R v. Barak and Others

R v BARAK AND OTHERS

COURT OF APPEAL (CRIMINAL DIVISION)

7 Cr App R (S) 404

Hearing Date: 2 December 1985

2 December 1985

Index Terms:

Kidnapping -- Kidnapping Political Refugee with Intent to Return Him to His Country of origin -- Length of Sentence.

Held:

Sentences between 14 and 10 years' imprisonment upheld on four men who kidnapped a political refugee in order to enforce his return to his country of origin. The appellants pleaded guilty to one count of kidnapping and one of administering stupefying drugs. The appellants were concerned in kidnapping a man who had been a minister in the Government of Nigeria, but who had fled the country after a change of government. The victim was seized in the street and taken into a van where he was handcuffed and chained. He was subsequently drugged into unconsciousness and placed in a crate which was immediately taken to an airport. Three of the appellants were also inside crates. The crates were intercepted at the aiport and the victim released. The appellants were sentenced to terms varying between 14 and 10 years' imprisonment. Held: kidnapping was always a serious crime, which varied in its execution in a number of different ways. There were many political refugees or exiles living in the country, who must be free from any threat or fear of being forcibly abducted. The method of abducting the victim in this case was an affront to the rule of law, and the sentences were not in any way wrong.

Notes:

References: kidnapping, Current Sentencing Practice B 3-4.3(E).

Counsel:

G Carman QC and M Brompton, J Mathew QC and M Ashton, RD Cann QC and R Travers and W Wells QC and N Ezechie for the appellants severally. PANEL: CROOM-JOHNSON LJ, MCNEILL J AND SIR HUGH PARK

Judgment One:

