mess of his life in London, although none of us could have predicted how spectacularly. His depression should have been lifted by the success of his recent asylum appeal. Perhaps it had been – perhaps his subsequent behaviour was a last spontaneous act of joie de vivre before the arrival of his wife and children. Yet what he did was so illogical, so stupidly risky, it was hard to avoid the conclusion that he was still not quite right in the head.
I didn’t know him well. I was only connected to him via his cousin, Mir, my interpreter and fixer from the days when I worked as a freelance journalist in Afghanistan. I had helped Mir gain asylum in Britain three years earlier. His work for me and other western journalists, notably Lionel David of the BBC, had put his life in danger. I thought that we westerners collectively owed him at least that much. He was clever, resourceful and spoke good English – a fine example of a well born and well educated Pashtun. So it wasn’t too long before he established himself and settled down in a smart east London council flat. The complication was his family.
In the summer of 2000, a year before the problems began, two of Mir’s brothers and his cousin Gulabuddin had without my knowledge smuggled themselves into England in the standard way, arriving at Dover in the back of a truck. Mir was thrilled. As with most Afghans, family was sacred to him; he lived through it and for it. The thought of seeing his relatives again had sustained him through many lonely nights in this alien city, and if he could not return to them, then they would have to come to him. I felt ambiguous about the arrival of the newcomers. On the one hand I understood that eventual family reunion was the likeliest, and perhaps only, means by which Mir would ever be happy again. On the other, I inwardly groaned at the memory of the home office paperwork and court appearances I had undertaken on Mir’s behalf. The thought of repeating this dreary cycle in triplicate did not appeal.
Unlike Mir, the newcomers spoke little English and struggled to adapt to their new life – particularly Gulabuddin, the eldest of them. Back in Afghanistan, he had been a respected professor of mathematics. Here, however, he felt less than nothing. He pined for the wife and three children he had been forced to leave behind, and sank into despondency. I had seen him slobbing around Mir’s flat, which he seldom left. His uncertain mental state was exacerbated by what had happened to him back home. The Taleban had applied electrodes to the soles of his feet, and beaten him so badly that he still passed blood in his urine. At one stage he had been locked in a partially flooded cell with a rotting corpse for company.
I was in my office in Mayfair when Mir rang.
“I don’t know what to do. It’s my idiot cousin. He’s done something… werry stupid and he is in prison now. The police arrested him and he gave a false name. James, I am so ashamed. I can’t tell anyone.”
It seemed that Gulabuddin, without telling his cousins, had been making some extra cash by minicabbing around the east end. On the previous Friday he had picked up a passenger from a wine bar, a young white female, who was now alleging that Gulabuddin had “done things” to her in the back of the car.
“What sort of things, Mir? What are we talking about here – sexual assault?”
“Something like this,” Mir muttered.
“You mean it’s more serious? Did he rape her? What did the police say?”
“He says he never did it. He says that she was leading all the time and that he just followed.”
“But the charge is rape?”
It was rape. I began thinking furiously what this might signify – for Gulabuddin’s own future, for the future of his wife and three children, for the chances of the family’s reunion, anywhere, ever. If convicted, would the home office seek to deport him? It seemed a reasonable bet. Even if he were allowed to stay, his name would surely be added to the police register of sex offenders. There would be no chance of his working as a teacher. There was also the little matter of what several years on the sex offenders’ wing of a British prison might do to him.
Could he really have raped someone? He was a gentle man, but also powerfully built. He had not seen his wife for over two years. On a summer’s night with an attractive white woman in the back of the car, probably drunk, perhaps appearing to be available – who was to say he had not succumbed to a moment of male madness and done something terrible?
I was sure that his young cousins were incapable of such a crime. They were more disciplined, more saturated in the strict mores of their Pashtun upbringing. They understood the risks of misbehaving in Britain, the fragility of their status here. Gulabuddin was not focused. He was bored and frustrated. The secret minicabbing sounded like a desire for independence and a chance to get away from the claustrophobia of Mir’s flat. The fact that he gave the police a false name sounded ominous too.
“I am so angry with him,” Mir continued, with shame in his voice. “I don’t understand why he didn’t go to a prostitute if he wanted to do this. I didn’t want to tell you. But yesterday they moved him from the police station to some other place. Pent… Penting something. A big prison for proper criminals.”
“Who else knows? Have you told your family?”
“Only my little brother Musa. I can’t tell my father. It would kill him. Do you know the penalty for adultery in Afghanistan?”
It was stoning to death, of course. And nowhere were the injunctions of Shari’a law more zealously or literally followed than in modern Afghanistan. Worse still, the Shari’a law punishments were decreed by the Muslim clergy – and the head of Gulabuddin’s family was a senior Shari’a judge. This was already a personal disaster for Gulabuddin, even if he were ultimately acquitted of rape in an English court.
