Money can buy the world’s best jockeys, trainers and racehorses.
As the judgment of the President of the Family Division in Re Al M revealed on Thursday, it can buy kidnappers who can be relied upon for their expertise and discretion when it comes to snatching one’s teenage daughter off the streets of Cambridge and flying her off to Dubai.
It can buy pirates who can kidnap your other daughter from a yacht in the Indian Ocean.
It can buy hundreds of malicious articles in the world’s press designed to “destabilise and harm” your ex-wife.
Sheikh Mohammed Rashid Al Maktoum, the Emir of Dubai, may have hoped that it could also buy him justice.
His decision to commence litigation against his wife now looks like one of the most foolish legal miscalculations since Jonathan Aitken promised to “cut out the cancer of bent and twisted and bitter journalism with the simple sword of truth and the trusty shield of British fair play.”
In April 2019 the Emir’s wife, Princess Haya bint Al Hussein, daughter of the late King Hussein of Jordan, travelled to England with their two youngest children, Jalila, 12 and Zayed, 7. She told him that they would not be returning to Dubai.
Sheikh Mohammed instructed a legal team, which ultimately included at least 7 QCs led by Lord Pannick QC, 4 junior counsel and two separate firms of solicitors, to issue proceedings demanding the children’s immediate return. It was an extraordinary array of legal talent but, as the judgments made public on Thursday showed, it was not enough to sway the President of the Family Division or the Court of Appeal, and, it was not enough to buy the privacy for which he also argued.
Initially Princess Haya’s response was to argue that she was protected by diplomatic immunity; shortly after her arrival in Britain she had been appointed First Secretary at the Jordanian Embassy in London. But after a few weeks she abandoned that claim, and issued her own proceedings asking for the children to be made Wards of Court. In addition, she asked for a forced marriage protection order in respect of Jalila. Sheikh Mohammed, she said, planned to force the 12 year old to marry the blood-stained Crown Prince of Saudi Arabia, Mohammed bin Salman bin Abdulaziz Al Saud.
His lawyers seem to have done as good a job as possible of making bricks without straw. At one stage, perhaps horrified at the can of noxious writhing worms that the litigation threatened to open up, Lord Pannick suggested that (with the exception of the forced marriage and one other relatively minor allegation) the court should proceed on the assumption that Princess Haya’s allegations were true, though without making any formal finding to that effect. He largely conceded that the court should make the order that she then sought, permitting the children to remain in England. In the light of this concession, Lord Pannick submitted, to embark upon an investigation into Princess Haya’s allegations would be “disproportionate.” Had the judge been willing to take up Lord Pannick’s suggestion the damage to Sheikh Mohammed’s reputation might have been greatly limited. However he was not. He decided that it was necessary to proceed to a full fact-finding hearing.
The Sheikh haughtily refused to submit himself for cross-examination, and gave instructions that his stellar legal team should make a few preliminary submissions and then take no part in the hearing. This unusual forensic technique was described by the Judge:
“On his instruction, his substantial and eminent legal team have, following helpful preliminary submissions as to the process, withdrawn from the courtroom. They have maintained a “watching brief” by means of a single note-taker who has been able to observe the proceedings within the courtroom and they have been following a feed of the “Live-Note” transcription at a remote room in the court building.”
There are some advocates who would serve their clients better by this minimalist approach than by actually opening their mouths, but that was certainly not so here. (Many barristers would also be happy to conduct their trials from the comfort of a well-appointed room under strict instructions to do absolutely nothing at all, especially if a billionaire is paying the refreshers).
The Sheikh’s thinking seems to have been to refuse to engage on every factual issue so that if the worst happened, as it did, the adverse findings could be dismissed. And that is exactly what has happened. In a statement issued after the judgment was made public Sheikh Mohammed said:
“As a Head of Government, I was not able to participate in the court’s fact-finding process, this has resulted in the release of a ‘fact-finding’ judgment which inevitably tells only one side of the story,”
In fact, the Sheikh had been perfectly able to participate, and indeed did so to the extent of filing statements. It was his own decision to instruct his legal team not to participate beyond that, and his own decision not to submit himself to cross-examination. The argument that his position as a Head of Government made it impossible for him to play any part in the fact finding trial is particularly unconvincing, given that he himself had issued the proceedings which led to the fact finding hearing taking place.