CROOM-JOHNSON LJ (Reading the judgment of the court): These four applications for leave to appeal against sentence in respect of convictions at the Central Criminal Court, which resulted in sentences being passed by McCowan J on February 12, 1985. In the case of one of the applicants, Yusufu, there was an application for a very short extention of time, which we granted. The four applicants, to whom I will refer only by their second names, are Barak, Dr Shapiro, Abitbol and Yusufu and they were convicted by their own 7 Cr App R (S) 404 pleas of an indictment which contains two counts. The first count was one of kidnapping, which was that on July 5, 1984 they stole and unlawfully carried away Umaru Abdurahman Dikko against his will. The second count was administering stupefying drugs, contrary to section 22 of the Offences Against the Person Act 1861, which in fact was the administration of four different kinds of drugs to Dr Dikko, who was the kidnap victim, in the course of the kidnapping. On each of those counts they were sentenced to imprisonment and recommended for deportation. Barak was sentenced to 14 years on each count; Shapiro to 10 years on each count, Abitbol to 10 years on each count, and Yusufu to 12 years on each count, all those sentences being ordered to run concurrently. The bare facts from the description given by the prosecution were these: that the victim of the kidnapping was a Dr Dikko. He had been a Minister of Transport and Aviation of the Nigerian Government for four years up to December 1983. On January 1, 1984, there seems to have been a military coup in Nigeria. Dr Dikko fled to Britain and settled here. The new Nigerian Government considered that Dr Dikko had been guilty of corruption on a large scale while he was a Minister and in fact, on December 14 last year, proceedings against him were started in the magistrates' court at Lagos. Having come to this country at the beginning of 1984, Dr Dikko left his home in Bayswater. While he was walking along the pavement he was seized by three men and bundled into a van. There was a fourth man in the driving seat. Two of the three men who seized him were Barak and Abitbol, who are both Israeli citizens. The other two men present at the seizing have apparently not been apprehended. In the van Dr Dikko was told to keep quiet. He was handcuffed, his feet were chained together and he was gagged. He was told at first that he would have to pay a million dollars to his captors. That was subsequently changed to a billion dollars. It was said that his captors had a contract with the Nigerian Government. Money and jewellery were taken from him. The van was driven to Regents Park. There waiting was another van, a white van. That was a van which, like the one into which Dr Dikko had been bundled, had been hired by Barak. Also in the van at Regents Park were two wooden crates and with them was the applicant Dr Shapiro, who is an Israeli doctor, Dr Dikko was placed in one of the crates and he was drugged with the listed drugs, or some of them, which were used upon him by Dr Shapiro. Dr Dikko lost consciousness and he was unconscious for about 24 hours. The white van was driven by Barak, Abitbol and Dr Shapiro to Stansted Airport. On the way Dr Shapiro, who is a highly skilled medical man, fitted an ECG monitor to him. He provided him with tubes and an oxygen mask, with a blood pressure cuff and, at some stage, a form of drip. The treatment was obviously expert and very professional. The van which had been used in the initial kidnapping was taken away by the other two men and abandoned somewhere on the motorway. When they got to Stansted Airport they were then met by the fourth defendant, the applicant Yusufu. Yusufu had also been at Regents Park and had been present when Dr Dikko was transferred to the white van but had gone away. The reason why he had gone away was that he had to go and change into the uniform of an official of the Nigerian Airways. At Stansted Airport there was a freight 7 Cr App R (S) 404 airliner, belonging to Nigerian Airways, which had arrived the day before. Yusufu presented himself as an official of that airline. Also at Stansted Airport the crate containing Dr Dikko and Dr Shapiro was sealed. It had air holes and there was marked upon it lettering indicating that it was cargo destined for Nigeria. The other crate which was in the white van at Regents Park was now used by Barak and Abitbol, who got into it and were nailed into it by Yusufu. The intention was that all these people in those crates, four people, should be loaded on to the airliner and flown to Nigeria. It so happens that a Customs Official at Stansted had been alerted to the possibility that Dr Dikko, whose kidnapping was known, might be smuggled out to Nigeria and the Customs Officer, Mr Morrow, was suspicious of the crates. He asked that they be opened. He had an altercation with Yusufu and another Nigerian who was present, who attempted to pass the crates of as diplomatic cargo. When the Customs Officer had satisfied himself that these two crates were not diplomatic cargo, he indicated that he wanted them opened and Yusufu did his best to obstruct him in that, but the Customs Officer was not be be obstructed. Inside the crates, when they were opened, were the four men, and the police were called. Dr Dikko was transferred to hospital, where it is to the credit of Dr Shapiro that he immediately told the hospital authorities what drugs he had employed in order to drug Dr Dikko, so that they might give him the best possible treatment, and it is right to say that eventually Dr Dikko made a recovery without following ill effects. Each of the four applicants was interviewed by the police and made a number of statements. Barak, as it turned out from his own confessions