I recalled a conversation I had had the year before with Kahar Walji, a solicitor specialising in asylum in Dollis Hill. His words suddenly seemed eerily prescient. He had, he said, handled 3-4,000 Afghan asylum cases in the previous five years. Since he was generally an asylum-seeker’s first and only contact with the English legal system, they usually came back to him when they got into trouble with the police. Yet in the whole five years that he had been dealing with Afghans he had handled fewer than a dozen serious crime cases.
“They are good citizens. Very law-abiding,” he said, leaning back in his tilting chair. “They assimilate well. They are the most adaptable people.”
“What about the criminal cases?” I asked, perhaps expecting him to mention involvement in heroin smuggling or the funding of terrorists.
“In almost every case the charge has been sexual assault,” said Walji, and he didn’t doubt the reason: “It’s the media’s influence. They see western women on television – and they get the wrong notion. They think women here are loose and… asking for it, if you understand me.” His sexual assault clients were also of a type: “Waiters, minicab drivers – I’ve had two of those – they are often in jobs that bring them into a lot of contact with women. Especially drunk women. They think, ‘she wants me to squeeze her breasts.’ And so sometimes they try it.”
“What’s the defence? Do you try to explain the culture gap to the judge?”
“That never works. The judges always say the same thing. The driver of a minicab is in a fiduciary position vis ? vis his passenger, with a duty of care. It’s a principle of English common law. They take a dim view of anyone who breaches that trust.”
The only light in the darkness was Mir’s conviction that his cousin had not raped the woman. He had spoken to Gulabuddin in a police cell before his transfer to Pentonville, where he swore by the beard of the Prophet that he was innocent.
Gulabuddin’s version of what happened was this: it was one o’clock on a Saturday morning and he was driving the woman to her home. On the way she made several mobile phone calls to a man on night shift at her office. Although Gulabuddin’s English was still poor, he understood just enough to work out that she had a crush on this man, and that the man wasn’t interested. But she had plainly drunk a few glasses of wine, and persisted with the calls. Halfway home she ordered Gulabuddin to make a detour to her office. She intended to visit the man she fancied, on the pretext of retrieving her umbrella. In the office car park she made a further telephone call, but she was refused admittance to the building. She then remained in the back of the car for over an hour, lovelorn and maudlin, fretting to the half-comprehending Gulabuddin about her uninterested lover. Eventually, Gulabuddin suggested that she should either get out or let him take her home, but she refused to move. So he got out and opened her door, whereupon she invited him to join her on the back seat. He regretted it deeply now, but he had allowed her to pull him in. He had no idea why she had phoned the police once she had finally got out of the car, although he suspected it was a ruse to gain attention from the man who had spurned her.
“And you really believe him?” I asked Mir when he had related all this.
“James, I made him look me in the eye,” he replied. “He swore he did not do this thing.”
“I’d like to hear it for myself. Can we see him?”
It took a fortnight to arrange the visit to Pentonville prison. Mir’s arrival in the visitor centre on the Caledonian Road was shadowed as usual by Musa. We filled in forms and progressed through a gloomy maze of bullet-proof doors, emerging at last into the cavernous visiting hall. The inmates sat at tables arranged in long rows, dozens and dozens of them, most of them black, the mostly white prison guards patrolling the spaces in between like teachers in an exam hall. The prisoners were separated from their visitors by a crenellated partition that came no higher than the waist, making it easy to lean across to kiss or touch a wife, girlfriend or child. There were moments of intense intimacy going on all around.
Prisoner number JM4810 was dressed like all the others in a grey tracksuit and red nylon bib. He rose to greet us with a faint smile, murmuring something as he shook my hand in the formal way, placing his right hand on his heart and ushering me to sit. Mir indicated a vending machine and asked if I wanted tea. Even here they were clinging to their traditions like mariners to a shipwreck.
“What I want,” I said, “is to hear what happened from Gulabuddin. Right away – all of it, in detail.”
Gulabuddin’s story took almost an hour to tell. Mir had to pass on everything in English, and there were frequent interruptions. Musa could not stop himself from haranguing Gulabuddin, jabbing the table with a forefinger. Ordinarily this would have been considered impertinence towards an elder and Mir would have brought him to heel like a naughty puppy, but he didn’t intervene because he was furious with his cousin too. By the end of his narrative Gulabuddin could barely raise his eyes from the table.
Yet his version of events was impressively consistent with the one related by Mir, and he gave no indication that he was guilty of rape. There was even a plausible explanation for why he had given the police a false name. His Afghan driving licence entitled him to drive a private car in Britain, but insurance companies did not cover minicabbing on such a licence. His solution was a classic example of Afghan resourcefulness: he falsified a British driving licence, turning himself into an anonymous London Pakistani: Zahid Amin Khan, place of birth Rawalpindi, now resident at the patently false address of 88 Noor Shah Avenue, London SW18. I saw a photocopy of the fake document later, and was stunned by its verisimilitude. Mir said that such forgery was common practice in the east end. It later emerged that 18 of the 32 drivers at E-Z Cars, the minicab office that Gulabuddin worked for, had done the same as he had. The police had traced him through this office and arrested him just down the road, so when they asked if he was Zahid Amin Khan he had naturally replied that he was.