Sir Andrew McFarlane’s judgment is devastating, implying that the Sheikh is guilty of:
“behaviour which is contrary to the criminal law of England and Wales, international law, international maritime law, and internationally accepted human rights norms.”
The judge’s fair-minded refusal to find every single allegation proved makes his adverse findings all the more deadly.
He did not accept, for example, that the allegation of a plan to force Jalila to marry Crown Prince MbS was proven.
Likewise, whilst quite satisfied that Shamsa was abducted from England and flown to Dubai by Al Maktoum’s henchmen, he was unable to find “on the balance of probabilities” that her kidnappers were armed as she had said they were: likewise, he found “the evidence is insufficient to find as a fact that she was injected or otherwise chemically subdued as she alleges.” There was though “no evidence to the contrary.”
As for Latifa’s abduction from a yacht in international waters off Goa, which Al Maktoum admitted he had arranged, the Judge heard evidence from her friend Tiina Jauhiainen (“TJ”) as to what happened. During the night the Nostromo was boarded by Indian special forces:
“Smoke grenades or gas, together with gunshots soon led to the crew and passengers being subdued. TJ describes being totally terrified and “frightened to death”. At one stage, after TJ had been dragged to the deck with her hands tied behind her back, she saw Latifa lying face down on the floor with her hands similarly bound. TJ says that the Indian servicemen kept shouting “who is Latifa” over and over again. After some time an Arabic man was brought onboard who identified Latifa. Latifa was shouting that she claimed asylum and that the Indian forces were breaking international law. She was, said TJ, simply ignored. TJ’s statement with respect to this stage concludes:“Latifa’s last words that I heard as she was dragged away kicking and screaming were words to the effect that “You can’t get me back alive. Don’t take me back. Shoot me here don’t take me back” in English.”
The Emir’s written explanation – again of course unsworn and untested by cross-examination – was short. He admitted his involvement but described the events as a “rescue mission.”
“I can confirm that we had reason to believe that Latifa had been manipulated over a long period of time by a man called Herve Jaubert (a Frenchman now based, I believe, in Manila), and possibly by others too. Sadly it seems that Mr Jaubert’s objective was to extort money. Certainly a financial demand was made to us. We feared that our daughter was in the hands of a criminal who might hold her to ransom and harm her. To this day I consider that Latifa’s return to Dubai was a rescue mission.”
This was rejected by the Judge who heard TJ give sworn evidence, and saw a secretly recorded video made by Latifa shortly before she fled Dubai. He concluded:
“The final words that TJ heard Latifa shouting say a great deal. She was pleading for the soldiers to kill her rather than face the prospect of going back to her family in Dubai. Drawing these matters together I conclude, on the balance of probability, that Latifa’s account of her motives for wishing to leave Dubai represents the truth. She was plainly desperate to extricate herself from her family and prepared to undertake a dangerous mission in order to do so.”
There was then clear evidence that both daughters had been held in Dubai against their will.
Shamsa had in fact contacted a solicitor in England before she was kidnapped. After she had been returned to Dubai she was able to send him an email asking him to alert the authorities. He is identified in the judgment only as ” “:
“I was caught on the 19th August, in Cambridge. He sent four Arab men to catch me, they were carrying guns and threatening me, they drove me to my father’s place in Newmarket, there they gave me two injections and a handful of tablets, the very next morning a helicopter came and flew me to the plane, which took me back to Dubai. I am locked up until today, ‘ ’, I haven’t seen anyone, not even the man you call my father. I told you this would happen, ‘ ’, I know these people, they have all the money, they have all the power, they think they can do anything. You said that if he kidnapped me, you would contact the Home Office and involve them. Now, I am not only asking you to report this immediately, I am asking your help and to involve the authorities (involve everyone).”
