Bahrain is set to claim before the UK's supreme court that it enjoys sovereign immunity from allegations that it installed spyware on the devices of two dissidents during their stay in the UK capital.
Bahrain has previously lost its immunity argument in both high court and appellate court. Taking the matter to the supreme court demonstrates the importance of this matter for the nation's global standing.
If Bahrain succeed, the ruling could have wider implications for how authoritarian governments employ digital spyware to monitor and potentially harass political dissidents living in the UK.
The legal proceedings, starting this Wednesday, will concentrate on whether the two individuals have the standing to seek compensation despite Bahrain's immunity claim, rather than addressing whether compensation is warranted.
Dr Saeed Shehabi and Moosa Mohammed allege the Bahrain authorities used Germany-produced FinFisher surveillance software to infiltrate their electronic devices while they were living in London, resulting in psychological harm. The court of appeal last October supported a previous court decision that the State Immunity Act 1978 does not provide Bahrain state protection against their allegations.
Article 5 of the legislation states that a state does not have immunity from claims 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 surveillance allegations being handled by law firms on behalf of clients.
Attorneys claimed that "The surveillance program can gather vast amounts of information from compromised equipment, including recording every keystroke, voice calls, messages, electronic mail, calendar records, real-time chats, address books, internet activity, images, data collections, files and recordings. It allows recording of real-time sound from the device's microphone and camera."
The court of appeal determined that remote manipulation, overseas, of a electronic device located in the UK constituted an action within the UK's jurisdiction. Even if the hacking took place overseas, the effect was that the national jurisdiction of the UK had suffered interference.
A foreign state does not have protection for psychological harm caused by an action in the UK, although certain activities take place abroad. The court also determined that "personal injury" as interpreted in the immunity legislation encompassed standalone psychiatric injury.
The appellate decision stated that Bahrain denied the claimants' allegations of infecting the activists' devices with surveillance software, but the initial court justice "found, on the basis of specialist testimony, that the claimants had discharged the burden upon them of demonstrating on the preponderance of evidence that their devices were infected by spyware by Bahrain's servants or agents."
Shehabi, a co-founder of the dissident party al-Wefaq, expressed satisfaction with the supreme court hearing, stating: "I'm satisfied with the progress to date of the court case regarding the cyber intrusion of my computer. It sends a strong signal to foreign governments who target their peaceful political opponents with multiple methods including violating their private lives and equipment."
Mohammed, who left Bahrain in 2006 after facing frequent detention within the nation, commented: "Our journey has now reached the supreme judicial body in the country. I have a duty to reveal what I endured when I believe Bahrain hacked my device. The effect has been profound – especially for those who placed their trust in me, and for my friends and family."
"Abusive foreign states like Bahrain must be brought to justice for destroying our lives. They cannot be permitted to hide behind diplomatic immunity to advance their cross-border persecution on UK territory."
Both men have had their nationality revoked.
A senior legal representative commented: "These proceedings present fundamental questions about responsibility for the use of intrusive surveillance technology against civil society members and members of civil society. Our clients, and many others we represent, have waited a considerable period for resolution on these matters."
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