I pushed Gulabuddin hard on the details.
“Why did you let her pull you into the cab like that?” Mir translated. Gulabuddin simply shrugged.
“Was she pretty?”
The answer was long and evidently lyrical. An almost nostalgic look flitted across Gulabuddin’s face.
“He says she had hair the colour of dates,” said Mir.
“Of dates. And then what? Who undid your – you know. Your fly.”
Emphatically: “She did.”
“And what was she wearing? A skirt, or trousers?”
“And did you pull down her trousers?”
“No. She did.”
Suddenly, a violent scuffle broke out nearby between guards and another visitor, over an attempt to pass drugs to an inmate. Gulabuddin broke off from his story, musing about how much heroin he had seen in the prison. “All from Afghanistan,” he added with the ghost of a smile. He was probably right: at least 80 per cent of all heroin in Europe originates in Afghanistan. Pentonville, one of Britain’s busiest prisons, is hopelessly overcrowded, and lacks sufficient guards. The previous week this shortage had caused a riot on D wing, and it had taken an emergency draft of 350 police officers to coax them back inside.
“Tree hundred fifty,” Gulabuddin exclaimed, strangely impressed by the Met’s big turnout. It was only slightly encouraging that he was at last starting to learn a bit of English.
“I hope you weren’t involved.”
“No. I am on R wing – R for Rumi,” he added, rolling his r’s preposterously.
I caught the reference, and smiled. His cousins often quoted Jalaluddin Rumi, a 13th-century mystic and poet who was born in Balkh, where the family used to go on picnics. Rumi spent most of his life in modern-day Turkey, but the Afghans regard him as one of their own. His verse displays a mixture of sensuality and spiritual rigour that is distinctly Asian in character. It is laconic, almost aphoristic, and seems to lose little in the translation from the Persian. It is also perfect prison poetry, what Mir called qaza-ye ruh, sustenance for the soul.
Weep like the waterwheel,
That green herbs may spring up
From the courtyard of your soul.
If you wish for tears,
Have mercy on one who sheds tears;
If you wish mercy, show mercy to the weak.
The world is a prison and we are the prisoners:
Dig a hole in the prison and let yourself out!
Visiting time was soon over, and the brothers parted from their cousin without much apparent emotion. As we stood to leave, however, Gulabuddin said one thing more in an insistent voice.
“He says he wants to stand trial because he knows in his heart that he is innocent,” Mir translated tonelessly. “He says that England is a fair country with a strong legal system and that justice is sure to prevail if Allah wills it.” Gulabuddin’s faith in the justice system was worryingly naive. He was going to have to work hard to prove his innocence, which would be far from obvious to a typical English jury. It was clear that he hadn’t begun to understand how much trouble he was in. But the conviction behind his assertion of innocence was impressive, and in the end I was persuaded he didn’t belong in Pentonville. So out in the prison car park I offered to stand bail for him.
The solicitors had warned that in the unlikely event of bail being granted it would probably be set at around ?10,000. It was an impossible sum for the brothers to raise, but I had enough savings to risk it, and the money would be recoverable after the trial, providing Gulabuddin turned up for it. When Mir had arrived in London I had undertaken to help him only in the event of emergency. This surely qualified. I was certain that Gulabuddin’s best chance of resuming a normal life was to get out of prison as soon as possible. But Mir looked at me blankly before turning away and conferring with Musa. Musa listened, then answered emphatically in the negative.
“Don’t you want your cousin to get out of here?”
“Musa thinks they should throw away the key and leave him in there forever,” Mir answered for him.
“You can’t be serious.”
“Not forever – maybe just for two weeks more. He’s not showing proper shame for this thing.”
“You mean you think he did it?”
“Not the rape,” Mir shook his head impatiently. “The adultery. I told him, if he had done this in Afghanistan he would be under the ground by now.”
“But he’s not in Afghanistan any more!”
“Adultery is serious,” Mir continued, “werry serious. The Prophet (peace be upon him) says there are only three circumstances in which a Muslim must be executed. If he turns his back on Islam and his community; a life for a life; or if a married person commits adultery. It is even the same for you. Did not Allah say to your Moses, thou shalt not commit adultery?”
“Not on pain of death,” I protested. It was amazing how easily Mir could still switch into mullah-speak.
“Gulabuddin has dishonoured me in London,” he continued. “He has dishonoured my family. He has gone minicabbing without telling me while Musa has worked hard in a pizza shop.”
Musa nodded self-righteously.