and from the other evidence available, was quite clearly the leader and planner of the whole enterprise. He is an Israeli citizen, born in Israel, where his occupation is a diamond dealer. He had met somebody in New York, whose identity was never disclosed, who had enlisted his help in the idea of smuggling Dr Dikko out of this country back to Nigeria. At the time that he was arrested Barak was holding a Nigerian passport in a false name. He had been in this country for some weeks organising the kidnap. He had brought with him @10,000 to cover the expenses. He had been responsible for enlisting Abitbol and he had been responsible for enlisting Dr Shapiro. It was he who had hired the two vans. He had arranged for both Abitbol and Dr Shapiro, incidentally, to come to this country from Israel to take part. I shall have to say a little about the motives of the four applicants because they have been aired both before this court and before McCowan J at the Central Criminal Court. Barak's initial reason for having done this was, in effect, that he thought that there might be some benefit possibly to him in his business transactions, which are widespread, in assisting the Nigerians to get back Dr Dikko; but it was put before the judge and accepted by the judge that, although Barak thought there might well be something in this for him in a material way, his predominant interest was in doing a service for Israel in the direction of Nigeria and that it was a patriotic reason on his part which caused him to undertake this enterprise. It was put before McCowan J, and has been put before this court in mitigation, that Barak was not a paid mercenary in the way in which that is ordinarily understood, that in the course of kidnap no weapon had been used, 7 Cr App R (S) 404 and indeed that is right in one sense, that nothing like a gun or a physical weapon was used, although unquestionably violence of one kind and another was used against Dr Dikko in the course of his kidnap. It was also put before the judge and the Court, and was accepted by the judge, that Barak seriously believed and genuinely believed that Dr Dikko had been guilty of serious criminal offences in Nigeria. He believed that apparently upon the basis of what he had been told by his contacts who brought him in to organise the whole kidnap. It was also put before this Court and before the judge that it was in Barak's favour that he immediately accepted his responsibility as the leader and organiser of the whole kidnap, he came clean and that was to be regarded as a point in his favour. It was urged that he had brought the equipment necessary with great care in order to try and produce Dr Dikko in Nigeria unharmed, and that the physical ill-treatment to which Dr Dikko was subjected was to be of a temporary nature only. It was also put before this court and before the trial judge that this was not, as has been described by counsel, indiscriminate terrorism. It certainly was not indiscriminate. It was discriminate in the highest degree. Whether it is correct to say that it was not terrorism is another matter, but I will return to that in due course. Inevitably, on behalf of all four of the accused, it is put in their favour that they pleaded guilty and that some credit should be given in sentencing for that plea. There was in fact no choice. They had all been caught absolutely red-handed and one may regard the pleas of guilty as something which one can put on one side. That was Barak's part in the organisation. I have not dealt with all the details but there was obviously a degree of very careful organisation on his part. What was the part of Dr Shapiro? Dr Shapiro, who is now aged 43, was born in Russia. When he was 33 and had qualified locally, he was able to emigrate from Russia to Israel with his family. Unquestionably there he has established a very high reputation in the medical world. Put before the Court and with the Court papers are a number, about seven or eight, testimonials from medical colleagues in Israel speaking not only as to Dr Shapiro's character but as to his skills, which are obviously of a very high order. He was head of an intensive care unit at one of the hospitals in Israel. For the purposes of this case the most important qualification which he presents is that he is an expert anaesthetist, and that was why he was recruited. About four or five weeks before the kidnapping he had come to the United Kingdom from Israel and had spent a fortnight in London. He was given @2,000 with which to buy all the medical necessities for carrying through this plan, the drugs, the medical equipment, and so on. He did that and left it in safe storage with the drugs in a proper air conditioned environment in London. He also took part at that time in a discussion, certainly with Barak and also with Yusufu, as to the kind of crates which were to be used for the kidnap. He was insistent as to their size and that the airholes should be bored, and so on. There was originally a pair of crates which were to be supplied by a joinery firm in South London, which he found to be unsatisfactory, and it was to the specifications which were drawn up between the applicants that the crates that were used were made. 7 Cr App R (S) 404 Then Dr Shapiro returned to Israel until the time was ripe for the kidnapping. He returned to this country only a day before the kidnapping took place, in order to play his part., There he was at Regents Park, in the white van with the crates, when Dr Dikko was brought to the rendezvous. It has been urged on behalf of Dr Shapiro that he employed his medical skills with great skill and with great concern that Dr Dikko's health should not suffer and that he had co-operated with the hospital authorities afterwards in order to see that Dr Dikko was