Bahrain to Argue at British Supreme Court Over Sovereign Immunity in Surveillance Allegations

The Bahraini government is preparing to claim before the UK's supreme court that it possesses sovereign immunity from accusations that it deployed spyware on the devices of two activists during their stay in the UK capital.

Legal Battle Background

The Gulf country has previously lost its sovereign immunity claim in the high court and appellate court. Taking the matter to the highest court highlights the importance of this issue for the nation's international reputation.

If Bahrain succeed, the decision could have wider implications for how authoritarian governments utilize digital spyware to monitor and possibly target political dissidents residing 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 standing to claim compensation despite Bahrain's immunity claim, rather than determining whether damages are applicable.

Allegations and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher spyware to infiltrate their electronic devices while they were residing in London, causing psychological harm. The appellate court last autumn supported a high court ruling that the 1978 immunity legislation does not provide Bahrain state protection against their allegations.

Article 5 of the act specifies that a country does not have immunity from claims for personal injury resulting from an action or inaction that occurred in the UK.

The decision will also provide clarity regarding other surveillance allegations being handled by law firms on behalf of affected individuals.

Technical Details

Legal representatives claimed that "FinSpy software can collect large quantities of data from infected devices, including recording all keyboard inputs, telephone conversations, messages, electronic mail, scheduling information, instant messaging, address books, browsing history, images, data collections, files and videos. It allows capture of real-time sound from the device's microphone and visual recording device."

Legal Interpretation

The appellate court determined that external control, overseas, of a electronic device situated in the UK constituted an act within the UK's jurisdiction. Although the cyber intrusion took place overseas, the effect was that the national jurisdiction of the UK had suffered interference.

A foreign state does not have protection for psychological harm resulting from an act in the United Kingdom, even if some acts take place overseas. The judicial body also determined that "personal injury" as defined in the immunity legislation encompassed standalone psychiatric injury.

Bahrain's Stance

The appeal court ruling noted that Bahrain rejected the claimants' allegations of compromising the dissidents' computers with spyware, but the high court judge "found, on the based on expert evidence, that the plaintiffs had discharged the burden upon them of proving on the balance of probabilities that their computers were infected by spyware by Bahraini representatives."

Claimants' Comments

Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the progress to date of the legal proceedings regarding the hacking of my electronic device. It delivers a clear message to foreign governments who pursue their non-violent critics with multiple methods including violating their personal affairs and equipment."

Mohammed, who left Bahrain in 2006 after facing frequent detention within the nation, stated: "This process has now reached the highest court in the land. I have a responsibility to reveal what I experienced when I believe Bahrain compromised my device. The effect has been profound – particularly for those who placed their trust in me, and for my loved ones."

"Abusive foreign states like Bahrain must be brought to justice for wrecking our lives. They cannot be permitted to use diplomatic immunity to advance their transnational repression on UK territory."

Both men have had their nationality withdrawn.

Attorney Commentary

A lead attorney commented: "This case raise fundamental questions about accountability for the deployment of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and many others we represent, have waited a considerable period for clarity on these matters."