The UK’s Crown Prosecution Service must be “brave” and set a legal precedent by taking on the case of a British citizen who has accused a senior gulf royal of sexual assault, says one of the UK’s leading lawyers.
Helena Kennedy, QC, is assisting Caitlin McNamara, who was the curator of the first Hay festival in Abu Dhabi in February. On Sunday, the 32-year-old waived her anonymity to accuse Sheikh Nahyan bin Mubarak Al Nahyan, the UAE’s minister of tolerance and a senior figure in Abu Dhabi’s ruling family, of attacking her days before the festival, which was funded by his department. The 69-year-old royal has denied the allegations through a lawyer in London, who said: “Our client is surprised and saddened by this allegation, which arrives eight months after the alleged incident and via a national newspaper. The account is denied.” The UAE’s foreign ministry has declined to comment on the case.
Lawyers acting for McNamara have submitted an opinion to the CPS that Nahyan could be tried under “universal jurisdiction” for cruel and inhuman treatment. Universal jurisdiction allows states to try foreign-born defendants for crimes committed abroad. It is currently being applied in Germany to cases involving Islamic State members accused of crimes against Yazidi women and children.
There is no precedent for an individual rape case being prosecuted in this way, so McNamara’s lawyers are arguing that her case qualifies as cruel and inhuman treatment.
“International law is written by men, so is it any wonder that it doesn’t deliver for women?” Lady Kennedy said. “Gender-based violence, sexual violence, this is the stuff women suffer and it is rarely included in international law, because women are not at the tables when those laws are made. Do you think if a man went to a business meeting and someone assaulted him, we’d be debating what should be done? You’ll get all sorts of international male lawyers who will say, ‘Oh no, that doesn’t fit the definition of inhuman treatment.’ Well, maybe we should be re-examining the definition.”
The CPS had been expected to deliver its decision on McNamara’s case in September, but it has yet to respond.
“They’ve been dealing with it nearly three months now and the question is: what is going on?” said Kennedy. “I hope that they are courageous enough to do it, because I suspect there will be political pressure. The UAE is a valued ally and trading partner.”
McNamara alleges that on 14 February, she was invited to an evening meeting with the sheikh, which she thought would be an opportunity to discuss the festival. Instead, she was taken to a villa on a private island, where her phone was taken from her and Nahyan allegedly sexually assaulted her. She reported her allegation to embassy and festival staff immediately, then to UK police in July.
The CPS must set a precedent for sexual assault cases under international law, Kennedy added.
“You only change things by pressing the law hard. That’s how we’ve made the difference on so many laws applying to women. When I started at the bar, a woman battered by her husband could only get an injunction against him by starting a civil action against him, suing him for assault. That was changed over time,” she said.
Last month, a women’s rights group launched a legal challenge against the CPS over its failure to pursue rape cases. Last week, the CPS announced it was revamping its guidance to prosecutors in rape cases, including a more generous understanding of how trauma affects victims. Rape convictions in England and Wales have fallen to a record low.
Kennedy said it would have been impossible for McNamara to pursue a case against Nahyan in the UAE, due to the illegality of insulting or defaming royal family members.
“No law firm in the UAE would act for her against the royals. They are all-powerful. They are the law. She has no recourse to justice there – so, does she here?” she said. “Britain should be taking a lead on these cases, holding even heads of state accountable. We want the CPS to be brave enough and see that women do not get justice when these things happen in these places. International law should apply even if you are a head of state.”
If the CPS declines to pursue the case, Kennedy said she would petition UK foreign secretary Dominic Raab to invoke the “Magnitsky law”, which allows governments to place sanctions against foreign individuals accused of committing human rights abuses. Nahyan, part of the fourth-richest royal family in the world, is believed to own property in north-west London.
Raab has previously described the UAE as a “true friend and valued partner of the UK”.
“It’s not good enough to say ‘Sorry love, it happened over there, so that’s it’,” Kennedy said.