brought round properly. What was mainly urged on behalf of Dr Shapiro was this. Dr Shapiro has apparently formed an intense loyalty towards the country of his adoption, Israel. The contact which brought Dr Shapiro into this plot at the instigation of Barak, was somebody whom Dr Shapiro believed, and maybe believed rightly, one does not know, was somebody of importance in the Israeli Secret Service. At all events, what was firmly in Dr Shapiro's mind was this, that in taking part in this activity he was acting in the interests of the Israeli Secret Service and was doing what he did from patriotic motives. This was urged before the trial judge, who gave him full credit for this. Dr Shapiro had apparently done two years in military service as a doctor in Israel and this he regarded as part of his public duty. Abitbol is now aged 31, being born in Tunis. He moved from Tunis to France, where he was for a time in business as a restaurateur, and he then moved from France to Israel and is now an Israeli citizen. In Israel he has worked in the clothing and diamond business, and he comes into the story because he is a friend of Barak and was recuited by Barak. He said that he hoped that his part in this would result in him getting some good business from Nigeria. I think he specifically referred at one stage in the interview to construction projects, although his work in Israel had been in clothing and diamonds. His part in this was that he was to be the look-out man at the time of the kidnapping, that is to say, to see that no police were about, that there were no passers-by who might get in some way involved and therefore be injured in the course of the process, and so forth. It may be that he was not one in the forefront of the use of the violence, although he certainly was travelling in the original van to Regents Park. It is also of interest that he, with Barak, was to be put in the other crate and sent with the crate containing Dr Dikko in the aeroplane to Nigeria. It was urged that his part really was not that of an active participant but that he carried out only a very small part. However, whether that was the original intention, the fact is that he seems to have taken a very full part in the whole affair. A testimonial has been supplied to this court from a friend in Israel who speaks highly of Abitbol and says he had done charitable work in Israel. It has also been put before us, as it was put before McCowan J, that he was a somewhat naive person and it may be, to that extent, under the influence of the ringleader Barak. That was the part which was played by Abitbol in the course of the kidnapping. The last person is Yusufu. He is now aged 40. It has been revealed that he is a Major in the Nigerian Intelligence Corps. He acted as the liaison officer between whoever was organising this from the Nigerian end and Barak, and it is quite clear that he was going to and fro and was making himself available in order to help with the putting into practice of the plan. He was concerned with the designing of the crates. It was he who ultimately ordered the crates from 7 Cr App R (S) 404 the joinery firm in London and provided the specifications and drawings. The crates were delivered to an address in London and it was Yusufu who had to be responsible for their provision at the time when the kidnapping took place. It was he who was disguised as a representative of the Nigerian Airline by donning the appropriate uniform. He was there at the rendezvous in Regents Park and there again, after putting on the uniform, at Stansted and it was he who tried to obstruct the Customs Officer from finding out what was in the crates. I think the principle matter in mitigation of Yusufu has been this, that he said that he was ordered to do what he did by a very senior officer in the Nigerian Army, much more senior than he, and that he was a soldier who was acting on instructions and he had no choice but to carry them out. The judge, who did not deal in detail with that at the time of sentencing Yusufu, supplied on the following day a note to this court, which has been made available to Yusufu's counsel, to indicate that the judge at the time when he sentenced Yusufu was taking that into account and was going on that basis; but the judge made clear that the fact remains that Yusufu was doing an act which he obviously knew was illegal by the laws of the country he was in and as a soldier obeying orders he would know that, if he was found out in that country, he must face the consequences. We have had eloquent and very careful submissions in mitigation in this Court. The general submission has been that, taken as a whole, sentences which range from 14 years in the case of Barak, 12 years for Yusufu and 10 years for Shapiro and Abitbol were excessive. Emphasis has been placed, and understandably placed on this, that the motive of each of them, and which the trial judge accepted, was that they all thought that Dr Dikko was a very serious criminal in Nigeria and that what they were doing was, in effect, some sort of public duty to Nigeria in order to get Dr Dikko back to face legal proceedings in that country. It is not possible to accede to the submission which was made that this kidnapping really did not involve violence. It clearly did involve violence and in that I specifically include the use of the anaesthetic and drugs, because that was an outrage on Dr Dikko as a human being, in any event, and he had practically no signs of life when he was found in the crate at Stansted. He was in that condition thanks to the skill and care of Dr Shapiro. One has to consider very carefully this question of motive. Kidnapping, in any event, is always a serious crime. It varies in its execution in a mber of different ways. The motives which exist for