In March 2001, 7 months after she was kidnapped and returned to Dubai, Shamsa managed to telephone a Detective Chief Inspector Beck in the Cambridgeshire Police. She told him what had happened. Beck made some inquiries in Cambridge and Newmarket which corroborated her account. He then asked the CPS for permission to travel to Dubai to speak to potential witnesses. It was refused. It seems highly plausible that the reason the CPS refused permission was that they had been told to do so by the Foreign Office. Princess Haya asked the judge to make an express finding that “the father or those acting on his behalf made representations to the United Kingdom authorities designed to bring an end to the investigation.” The Foreign Office responded to a request for information in a predictable way:
“releasing information on this issue would increase public knowledge about our relations with UAE … Disclosure of this information would reduce the UK government’s ability to protect and promote UK interests through its relations with UAE which would not be in the public interest.”
The judge found that – with the exception of the detail that the men who kidnapped Shamsa were armed- that her account was true. He did not go on to find that the police inquiry was halted by the direct intervention of the Foreign Office:
“it is not possible to find on the balance of probability that permission for Mr Beck to visit Dubai was refused because of the direct intervention of the FCO, nor, moving further still from the basic known facts, that any intervention by the FCO had been triggered by the father or the Government of Dubai.”
Sheikh Mohammed is Vice-President of the UAE, Prime Minister (Head of Government) of the UAE and Ruler of the Emirate of Dubai. As such he is, protected by various sovereign or diplomatic immunities.
It is not impossible, indeed it seems quite probable, that Cambridgeshire Police might already – even without being able to obtain a formal statement from Shamsa or Latifa – have sufficient evidence to justify his arrest and interview under caution. Were he not so protected his next trip to Newmarket could be marred by his arrest on suspicion of a number of extremely serious offences including conspiracy to kidnap Shamsa, and piracy in relation to Latifa’s abduction off the coast of India.
It makes no difference, incidentally, that the potential piracy offence was committed in international waters and did not involve a British citizen. Since the sixteenth century British courts have exercised jurisdiction over acts of piracy on the “high seas” anywhere in the world. Indeed, so seriously was piracy taken as a crime that until 1998 piracy with violence, contrary to S.2 of the Piracy Act 1837, was punishable by death. The section itself remains in force and applies to any act of piracy in which a person is assaulted “with intent to murder,” which does not apply in this case, but also any unlawful act” by which the life of a person on board “may be endangered.”
However, even if there was no danger to the life of anyone on board the Nostromo, the boarding of the ship and the seizure of Latifa from it would still potentially appear to fall within the definition of piracy contained in Article 101 of the UN Convention on the Law of the Sea.
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
There is perhaps scope for argument over whether the undoubted “act of violence” in seizing Latifa was committed “for private ends,” and it is unclear to what extent Indian security forces were involved. The law of piracy only applies if the act of violence etc is committed by the crew of a “private ship.”
Just like the law of piracy, questions of diplomatic and sovereign immunity are not always entirely straightforward, as General Pinochet discovered, but it seems unlikely that Sheikh Mohammed will ever face a criminal court over his treatment of his daughters, or indeed the harassment of his wife.
His only punishment so far has been to hear that The Queen will no longer allow herself to be photographed with him. The snub may offend, but it is not as bad as serving the double figure gaol sentence that he would receive for kidnap and piracy.
There is also the possibility that the British Horseracing Authority might wish to take action against the Emir. Anyone registering to own racehorses in Britain is required to demonstrate that they are a “fit and proper person” to own racehorses. Relevant considerations “include the applicant’s honesty and integrity and financial soundness.” There are certainly no concerns over the Sheikhs financial soundness, but one of the specific criteria to which the BHA says it will have regard is whether a potential owner “has been the subject of any adverse finding by a judge in any civil proceedings.” A ban would no doubt hit Sheikh Mohammed hard, but it would hit British horse-racing even harder. For that reason one suspects that the BHA will try to avoid making a decision. Fortunately for both, although the “honesty and integrity” criteria apply to prospective owners, it is not crystal clear that they apply to those who have already registered. It is not a particularly good look that one of the the country’s biggest racehorse owners is now strongly suspected of being a kidnapper and a pirate, but a great many people’s livelihoods will depend on the BHA finding some way to accommodate that awkward reality.
Given all these legal imponderables, whilst the Emir might no longer need 7 QCs, he ought perhaps to keep one or two available on a retainer. If interesting questions on the law of sovereign immunity, piracy or horse-racing discipline need to be taken to the Supreme Court, Lord Pannick, whose recent form in the Supreme Court is 1-1, would be ideally placed to represent his interests.