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The Bahraini government is set to claim before the UK's supreme court that it enjoys sovereign immunity from allegations that it installed spyware on the computers of two dissidents during their stay in the UK capital.

Legal Battle Context

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

Should Bahrain prevail, the decision could have wider consequences for how authoritarian states utilize surveillance technology to track and possibly target opposition figures residing in the UK.

Key Focus of Supreme Court Hearing

The supreme court hearing, starting this Wednesday, will focus on whether the two individuals have the legal right to claim damages despite Bahrain's sovereign immunity argument, rather than determining whether damages are applicable.

Claims and Evidence

Dr Saeed Shehabi and Moosa Mohammed allege the Bahraini government used German-made FinFisher surveillance software to infiltrate their electronic devices while they were residing in London, causing emotional distress. The appellate court last autumn upheld a high court ruling that the State Immunity Act 1978 does not grant Bahrain state protection against their allegations.

Section 5 of the legislation specifies that a state does not have immunity from legal actions for physical or psychological harm caused by an action or inaction that occurred in the United Kingdom.

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 "The surveillance program can gather vast amounts of data from compromised equipment, including capturing every keystroke, telephone conversations, text communications, emails, scheduling information, real-time chats, contacts lists, browsing history, photos, databases, files and recordings. It enables recording of live audio from the equipment's audio input and visual recording device."

Legal Interpretation

The court of appeal found that external control, overseas, of a electronic device located in the UK represented an act within the UK's jurisdiction. Even if the cyber intrusion occurred abroad, the effect 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 some activities occur overseas. The judicial body also determined that "personal injury" as defined in the immunity legislation included independent psychological damage.

Bahrain's Stance

The appeal court ruling noted that Bahrain rejected the claimants' allegations of infecting the dissidents' computers with spyware, but the high court judge "determined, on the basis of specialist testimony, that the claimants had met the responsibility upon them of demonstrating on the balance of probabilities that their computers were infected by malicious software by Bahraini representatives."

Plaintiffs' Statements

Shehabi, a co-founder of the opposition group al-Wefaq, expressed satisfaction with the legal proceedings, stating: "I am pleased with the progress to date of the court case regarding the cyber intrusion of my electronic device. It sends a strong signal to foreign governments who pursue their non-violent critics with various means including violating their private lives and devices."

Mohammed, who left 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 duty to reveal what I experienced when I believe Bahrain hacked my device. The impact has been devastating – especially for those who placed their trust in me, and for my friends and family."

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

The two individuals have had their nationality withdrawn.

Legal Perspective

A senior legal representative stated: "These proceedings present fundamental questions about responsibility for the use of intrusive surveillance technology against political activists and human rights defenders. Our clients, and many others we represent, have anticipated a considerable period for resolution on these issues."