it vary and, although this is not a case where the kidnapping was taking place, as so many unfortunately do, strictly out of greed in order to raise money, the fact is that the real seriousness of kidnapping is the deprivation of liberty. It is a kind of crime which has to be regarded with great seriousness. The circumstances in which it takes place varying as they do, there cannot be and is not anything that could be regarded in terms of the criminal law as a tariff sentence. It is a crime in which each incident has to be looked at simply upon its own facts. I should make one reference to the question of the involvement of any Nigerian or Israeli authorities. Dr Shapiro had the idea, mistaken though it may be, that what he was doing was supporting the Israeli Secret Service, but there is nothing in the evidence to suggest that his idea was a correct one. The prosecution did not put this case forward on the basis that the Nigerian authorities were involved in any way. In particular, one has to think of the 7 Cr App R (S) 404 Nigerian High Commission in London. It is not put forward by the prosecution on that basis, although there might have been times in the course of the interrogations of these four applicants when what they said might have had that kind of implication, but this court is not approaching this case as though the Nigerian Government or the High Commission in London were in any way involved. I would say at once that it would not make any difference to the appropriateness of the sentences if some other government were involved or not. We simply look upon what happened, who did what, what mitigating factors there may be which should be taken into account, and to see whether there was the approprite sentence imposed by the trial judge. There is no question here that the planning was extremely clever. It was a very carefully worked out kidnap. That is normally regarded as something which is an aggravating factor in kidnapping cases but, whether it is to be regarded as an aggravating factor or not, it certainly is not a mitigating factor, except in so far as in this case the planner went to Dr Shapiro to make sure that the medical side of things was carried out successfully without undue harm to Dr Dikko. The judge went through the individual parts played by the four applicants. He paid great attention to all the submissions in mitigation, as have we, he made a number of assumptions, which we accept, in favour of the four applicants and he finished by imposing the sentences which he did. The way in which he expresses himself at the end of the sentencing process is as follows: "At the end of the day kidnapping is in essence a serious offence. How serious will vary from case to case. The elements that exacerbate this particular case in my judgement are, first, that this was a most carefully planned operation. Secondly, Dr Dikko was seized on a public street in London and bundled into a van. Thirdly, inside the van his wrists were handcuffed, his feet were pinned together and he was gagged. Fourthly, he was rendered unconscious by drugs and so deeply that he did not regain full consciousness for 24 hours. Fifthly, he was put into a crate which was nailed, and the intention was that he should be put into an aircraft and flown to Nigeria. Sixthly, he was being forcibly abducted from the country where he had chosen and where he was being permitted to live to another country where for his own reasons he feared to be." He went on to say this: "It is alleged, as I have indicated, that he committed crimes in that country. If that be so there is a lawful process by which his extradition could be sought. It must be made absolutely clear that the courts in this country will take an extremely grave view of any attempt to abduct by force and take overseas against his will a person lawfully living in this country." It has been urged before us that, in so far as the sentences which were imposed contain an element of deterrence, this is not the kind of case where a deterrent effect is needed. Punishment, it is conceded, there must be but the need for deterrence is questioned on the part of the applicants. This Court profoundly disagrees. We were told that a case like this is unique. The Court thinks it must remain so. There are very many political refugees or exiles of one sort or another living in this country, refugees or exiles from countries whose governments indeed may change with some frequency or rapidity. People who come to live and settle in this country must be free from any threat or fear of being forcibly abducted and taken back to a place where there may be somebody who considers them to be severe and serious criminals. 7 Cr App R (S) 404 This Court has no view at all as to whether or not Dr Dikko is guilty of the offences in Nigeria which his enemies allege he is. All we know is that a very serious and bad attempt was made to remove him back to Nigeria in this way and the kind of kidnapping which was committed must be discouraged by the courts. There is an element in offences which is a little difficult sometimes to identify. In the present offence there is an element of what has been called and I can only describe as public affront. In the view of this Court, the method of trying to get Dr Dikko back was an affront to this country, to the rule of law and our sovereignty, which cannot for a moment be allowed. We have considered fully all the elements of mitigation which have been put before us so well by counsel today. We have considered each individual defendant carefully and separately.

DISPOSITION:

We have come to the conclusion that there is no basis for considering that any of the sentences which were imposed by McCowan J was in any way wrong and, accordingly, each of these applications is refused.