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

Legal Battle Context

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

If Bahrain succeed, the ruling could have wider implications for how authoritarian states employ surveillance technology to monitor and possibly target opposition figures living in the United Kingdom.

Central Issue of Legal Proceedings

The legal proceedings, starting this midweek, will concentrate on whether the two men have the standing to seek damages despite Bahrain's immunity claim, rather than addressing whether compensation is warranted.

Claims and Proof

Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used German-made FinFisher spyware to infiltrate their electronic devices while they were residing in London, resulting in emotional distress. The appellate court last autumn supported a previous court decision that the 1978 immunity legislation does not provide Bahrain state protection against their allegations.

Article 5 of the act states that a state does not have immunity from legal actions for physical or psychological harm caused by an action or inaction that took place in the UK.

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

Technical Details

Attorneys claimed that "The surveillance program can gather large quantities of data from infected devices, including capturing all keyboard inputs, telephone conversations, text communications, emails, scheduling information, real-time chats, contacts lists, internet activity, photos, data collections, documents and recordings. It enables capture of real-time sound from the device's microphone and visual recording device."

Legal Interpretation

The court of appeal found that remote manipulation, from abroad, of a computer situated in the UK constituted an act within the UK's jurisdiction. Even if the cyber intrusion took place overseas, the effect was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have protection for psychological harm resulting from an act in the United Kingdom, although some activities take place overseas. The judicial body also ruled that "personal injury" as interpreted in the state immunity act included standalone psychiatric injury.

Defense Position

The appeal court ruling stated that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with surveillance software, but the high court judge "determined, on the basis of expert evidence, that the claimants had met the burden upon them of proving on the balance of probabilities that their devices were compromised by spyware by Bahrain's servants or agents."

Claimants' Comments

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, saying: "I'm satisfied with the outcome so far of the legal proceedings regarding the hacking of my electronic device. It delivers a clear message to foreign governments who pursue their peaceful political opponents with various means including violating their private lives and devices."

Mohammed, who left Bahrain in 2006 after facing frequent detention within the country, stated: "Our journey has now reached the supreme judicial body in the country. I have a duty to expose what I experienced when I believe Bahrain hacked my computer. The effect has been devastating – especially for those who had confidence in me, and for my friends and family."

"Abusive foreign states like Bahrain must be held accountable for wrecking our lives. They cannot be permitted to use state protection to pursue their cross-border persecution on UK territory."

The two individuals have had their Bahraini citizenship revoked.

Legal Perspective

A senior legal representative stated: "These proceedings present essential issues about accountability for the use of invasive monitoring systems against civil society members and members of civil society. Our represented individuals, and numerous additional people we represent, have anticipated a long time for resolution on these matters."