“Man, your prisons are too soft. He’s sitting around in there watching television all day.”
There wasn’t that much television available in Pentonville, but Mir’s broader point was unarguable. I had seen for myself the medieval conditions in Afghanistan’s jails. Overcrowding, stifling heat, stygian darkness and beatings were the norm; and all of this family had experienced them at first hand.
“It may be better than in Afghanistan, but this prison is still not a good place to be,” I said. “Shouldn’t we at least lodge an application for bail?”
Mir was unmoved. “Two weeks more,” he said.
Later that evening I was back in my flat watching television, nursing a whisky and feeling deeply sorry for Gulabuddin. The night’s programming happened to be particularly prurient. It was no wonder that he was confused about western sexuality.
Six weeks went by before Gulabuddin was granted a bail hearing. It was held in a courtroom at the Old Bailey. My doubts about the police-nominated lawyers were confirmed when their appointed barrister failed to show up. A substitute arrived at the last moment with a fold-up bicycle under his arm, panting for breath, his bald head sweating. He knew almost nothing about the case, and couldn’t even pronounce Gulabuddin’s name. Yet the judge responded as well as could be hoped. I stood to attention in my pinstripe suit and he looked me up and down, visibly surprised by a bail application in a case such as this.
“May I ask,” he said, “how you know the accused?”
He was prepared to grant bail, a small victory in itself, but there was one problem. If Gulabuddin was bailed, he could not return home because his flat was too close to that of his alleged victim. The judge would not countenance the possibility of a chance meeting between the two of them ahead of the trial. But up popped the bald barrister.
“My lord,” he said, “I haven’t actually raised this possibility with Mr Fergusson, but you will see from the papers before you that he lives several miles from the area in question, on the other side of London. Would it be acceptable to your lordship if the accused were to stay with him pending trial?”
“Well, Mr Fergusson?” said his lordship. “Would that proposition be acceptable to you?”
I squirmed, conscious of Mir watching from high above in the public gallery. “I mean, yes of course, in principle, your honour, although… I can foresee certain difficulties with that solution.” I lived in a one-bedroom flat, and the trial could be months away. Did I really want a depressed Afghan refugee sleeping on my sofa for all that time? But the judge saved me.
“No,” he said, with a wry shake of the head. “It isn’t fair to impose a condition like that on the bailor. Come back in a week, and if you can provide an alternative address then I will grant bail as appropriate.”
“Thanks a lot,” I said to the barrister afterwards.
“Yes, sorry about that. But it’s a good result. I never thought he’d get bail, it’s rare in rape cases. Must have been the suit you’re wearing.”
Mir knew plenty of people who would willingly have put Gulabuddin up, but he was reluctant to approach any of them because to do so would mean letting them in on a shameful secret. The potential damage to his family’s reputation was a theme that he returned to again and again. In east London he had already circulated a cover story, telling inquirers that Gulabuddin had been imprisoned for minicabbing without a proper licence – a fiction that caused a minor panic among the local Asian minicabbing community. He would later tell his father in Pakistan that Gulabuddin had run over and killed a child, and risked a long prison sentence as a result. Theirs was a topsy-turvy moral universe, in which it was preferable by far to be guilty of manslaughter than of adultery. In the end, however, Mir had to choose between Gulabuddin spending several months more in prison or his immediate release. He finally saw reason, and after much deliberation selected a mild-mannered Tajik, a chef from Kabul whom he had once helped with some immigration paperwork. He swore him to secrecy, and the Tajik made a room ready for Gulabuddin in his house in Norwood, southeast London. Bail was duly granted. I rode out to Stratford magistrates court to deliver a cheque, a trial date was set for December 2002, and Gulabuddin was released the same day.
The trial date gave the Afghans a goal to aim for, but there was no doubt that everything had begun to militate against the westward migration of Mir’s extended family. Gulabuddin’s wife and children could not come to Britain now, not with a crown case pending against him. It would be at least four months before normality resumed, even assuming that Gulabuddin was acquitted. The problem with this delay was spelled out by Anna Stein, an immigration lawyer who had previously helped the family. It was already two years since the last members of the family had left central Asia, and nothing particularly terrible had happened to the relatives left behind. The more time that went by, the harder it would be to argue their case for asylum to the authorities. The government was tightening its asylum conditions all the time. With the removal of the Taleban and the establishment of Hamid Karzai’s regime in Kabul, the home office had just cancelled its policy of automatically accepting asylum-seekers from Afghanistan – a policy that had lasted for more than 20 years.
