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The Bahraini government is set to argue before the UK's supreme court that it possesses sovereign immunity from accusations that it deployed surveillance software on the devices of two dissidents during their stay in London.

Legal Battle Background

The Gulf country has previously lost its sovereign immunity claim in both high court and court of appeal. Bringing the case to the supreme court highlights the significance of this issue for the nation's international reputation.

If Bahrain prevail, the decision could have wider consequences for how authoritarian states utilize digital spyware to track and potentially harass opposition figures residing in the UK.

Central Issue of Legal Proceedings

The supreme court hearing, starting this Wednesday, will focus on whether the two individuals have the standing to claim compensation 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 computers while they were living in London, resulting in psychological harm. The court of appeal last autumn upheld a high court ruling that the 1978 immunity legislation does not grant Bahrain state protection against their claims.

Article 5 of the legislation specifies that a state does not have protection from legal actions for physical or psychological harm caused by an act or omission that occurred in the UK.

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

Technical Details

Legal representatives claimed that "The surveillance program can gather vast amounts of information from compromised equipment, including capturing every keystroke, telephone conversations, messages, emails, scheduling information, real-time chats, contacts lists, internet activity, images, databases, files and recordings. It allows capture of real-time sound from the device's microphone and visual recording device."

Judicial Analysis

The appellate court determined that external control, overseas, of a electronic device situated in the UK represented an act within the British territory. Even if the hacking occurred abroad, the consequence was that the territorial sovereignty of the UK had been violated.

A foreign state does not have protection for psychological harm caused by an act in the UK, although certain activities take place overseas. The court also ruled that "personal injury" as interpreted in the immunity legislation encompassed standalone psychiatric injury.

Defense Position

The appellate decision noted that Bahrain denied the claimants' allegations of compromising the activists' devices with spyware, but the high court judge "determined, on the basis of specialist testimony, that the claimants had discharged the responsibility upon them of proving on the balance of probabilities that their computers were infected by spyware by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a co-founder of the opposition group al-Wefaq, welcomed with the supreme court hearing, saying: "I am pleased with the progress to date of the court case regarding the hacking of my computer. It delivers a strong signal to overseas authorities who target their non-violent critics with multiple methods including violating their personal affairs and equipment."

Mohammed, who fled Bahrain in 2006 after facing repeated arrests within the country, stated: "This process has now reached the highest court in the land. I have a responsibility to expose what I experienced when I believe Bahrain compromised my device. The effect 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 destroying our lives. They cannot be allowed to use diplomatic immunity to advance their cross-border persecution on UK territory."

The two individuals have had their nationality revoked.

Attorney Commentary

A lead attorney commented: "This case raise essential issues about responsibility for the deployment of invasive monitoring systems against civil society members and human rights defenders. Our clients, and numerous additional people we advocate for, have anticipated a long time for resolution on these issues."