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Bahrain is preparing to argue before the UK's supreme court that it enjoys sovereign immunity from accusations that it deployed surveillance software on the computers of two dissidents during their residence in the UK capital.

Court Proceedings Context

The Gulf country has been denied its sovereign immunity claim in both lower court and court of appeal. Bringing the matter to the highest court demonstrates the importance of this issue for the country's international reputation.

If Bahrain succeed, the decision could have broader consequences for how authoritarian governments employ digital spyware to monitor and potentially harass opposition figures residing in the UK.

Key Focus of Legal Proceedings

The supreme court hearing, scheduled to begin this midweek, will concentrate on whether the two men have the legal right to claim compensation despite Bahrain's immunity claim, rather than addressing whether damages are applicable.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed claim the Bahraini government used German-made FinFisher spyware to infiltrate their electronic devices while they were residing in London, causing psychological harm. The court of appeal last autumn upheld a high court ruling that the 1978 immunity legislation does not provide Bahrain sovereign immunity against their claims.

Article 5 of the act specifies that a state does not have protection from claims for physical or psychological harm resulting from an act or omission that occurred in the UK.

The decision will also provide clarity regarding additional spyware claims being pursued by legal teams on behalf of affected individuals.

Software Capabilities

Attorneys claimed that "The surveillance program can gather large quantities of data from infected devices, including recording all keyboard inputs, voice calls, messages, electronic mail, calendar records, instant messaging, contacts lists, browsing history, photos, databases, documents and videos. It allows capture of real-time sound from the device's microphone and camera."

Legal Interpretation

The appellate court found that external control, from abroad, of a computer located in the UK constituted an action within the British territory. Even if the cyber intrusion took place overseas, the consequence was that the territorial sovereignty of the UK had suffered interference.

A foreign state does not have immunity for personal injury caused by an action in the UK, although certain acts take place overseas. The judicial body also determined that "personal injury" as defined in the immunity legislation encompassed independent psychological damage.

Bahrain's Stance

The appeal court ruling noted that Bahrain rejected the claimants' allegations of infecting the activists' devices with surveillance software, but the high court judge "determined, on the based on expert evidence, that the plaintiffs had discharged the burden upon them of demonstrating on the preponderance of evidence that their devices were compromised by spyware by Bahraini representatives."

Plaintiffs' Statements

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

Mohammed, who left Bahrain in 2006 after experiencing repeated arrests within the nation, stated: "This process has now arrived at the supreme judicial body in the country. I have a responsibility to expose what I endured when I believe Bahrain hacked my computer. The effect has been profound – particularly for those who had confidence in me, and for my loved ones."

"Repressive governments like Bahrain must be brought to justice for wrecking our lives. They cannot be allowed to use diplomatic immunity to advance their transnational repression on British soil."

The two individuals have had their Bahraini citizenship withdrawn.

Attorney Commentary

A senior legal representative commented: "This case present essential issues about accountability for the deployment of invasive monitoring systems against civil society members and human rights defenders. Our represented individuals, and many others we advocate for, have anticipated a considerable period for resolution on these issues."