The trial was slow to get under way once the day finally came. There were two false starts caused by the inadequacy of the Old Bailey’s pool of interpreters. The first one, a young Kabuli woman who had been brought up in Birmingham, was too embarrassed to deal with the seamy details of a rape case. Finding a substitute was made more difficult because the trial coincided with Eid al-Fitr (the feast of the breaking of the fast that marks the end of Ramadan), which meant that Afghans were unwilling to work. One who was prepared to do so spoke such poor English that he stumbled over the swearing-in oath and was dismissed on the spot. By the time the trial was over, six different interpreters had sat with Gulabuddin in the dock. Mir had hoped to keep the affair secret from London’s Afghan community, but that hope looked more forlorn with every personnel change.
The trial began at the end of 2002 and lasted for five days. Lionel David and I had been recruited as character witnesses, which meant that we were unable to watch the proceedings until after we had testified, but to begin with, things seemed to be going well. We learned that the testimony of the complainant, Maureen Rivers, had been so poor that the prosecution counsel was visibly disheartened.
Maureen Rivers naturally had her own version of what had happened that hot summer night, but after close examination of certain prosecution documents it looked full of discrepancies to me. She now maintained that she had diverted the taxi to her office not in order to go and surprise the night worker she fancied (which was what she had told the police operator who answered her 999 call), but because she was alarmed by Gulabuddin’s improper behaviour in the course of the journey. She claimed he had used the phrase “I’m going to give you some loving” – which was implausible, given Gulabuddin’s poor English – and that she had gone to the office to seek refuge. But if that was true, then surely she would have got out of the car at once upon reaching her destination. Instead, she sat in the car for more than an hour, chatting to the scarcely comprehending Gulabuddin and phoning the unrelenting man in the office on her mobile. Lenora, our defence barrister, had the phone company records that showed the exact time and duration of the calls. She called him six times in 45 minutes. Furthermore, the man in the office who had received those calls had testified that there had been no cry for help from Maureen, no sense that anything was wrong. She just wanted to see him, and he had told her to go home because she sounded drunk.
Gulabuddin’s description of her hair – the colour of dates – had led me to picture a slim, pretty secretary, but there was nothing particularly attractive about the real Maureen. Even Gulabuddin now struggled to explain why he had been tempted.
“I was just an animal,” he murmured, shaking his head with shame. At the end of the day of her testimony, Lionel and I took Gulabuddin and Mir out of the Old Bailey for a pep talk and debrief. As we crossed the road, a pressman ambushed us and began to take photographs. There had been a big press pack waiting by the entrance all week hoping for a shot of the defendant in a high-profile trial in another courtroom, but I had hoped they wouldn’t bother with us. I held a bag in front of Gulabuddin’s face, but the photographer skipped backwards down the street ahead of us, his camera twisting and turning, a ritual bizarrely familiar from television news.
“Can they really do that?” asked Mir once we were installed in the sanctuary of a nearby wine bar.
“I’m afraid they can in this country,” I said.
As Lionel brought them a Coke each I noticed that Gulabuddin’s hands were shaking uncontrollably. He hadn’t slept at all the previous night.
“He’s not looking well,” I commented to Mir.
“I know. He’s ashamed of this thing now,” he said.
“You will go easy on him, won’t you? He’s got to be on form tomorrow.”
“Don’t worry. He knows he is in big trouble. He knew from the moment he saw the size of this place,” Mir said, jerking his head towards the Old Bailey.
But Gulabuddin messed up his testimony. At the recess the following day the prosecution counsel emerged from the courtroom with a spring in her step, and Lenora with a doleful face. “I can’t understand it,” Lenora said. “He was so good at explaining himself in my chambers. I’m putting the same sort of questions to him as before but the answers are just completely different.”
So different, indeed, that she wondered if there was yet another problem with the interpreter. Mir had been in the public gallery, and also thought this might be the case. It was a Friday. When the court reconvened after lunch, Lenora voiced her concerns and requested the trial be adjourned until Monday so that she could have the transcripts independently verified over the weekend. The judge agreed with reluctance, evidently irritated by the delays that the interpreter problems had already caused. But the translation service company that checked the transcripts could find nothing wrong, and the judge’s irritation predictably turned into a suspicion that the adjournment had been a delaying tactic by the defence. Nevertheless, when the trial recommenced, it did so with yet another nervous interpreter in the dock.
We didn’t dare tell Gulabuddin that the press were now on to the story. Lionel had checked the news agency wires in his office at the BBC and found an item headed “Afghan minicab driver pounces on fare.” The newspapers hadn’t picked it up yet, but further shameful publicity was now a strong possibility.
Worse, the judge and jury, already detained for longer than they should have been in this trial, had begun to turn against Gulabuddin. In court he was almost as inconsistent as Rivers. He mumbled ineffectively, cowed by the glare of the jury. I could see how the shame he felt might easily be mistaken for guilt. He stammered that he had been prevented from resisting his passenger’s advances by the pain in his back, a line of defence that Lenora had never heard before and would certainly have advised against if she had. His back was strong enough for him to get in and out of a car, after all, and his defence depended on proving that whatever happened between him and Rivers had been consensual. There was another problem. The judge latched on to the fact that Gulabuddin had been driving a minicab under a false identity. Lenora tried to argue that her client was not on trial for this lesser crime – indeed, the police had not even charged him with it – but the judge insisted that it shed light on the defendant’s moral character.
