Man Jailed For Defening Brother Against Racist Mob Freed.

[fgalkin]

Isbar Ellahi spent nearly eight months in jail for "brawling" with a gang of youths whose attack led to the death of his brother, Israr.


Three senior judges at London's Court of Appeal today released Isbar after ruling he should never have been jailed.


Speaking outside court, Mr Ellahi's sister, Shakila, said: "This was a clear miscarriage of justice and I am relieved that we can start grieving for Israr. I am angry at the Crown Prosecution Service and the police who charged my brother.


"The system has gone badly wrong here and I am relieved he has been released today. There are no words that can account for what my family and I have gone through."


Lord Justice Hooper told the court that Israr, 30, from Stoke-on-Trent, was confronted by a gang of up to 15 white youths in June 2010, shortly after a racist attack on Tiger Bites takeway in Stoke.


His brother Isbar and friend Mohammed Shafiq, 30, of Robert Street, were passing in a car and got out in a bid to help him.

As they went to Israr's aid he was punched to the ground, causing injuries from which the father-of-three tragically died 12 days later, the judge said.

A charge of manslaughter against one of the gang was later dropped due to lack of evidence, and Isbar and Shafiq were controversially accused of violent disorder, which they later admitted, the court heard.

At Stoke Crown Court in November last year, both men received longer sentences than those who initiated the violence, with Isbar handed a three-and-a-half year jail term and Shafiq jailed for three years.

Four others were given sentences of up to two years and nine months after they admitted violent disorder. Two of them also pleaded guilty to affray.

Appealing today, Simon Farrell QC, for Isbar, said: "There is a sense from the family and the appellant that he should never have pleaded guilty to this. It is truly a tragic case."

Shafiq's lawyer, Balbir Singh, added: "The judge had no regard at all to the fact that the brother of one of appellants died, and the very good friend of the other.

"It is of great concern to them that they were unable to do more to help the man who they got out of the car to protect. It was not necessary to send those men to custody."

He told the court Shafiq's nine-year-old niece died from cancer while he was inside, and it was a source of "great distress" to him that he was not around to comfort his family.

Lord Justice Hooper, sitting with Mr Justice Hamblen and Mrs Justice Thirlwall, ruled that suspended sentences were the most the two men should have faced and cut both prison terms to allow their release.

The judge said: "It is not easily clear to determine why the two appellants pleaded guilty. They appear to have accepted that, having started effecting some lawful violence in defence of Israr, they went beyond that which they ought to have done.

"Whilst accepting that this court is loathe to interfere with a trial judge's assessment of culpability, we take the view that the judge seriously over-estimated and over-categorised the culpability of these two appellants.

"We take the view that, if there was to be custodial sentences at all, it would have been a short one that would have been suspended. However, they have now been in custody since November and have served a significant time in prison.

"Doing the best that we can do by passing a sentence which ensures their immediate release, but accepting that the sentence we would have passed would have been shorter, we substitute a sentence of nine months."

Outside court, Miss Ellahi added: "It is clear from the judge's remarks today that he should not have been charged. He was grief-ridden and frightened when he pleaded guilty."

Linky

God Bless England and her perfectly sensible legal system!

Have a very nice day.
-fgalkin

[Zaune]

One wonders how much pressure was applied in order to persuade Mr Ellahi to plead guilty, which has the unfortunate consequence of tying the court's hands a bit; in fact it pretty much compels the judge to impose a sentence, even the absolute bare minimum.

[Haruko]

Not surprised by the piss-poor handling of this case, considering this is the same London where eastern Londoners (i.e., where the poor immigrants from North Africa, Asia, etc are) live seven years less on average than western Londoners (i.e., rich and whiter) according to Ricky Burdett.* Also, lack of evidence, ha.

* "Finding Solutions For Urban Imbalances" (interview), Journal of International Affairs (Spring/Summer 2012, Vol. 65, Num. 2).

[madd0ct0r]

Haruko - this case was in stoke. Nowhere near london.

[thejester]

Not surprised by the piss-poor handling of this case, considering this is the same London where eastern Londoners (i.e., where the poor immigrants from North Africa, Asia, etc are) live seven years less on average than western Londoners (i.e., rich and whiter) according to Ricky Burdett.* Also, lack of evidence, ha.

* "Finding Solutions For Urban Imbalances" (interview), Journal of International Affairs (Spring/Summer 2012, Vol. 65, Num. 2).

What does that have to with anything? The article doesn't suggest this jailing was to do with race, just that the CPS and the trial judge got it badly wrong in judging who was culpable and who deserved punishment.

[Haruko]

Sorry; epic reading comprehension fail on my part. Yay skimming.

[Alyrium Denryle]

Wait wait wait... a man died in a 15 on 1 attack and no one got charged with manslaughter? What the fuck is considered manslaughter in the UK? Last time I checked, manslaughter generally requires that someone die as a result actions intended to harm--but not necessarily kill-- the dead person. It stands to reason that if you and 14 friends jump someone and they die, that a manslaughter charge would stick. What, was there a question as to whether or not the victim died?

