Bahrain to argue at UK supreme court it has immunity from surveillance claims

Bahrain is to tell the UK’s supreme court that it enjoys sovereign immunity from claims it placed surveillance software on the computers of two dissidents when they were living in London.

The Gulf country has lost the sovereign immunity claim both in the high court and court of appeal, and a decision to take the case further to the supreme court shows how important it is to the country’s reputation.

If Bahrain was to win, the ruling would have wider implications for how authoritarian countries use digital spyware to monitor and potentially harass political dissidents living in the UK.

The supreme court hearing, beginning on Wednesday, will be focused on whether the two men have the right to claim damages due to Bahrain’s claim of immunity, and not on whether damages are applicable.

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher surveillance software to infiltrate their computers while they were living in London, resulting in psychological harm. The court of appeal in October last year upheld a high court ruling that the State Immunity Act 1978 does not give Bahrain sovereign immunity against their claims.

Section 5 of the act provides that a state does not have immunity from claims for personal injury caused by an act or omission that happened in the UK. The ruling will also provide clarity in relation to other spyware claims being brought on behalf of clients by the international team at the law firm Leigh Day.

Shehabi and Mohammed allege that their laptops were infected at some point in September 2011 with malicious surveillance software. They believe the infection was carried out, directed, authorised or caused by the Bahraini government or its agents.

In a statement, Leigh Day claimed that “FinSpy software can collect vast amounts of data from the devices it infects, including recording every keystroke, voice calls, messages, emails, calendar records, instant messaging, contacts lists, browsing history, photos, databases, documents and videos. It allows recording of live audio from the device’s microphone and camera.”

The court of appeal found that the remote manipulation, from abroad, of a computer located in the UK constituted an act within the UK. Even if the hacking occurred abroad, the effect was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have immunity for personal injury caused by an act in the UK, even if some of the acts take place abroad. The court also ruled that “personal injury” as defined in the state immunity act included standalone psychiatric injury.

The appeal court ruling stated Bahrain denied the claimants’ allegations of infecting the dissident’s computers with spyware, but the high court judge “found, on the basis of expert evidence, that the claimants had discharged the burden upon them of proving on the balance of probabilities that their computers were infected by spyware by Bahrain’s servants or agents”. The validity of this finding could be challenged at a full trial of the allegations, if the supreme court rules Bahrain does not have immunity.

Shehabi, a founder of the dissident party al-Wefaq. welcomed the supreme court hearing, saying: “I am pleased with the outcome so far of the court case in regards to the hacking of my computer. It sends a clear message to foreign governments who pursue their peaceful political opponents with various means including intruding into their private lives and equipment.”

Both men have had their Bahraini citizenship revoked.

Ida Aduwa, a senior associate solicitor at l Leigh Day, said: “This case raises fundamental questions about accountability for the use of intrusive surveillance technology against political activists and members of civil society. Our clients, and many others we represent, have waited a long time for clarity on these issues.”