Never mind the fact that Gulabuddin’s car was properly taxed and registered in his real name. “This man admits that he has been living a lie,” said the judge. Why should the court believe anything he said?
By the time I took the stand, my heart hammering, the defence was drowning. At the start of the trial Lenora had confidently addressed Gulabuddin as “professor,” but she was now referring to him as “Mr.” Her confidence had taken a knock, and the prosecution smelled blood.
“Mr Fergusson,” the beak-nosed prosecutor said. “You told us that the defendant was a professor of mathematics in Afghanistan; who told you that?”
“My knowledge of him as a professor predates this case by many years,” I replied, startled.
The prosecutor smiled thinly. “But you do not know that yourself, in any event?”
“I’ve never been taught by him in a classroom, no.”
The fact that Gulabuddin was a maths professor and not the freeloading asylum-seeking peasant of popular imagination was supposed to be one of his defence’s strong points. Britain’s state schools were infamously short of teachers. Didn’t that make him precisely the kind of immigrant that the country needed? At Lenora’s prompting I gave the court a long description of Gulabuddin’s background, the importance of status to his family, the harshness of the Pashtunwali moral code and the respect that was traditionally accorded to women. The point was to demonstrate that an Afghan brought up in such circumstances and in such a culture was very unlikely to have committed rape, and that even adultery represented a gross aberration for him. But my exposition was quickly turned against the defence.
“So if somebody like this man committed adultery, he would know that he was committing a grave sin?” the judge suddenly interjected.
I had to agree.
“I asked you the question because you put him on moral high ground. On his own account he has abandoned that in this country.”
“If it was consensual sex, I don’t see why he has, necessarily,” I said, struggling on. “He is not in Afghanistan… the moral ground is a different place in Afghanistan than it is here, is it not?”
This was bad. You could hear the jury’s sharp intake of breath. The judge gave me a piercing look. “He has abandoned the moral high ground in this country, and that does not surprise you?”
In that moment I felt certain that Gulabuddin was already a condemned man. I left the witness box feeling like some sort of social delinquent. How extraordinary, the judge seemed subtly to have implied, that this man even knows the accused.
Lionel testified next, and was left with the same impression. We couldn’t help Gulabuddin. The prosecution sought to show that we didn’t really know him – that we were actually there because we were friends of his cousin, not of his. The implication was that our presence in court was irrelevant.
Then the prosecutor found a damaging discrepancy in our opinions of the likelihood of Gulabuddin’s being stoned to death if he had committed adultery in his own country, and I kicked myself for not having got our story straight beforehand. Lionel said it was unlikely; I had said there was a good chance. This was unfair, because we were in court as character witnesses, not as experts in Afghan jurisprudence. I didn’t know then what I know now, that death by stoning usually only applies to a male adulterer if there are three independent witnesses to the act. It doesn’t apply very often, in other words. The severity with which penalties are administered varies from region to region and – notably so in the case of Afghanistan – from regime to regime. Crucially, the contrition of the accused is often a central factor in the sentencing.
Gulabuddin was so contrite that he could hardly speak, but that was entirely irrelevant to this Old Bailey judge. As he told the jury later: “It matters tuppence, really, as to whether or not the accused might be stoned to death in Afghanistan.”
Lenora summed up the defence well. She had a kind, expressive face, and she believed Gulabuddin to be innocent. “There are a lot of stereotypes involved here,” she said. “Asylum-seekers, minicab rape, the fact that the accused is an Afghan. Don’t be influenced by these.” She homed in on the many discrepancies in Maureen Rivers’s testimony, and made the jury reread the relevant passages in the transcript of her 999 phone call. When Mir turned around from the pew in front and asked, “Is it good?” I felt confident enough to give him a thumbs-up sign. But the judge’s summing-up that followed seemed to cancel out Lenora’s good work.
“Sympathy plays no part in your considerations,” he told the jury. “Put out of your mind any form of sympathy for the girl and what she says she has gone through. Also put out of your mind any form of sympathy for the defendant because he comes from a good family, and so on and so forth.”
By calling Maureen Rivers a “girl” he had already begun to tip the balance in her favour. On and on it went in a similar vein, with Maureen Rivers’s version given an hour out of the hour and a half that the summing-up lasted: the innocent “girl” versus “the man who had been living a lie.”
The prosecution contended that Gulabuddin had lied about his back pain, lied about the precise location of the attack, lied about being pulled into the back of the car. Ultimately it was a case of his word against hers; and in court, her word had evidently been every bit as plausible as his.
