Bahrain to Argue at UK Highest Court Over Sovereign Immunity in Surveillance Claims

The Bahraini government is set to argue before the Britain's highest judicial body that it enjoys sovereign immunity from accusations that it deployed surveillance software on the computers of two dissidents during their residence in London.

Court Proceedings Background

Bahrain has previously lost its immunity argument in both lower court and appellate court. Bringing the matter to the supreme court highlights the significance of this matter for the country's international reputation.

Should Bahrain succeed, the ruling could have broader consequences for how authoritarian states utilize digital spyware to track and potentially harass opposition figures residing in the United Kingdom.

Key Focus of Supreme Court Hearing

The supreme court hearing, scheduled to begin this midweek, will concentrate on whether the two individuals have the standing to claim damages despite Bahrain's sovereign immunity argument, rather than addressing whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed claim the Bahrain authorities used Germany-produced FinFisher surveillance software to compromise their electronic devices while they were residing in London, causing psychological harm. The court of appeal last October supported a previous court decision that the State Immunity Act 1978 does not provide Bahrain state protection against their allegations.

Section 5 of the act specifies that a state does not have protection from claims for physical or psychological harm resulting from an act or omission that took place in the United Kingdom.

The ruling will also provide clarity regarding additional spyware claims being handled by legal teams on behalf of clients.

Software Capabilities

Legal representatives stated that "The surveillance program can gather large quantities of information from compromised equipment, including recording every keystroke, telephone conversations, messages, electronic mail, scheduling information, instant messaging, contacts lists, internet activity, images, data collections, files and videos. It enables capture of real-time sound from the equipment's audio input and camera."

Legal Interpretation

The court of appeal determined that external control, from abroad, of a computer situated in the United Kingdom represented an action within the UK's jurisdiction. Even if the hacking took place overseas, the consequence was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have immunity for psychological harm caused by an action in the United Kingdom, even if some acts occur overseas. The court also determined that "psychological harm" as defined in the state immunity act encompassed independent psychological damage.

Bahrain's Stance

The appeal court ruling stated that Bahrain rejected the accusers' claims of compromising the activists' devices with surveillance software, but the high court judge "found, on the basis of expert evidence, that the claimants had met the responsibility upon them of demonstrating on the balance of probabilities that their computers were compromised by malicious software by Bahraini representatives."

Claimants' Comments

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the outcome so far of the legal proceedings regarding the cyber intrusion of my computer. It delivers a clear message to foreign governments who target their non-violent critics with various means including violating their private lives and equipment."

Mohammed, who fled Bahrain in 2006 after experiencing frequent detention within the country, stated: "This process has now reached the highest court in the country. I have a duty to reveal what I experienced when I am convinced Bahrain hacked my device. The impact has been devastating – particularly for those who placed their trust in me, and for my friends and family."

"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to hide behind diplomatic immunity to pursue their transnational repression on British soil."

Both men have had their nationality withdrawn.

Legal Perspective

A lead attorney commented: "This case raise fundamental questions about responsibility for the use of intrusive surveillance technology against civil society members and human rights defenders. Our represented individuals, and many others we represent, have anticipated a considerable period for resolution on these matters."