Court of Appeal rules that two Bahraini dissidents can bring FinFisher spyware claims against the Kingdom of Bahrain in the UK
In a judgment handed down today, 4 October 2024, the Court of Appeal has dismissed the Kingdom of Bahrain’s appeal and upheld a High Court ruling that the Kingdom of Bahrain is not afforded sovereign immunity under the State Immunity Act 1978 in respect to its alleged use of FinFisher surveillance software to infiltrate the computers of two Bahraini dissidents.
Posted on 04 October 2024
At a High Court hearing in February 2022, the Kingdom of Bahrain had argued several points. First, it claimed that it is immune from the jurisdiction of the Courts of England and Wales. Second, it asserted that the claimants’ application for permission to serve out of the jurisdiction and on the Kingdom of Bahrain should be set aside. Lastly, Bahrain argued that the High Court does not have jurisdiction to hear the claims and that the claims should be dismissed. Mr Justice Julian Knowles rejected all of the Kingdom of Bahrain’s arguments. However, the Kingdom appealed the High Court’s ruling, and the Court of Appeal heard the case on 29 and 30 July 2024.
In the judgment handed down today, the Court of Appeal ruled each of the points raised by the Kingdom of Bahrain in the claimants’ favour. In summary:
- The remote manipulation, from abroad, of a computer located in the United Kingdom is an act within the United Kingdom.
- A foreign state does not have immunity for personal injury caused by an act in the United Kingdom, even if other causative acts take place abroad.
- Personal injury under s.5 of the State Immunity Act 1978 includes standalone psychiatric injury.
The two claimants, Dr Shehabi and Mr Mohammed have been engaged in political activism to highlight and condemn human rights abuses in Bahrain for a number of years.
The claimants say that their laptops were infected at some point in September 2011 by malicious surveillance software, known as FinSpy, a FinFisher product made by the Gamma group. The dissidents believe that the infection was carried out, directed, authorised or caused by the Bahraini government or its agents.
FinSpy software can collect vast amounts of data from the devices it infects, including recording every keystroke, voice calls, messages, emails, calendar records, instant messaging, contacts lists, browsing history, photos, databases, documents and videos. It allows recording of live audio from the device’s microphone and from the camera.
Dr Saeed Shehabi, stated:
“Great news today as the Court of Appeal in London issue a judgment rejecting the appeal by the Government of Bahrain against an earlier decision in February 2023 quashing Bahrain’s request to be granted state immunity.
“The rejection of the latest appeal by Bahrain is a victory for freedom, justice and the rule of law. As citizens, we deserve to have our privacy preserved and protected. Interference by despotic regimes who spend people’s money on targeting peaceful opposition must not be tolerated in the modern world. I hope the court’s decision sends the right message to the Government of Bahrain that they must respect their citizens and stop exploiting their power to infringe on their freedom and rights.”
Moosa Mohammed commented:
“I wait for the day the Bahraini regime faces justice in this case for hacking my electronic devices. They thought they could get away with any crime, having tortured me since I was 14. This case sets an important precedent for others, showing that the hope of getting justice is possible. None of this could have been achieved without the support of my incredible legal team.
“This is our second victory, and it will send a clear message - not just to the Bahraini regime, but to any government that spies on dissidents on British soil.”
Ida Aduwa, senior associate solicitor at law firm Leigh Day, said:
“This judgment marks not only a significant victory for our courageous and persistent clients, but also a vital step toward accountability for states involved in transnational oppression. This measured and detailed ruling sets an important precedent and will provide greater protection to dissidents living in the UK who are targeted by the states whose deplorable actions they are working to fight against.”
Martyn Day, senior partner at Leigh Day, added:
“Leigh Day is bringing a series of claims against states who have used spyware to monitor and threaten dissidents living in this country. We are very pleased that the Court of Appeal is effectively saying with this ruling that this is not something that will be tolerated within the laws of this country. This judgment should be seen as a strong message that we are a democratic country where we protect the rights of people living in this country regardless of where they originated and who they criticise. All authoritarian regimes should take note.”
Dr Shehabi and Mr Mohammed are represented by Ida Aduwa, and Martyn Day at law firm Leigh Day. Ben Silverstone (Matrix Chambers) and Professor Philippa Webb (Twenty Essex) jointly advocated on behalf of the claimants before the Court of Appeal.
Background on the claimants:
Dr Shehabi, 68, is a pro-democracy activist, journalist and leading figure in the Bahraini opposition movement. He is a leader of the Bahrain Freedom Movement and founder of a Bahraini pro-democracy organisation called Al Wefaq. He has lived in the UK since 1973 and gained British citizenship in 2002.
The Bahraini government has repeatedly and publicly denounced Dr Shebabi, as a result of his political activism. In July 2009 his home in the UK was set on fire, days after two of his Bahraini associates, who were political activists who had campaigned against the Bahraini government, were beaten up outside Euston Station in London. He believes that this attack was also motivated by his political activities, and that individuals acting on behalf of the Bahraini government were responsible.
Mr Mohammed, 41, is a photographer and videographer and an activist for human rights and democracy in Bahrain. While living in Bahrain he engaged in activism and protests in support of human rights, democracy and improved employment opportunities. As a result, he was repeatedly arrested, detained, tortured and mistreated by the Bahraini police. As a result, he fled to the UK in 2006 as a refugee and has since been granted indefinite leave to remain in the UK.
Since living in the UK Mr Mohammed has taken part in, photographed, and helped to organise protests in the UK. He has also frequently communicated with individuals in Bahrain about the human rights abuses taking place there and has published information about their experiences online. The Bahraini government has publicly condemned Mr Mohammed on account of these activities.
In November 2012 the Bahraini Ministry of Foreign Affairs included Dr Shehabi and Mr Mohammed on a list of Bahraini nationals who have had their Bahraini citizenship revoked.
Spyware Case: Court of Appeal to hear state immunity case against Kingdom of Bahrain brought by Bahraini dissidents
Two Bahraini dissidents are preparing for a further court hearing in their landmark case to determine whether the Kingdom of Bahrain is afforded immunity over allegations that it used spyware against them while living in the UK.