Lenora complained afterwards that the spin the judge had put on Maureen Rivers’s testimony made her sound far more eloquent and consistent than she had really been. For instance, the complainant had diverted the taxi to her office on the pretext of collecting an umbrella. “A flimsy excuse, of course,” the judge told the jury. “So why? Was she trying to warn off the driver, or trying to make a play for the man at work?” There was little doubt what he thought had happened: “She wanted the driver to get the impression that she had a man on the end of the telephone, and hoped that would cool his ardour,” he said.
Yet there was barely a mention of Lenora’s cross-examination of the complainant, least of all her crucial evidence of the 999 call. “There’s somebody there that I like,” she told the police operator, moments after the alleged attack, “and I was just using my umbrella as an excuse to go and pick it up.”
Medical examination of the pair proved that sex had occurred. There was little firm evidence to support rape, yet the judge seemed to linger over the medical report’s most suggestive passages, so that Mir buried his head in his hands. His words seemed almost calculated to shock. He said the complainant had internal abrasions that were “consistent with sexual intercourse of a rough or energetic kind.” There was fresh bruising “consistent with rough sex in a confined space.” He also mentioned how the doctors had found “a milky secretion deep down inside her,” even though the complainant had said she thought “her attacker,” as the judge was at this point describing Gulabuddin, had not ejaculated. Once again it seemed pretty clear what the judge thought, even though the “excessive whitish creamy discharge” that the doctors found on the complainant’s vaginal wall was suggestive to them of thrush.
The jury’s verdict was imminent. Gulabuddin was allowed to accompany us to the canteen only if escorted by a court employee, a grandmotherly solicitor’s clerk. In the canteen, Gulabuddin began to cry, a single hot tear that rolled down his cheek and splashed on the table. Mir looked away.
“Aw, come on dearie,” said the clerk, giving him a tissue. “It might never happen.”
Gulabuddin turned his back to blow his nose and remained facing away, his head down and his shoulders heaving. Mir sat upright, shook his head impassively and said nothing. “Oh dear,” sighed the clerk. “It’s always difficult before the verdict, I know.” She was a wise old bird whose chatter about the countless rape trials she had seen might have been obtrusive but was actually comforting.
“I was raped myself once, you know,” she added matter-of-factly. “Gang-raped, actually. A couple of Italians slipped a Mickey Finn in me drink when I was on holiday… I was a girl at the time, not even eighteen. I didn’t know anything. They caught the bastards but that was a proper rape, not like this business. I think the law’s very tough on men these days. It’s such a shame. He’s a very nice man,” she added, nodding at Gulabuddin’s silently trembling back.
They found him guilty. The jury had elected the foreman I’d hoped for, the kindly-looking older man with the cardigan and glasses, but obviously I’d read him wrong. In fact I’d read all of them wrong.
“Guilty,” he said in a sonorous voice put on for the occasion. The tension in the courtroom deflated at last. Lenora rose wearily and pleaded for sentencing to be deferred pending a psychiatric report (which was reluctantly granted) and applied for bail pending that examination (which was peremptorily refused).
“Very well,” nodded the judge. “Take him down.”
I caught Gulabuddin’s eye for the final time and shrugged hopelessly. His face was white and there was a wild look in his eyes, and he stumbled as he turned so that the Securicor guards stepped forward to support him by the elbows. He lost all self-control at their touch and began to struggle desperately, clutching onto the banister as he vanished down through the floor, weeping openly now. There was a gothic clanking of keys and bolts being slid back and a final, animal howl of despair that was cut short by the slamming of a heavy metal door. The jurors looked momentarily shocked by this Faustian descent. But the judge quickly reassured them.
“I must thank the jury for their time and good work in this difficult case,” he said pleasantly, “particularly the jury member who I know has been anxious to get off on holiday.”
The jury beamed back their gratitude, as pleased as a patted dog. Mir twisted around in the seat in front of me and shook his head. He said: “My father will say that I did not look after my family properly.”
I thought of the old man in Peshawar, still under the impression that his nephew was in trouble for running somebody over. It was going to be difficult to keep the truth from him now. Then the judge announced that he wanted to deal with what he called a “side issue” – the ease with which the defendant had been able to drive a minicab without insurance. The press box was packed, and I suddenly understood that the judge wanted to publicise this case. He expounded jovially on the subject of photo-ID driving licences and the Evening Standard duly ran an article the following day, the first of many to come in the national press, complete with a photograph of Gulabuddin in his seedy suit. “Refugee posed as cab driver before raping woman in car,” ran the headline.
“Merry Christmas,” said the judge as he dismissed the jury. The ruination of Gulabuddin was complete.
Gulabuddin was taken to HMP Belmarsh, the high-security prison across the Thames from where he used to live, and immediately placed on suicide watch. Even so, he was attacked by a fellow prisoner during his first week, sustaining a nasty cut above one eye. As a convicted sex offender – a nonce – he was considered fair game by other prisoners, who had recognised him from a photograph in the Daily Sport. I later visited him at Belmarsh. He had shaved all his hair off and had lost a lot of weight. He wept and wondered desperately what would become of his wife and children. As the dependants of a full refugee they had the right to join him in Britain, but how was he supposed to support them from prison? He was dazed, but still insisting that he was innocent.