As for charging the victim's brother and friend at all

Does the UK not protect those who defend others by statute? Hell, this makes me question whether they protect those who defend themselves by statute. I am sorry, but being jumped is not a "brawl". Against 15 people, it is a desperate fight for one's life. What is he expected under UK law to do, curl into a fetal position and hope for mercy? What is a bystander supposed to do? Call the police and HOPE they get there in time?

[madd0ct0r]

lack of evidence- according to the article.

assume the gang of twelve all covered each other's backs, and claim the three other guys started in by picking on one of them, and you can't prove which of them punched him to the ground.

still a fuck up for justice.

[Alyrium Denryle]

lack of evidence- according to the article.

assume the gang of twelve all covered each other's backs, and claim the three other guys started in by picking on one of them, and you can't prove which of them punched him to the ground.

still a fuck up for justice.

A) 3 starting a fight 15 buggers credibility, and 3 on 15, even if there was instigation, is not generally considered cause for a beat down, precisely because 15 people can easily restrain 3 without said beat down. Self defense afterall does need to use a legally defined "reasonable" amount of force.
B) Forensic evidence can establish certain things, via the amount of bodily trauma suffered
C) It does not matter which one struck the fatal punch, it was a group beat down. Unless the laws in those respect are vastly different than in the US, which given we have the same system of common law, I doubt they are, they are all culpable.
D) They have CCTV cameras all over the fucking place in the UK. Was this area not covered?

[madd0ct0r]

A) it wasn't a beat down - he got punched once, fell over and broke his head. He might even have thrown the first punch - his takeaway shop had been recently attacked, according to the OP.
B)see above
C) http://en.wikipedia.org/wiki/Manslaught ... nslaughter

Unlawful act manslaughter

Under English law, according to R v Creamer,[13] a person is guilty of involuntary manslaughter when he or she intends an unlawful act that is likely to do harm to the person, and death results which was neither foreseen nor intended. The alternative name for this crime is constructive manslaughter. Although the accused did not intend to cause serious harm or foresee the risk of doing so, and although an objective observer would not necessarily have predicted that serious harm would result, the accused's responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act.

In R v Dawson (1985) 81 Cr App R 150, CA, a petrol station attendant with a weak heart died of heart failure when the appellant attempted a robbery of the station. In judging whether this act was sufficiently dangerous, the Court of Appeal applied a test based on the "sober and reasonable" bystander who could be assumed to know that the use of a replica gun was likely to terrify people and so be a danger to those with a weak heart. Note the aggravated form of criminal damage with intent to endanger life under section 1(2) of the Criminal Damage Act 1971 which could provide the unlawful act if the damage actually causes death. But R v Carey, C and F 2006 EWCA Crim 17 limits the scope of unlawful act manslaughter. An argument became violent and the first defendant punched and kicked one victim. The second defendant assaulted the deceased by pulling her hair back and punching her in the face. The third defendant assaulted another. The deceased was one of the first to run away, after which she felt faint, and later died of a heart condition (ventricular fibrillation or dysrhythmia) which was congenital but which had not been diagnosed before her death. The unlawful act was said to be the affray and the judge held that it was legitimate to aggregate the violence by the other defendants in order to decide whether the affray had subjected the deceased to the threat of at least some physical harm, and so had been a cause of death. On appeal, it was inappropriate to hold the defendants liable for the death. There must be an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm. In turn, that act must cause the death. When deciding whether an act is dangerous, knowledge of the victim's characteristics may be relevant. In this case, no reasonable person would have been aware of the victim's heart condition which distinguishes this case from Dawson, and from R v Watson [1989 1 WLR 684 in which the victim's approximate age (he was 87 years old) and frail state would have been obvious to a reasonable person. A sober and reasonable person would not have foreseen that an apparently healthy person of 15 years would suffer shock as a result of it. The court held that the deceased's death was not caused by injuries that were a foreseeable result of the affray. The assault by the second defendant was an unlawful act causing death. The other two defendants could have been convicted by virtue of common purpose given that the death was an accidental departure from the general plan of the affray. But the Crown did not elect to present the case in this way, but pleaded the case as a public order group activity. The result would be that if anyone died in a general disturbance amounting to an affray, all those who participated could be convicted of manslaughter which would be against public policy. Deaths in a general disturbance are too remote to be caused by all participants.

Thus, a punch which causes a person to fall will almost inevitably satisfy the test of dangerousness, and where the victim falls and suffers a fatal head injury the accused is guilty of manslaughter. It is foreseeable that the victim is at risk of suffering some physical harm (albeit not serious harm) from such a punch and that is sufficient. Physical harm includes shock. The reason why the death resulting from the attempted robbery of the 60 year old petrol station attendant was not manslaughter was that the attempted robbery was not dangerous in the relevant sense. It was not foreseeable that an apparently healthy 60 year old man would suffer shock and a heart attack as a result of such an attempted robbery. But the jury properly found that it was foreseeable that an obviously frail and very old man was at risk of suffering shock leading to a heart attack as a result of a burglary committed at his home late at night.

So yes a punch to the head that results in accidental death is manslaughter, but the Crown has a policy of not pursuing it as a group charge, and they couldn't prove who threw the punch.

d) Apparently not, or if so, didn't get the image they needed for evidence. (there seems to be no doubt about the number of people, the order of events, or who the people were, so I'm guessing at least some of it was on CCTV.)