Bahrain to Argue at UK Highest Court Over Sovereign Immunity in Spyware Allegations

The Bahraini government is preparing to argue before the Britain's highest judicial body that it enjoys sovereign immunity from allegations that it deployed surveillance software on the devices of two activists during their stay in the UK capital.

Court Proceedings Context

The Gulf country has been denied its immunity argument in the high court and court of appeal. Bringing the matter to the highest court highlights the significance of this matter for the nation's international reputation.

Should Bahrain succeed, the decision could have wider consequences for how authoritarian governments employ digital spyware to track and potentially harass opposition figures living in the UK.

Central Issue of Supreme Court Hearing

The supreme court hearing, scheduled to begin this midweek, will concentrate on whether the two men have the legal right to claim damages despite Bahrain's sovereign immunity argument, rather than determining whether compensation is warranted.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used Germany-produced FinFisher spyware to infiltrate their computers while they were residing in London, causing emotional distress. 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 claims.

Article 5 of the act states that a country does not have immunity from claims for physical or psychological harm caused by an action or inaction that occurred in the United Kingdom.

The decision will also offer guidance regarding additional spyware claims being pursued by legal teams on behalf of clients.

Technical Details

Attorneys claimed that "FinSpy software can gather large quantities of information from infected devices, including capturing all keyboard inputs, voice calls, messages, emails, scheduling information, real-time chats, address books, browsing history, photos, databases, files and recordings. It allows capture of live audio from the device's microphone and visual recording device."

Judicial Analysis

The court of appeal determined that external control, from abroad, of a electronic device located in the UK constituted an action within the UK's jurisdiction. Although the cyber intrusion occurred abroad, the effect was that the territorial sovereignty of the United Kingdom had suffered interference.

A foreign state does not have immunity for psychological harm resulting from an action in the United Kingdom, although certain activities take place abroad. The judicial body also determined that "personal injury" as defined in the state immunity act encompassed standalone psychiatric injury.

Defense Position

The appellate decision stated that Bahrain denied the accusers' claims of infecting the dissidents' computers with spyware, but the high court judge "determined, on the basis of specialist testimony, that the plaintiffs had met the responsibility upon them of demonstrating on the balance of probabilities that their devices were compromised by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the supreme court hearing, saying: "I am pleased with the outcome so far of the court case regarding the hacking of my electronic device. It sends a strong signal to overseas authorities who target their non-violent critics with multiple methods including intruding into their personal affairs and devices."

Mohammed, who left Bahrain in 2006 after experiencing repeated arrests within the nation, commented: "Our journey has now reached the supreme judicial body in the land. I have a responsibility to expose what I experienced when I believe Bahrain compromised my device. The impact has been profound – particularly for those who had confidence in me, and for my loved ones."

"Abusive foreign states like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use diplomatic immunity to advance their cross-border persecution on British soil."

Both men have had their nationality revoked.

Legal Perspective

A senior legal representative stated: "These proceedings present essential issues about accountability for the deployment of invasive monitoring systems against civil society members and members of civil society. Our clients, and many others we advocate for, have anticipated a considerable period for resolution on these matters."