It took almost three months to find a suitable psychiatrist, but the one we did find seemed utterly convinced of Gulabuddin’s innocence. He doubted the veracity of Maureen Rivers’s statement, made six days after the event. The psychiatrist also pointed out how Maureen’s office colleagues had seemed quite anxious to keep their distance even after she had been attacked, because, as one of them explained, of “the possibility of any allegations being made against us.” Was she already known as a bit of a liability around her office? The psychiatrist seemed to suspect something of the sort. And in another section he wrote: “The clear impression comes across that she wanted to be with the man in the office that night, and that she was rebuffed. The feelings that such a rejection might have engendered need to be considered.”
There was more. The psychiatrist had considered every possible explanation for the discrepancies between Gulabuddin’s and Maureen Rivers’s accounts of what had happened, including the possibilities that Gulabuddin had been lying all along, or that he was in psychological denial, or that due to his mental state at the time he was grossly confused about normal boundaries. It occurred to me that some of these explanations might equally apply to Maureen Rivers. Perhaps she was not guilty of deliberate falsification. Perhaps the whole rape trial experience had been so traumatic that she now sincerely believed her own version of events.
The judge’s only comment on the report, back in the Old Bailey for the sentencing in March, was that he hadn’t been given enough time to read it properly. Describing Maureen Rivers’s “terrible ordeal,” during which she had been “faced with the added fear of not knowing whether you might be a murderer as well as a rapist,” he sentenced Gulabuddin to eight years in jail, which meant that with good behaviour he could be out in five. Then he recommended that Gulabuddin be deported at the end of his prison term.
It was hard to shake the suspicion that the judge wanted to publicise himself at Gulabuddin’s expense. A former barrister friend observed afterwards that he was not a full judge but a recorder, one of that breed of senior barrister who might be described as judges in waiting. Recorders typically liked to appear tough and decisive, my friend said, because it helped their chances of promotion. At the end of the trial he had ordered a police investigation into the E-Z Cars office. Eighteen of the drivers registered there were using false licences, and the remaining 14 were defrauding the DHSS by claiming unemployment benefit while working, and one of them, an Afghan, had tried to escape over the roof when the police arrived. The judge got his day in the Sun all right, and all the other national papers. The Daily Mail ran a large photograph of him beneath the headline: “No woman is safe in a minicab, says rape judge.” But Gulabuddin was named, and it was he who would forever be damaged by the story.
After the trial Mir drew the curtains in his bedroom, unplugged his phone and retired for three days. “Werry sick,” as he put it. He was still in denial about what had happened when he emerged, still determined to sustain indefinitely the fiction that his cousin had been jailed for dangerous driving. “They don’t read the Daily Mail in Afghanistan,” he argued.
They read it in England, though. It came as a shock to Mir, but every Afghan in the country seemed to know about Gulabuddin’s case. When he finally reconnected his phone it hardly stopped ringing with callers expressing their condolences and support. People came to visit from as far away as Manchester. No one who knew his family believed that Gulabuddin was guilty. He had fallen victim, they insisted, to the crazy English legal system, and believed to a man that his real crime was being an Afghan in a hostile foreign country.
Gulabuddin’s wife wrote letters from Peshawar for Mir to send to the judge and to Maureen Rivers, whose child she still believed had been run over and killed by her husband. The letters were written in good English, the latter a heartbreaking mother to mother plea for clemency. “I have three small children,” she wrote. “I understand the anger you must feel. But for the love of Allah have pity on us – who is to provide for them if their father is in prison?” Such pleading is an admissible part of the judicial process in Afghanistan, but Mir knew by now that it wasn’t worth passing on such letters over here, even if Gulabuddin’s wife had known the truth.
Just after the sentencing, Mir was offered a job at the Afghan embassy in Rome, a permanent job equivalent to the rank of first secretary. It was probably the lucky break of his life, but he felt unable to abandon London at a time of such deepening crisis for his family, and he didn’t accept it. Lenora sought leave to appeal against Gulabuddin’s conviction, complaining in particular about the judge’s summing-up. Six months later, leave was refused. “I am satisfied that your complaints are baseless,” the new judge wrote.
This May, Mir and I are trying again in the high court of appeal. Our recourse to legal aid is exhausted, but a new lawyer has promised not to charge us too much. He is quietly optimistic that he can get Gulabuddin’s sentence reduced by a year, perhaps two. Eight years, he reckons, was excessive for a non-aggravated rape of this type. The chance of getting the conviction quashed altogether is a lot slimmer, however. He puts it at about one in 40.