Spyware Case: Court of Appeal to hear state immunity case against Kingdom of Bahrain brought by Bahraini dissidents

Lawyers representing Dr Saeed Shehabi and Moosa Mohammed will argue against the Kingdom of Bahrain’s appeal of a High Court ruling last year which found that state immunity does not apply in this case. The appeal of this ruling will take place at the Court of Appeal on 29 and 30 July 2024.

Dr Shehabi and Mr Mohammed, who have been engaged in political activism to highlight and condemn human rights abuses in Bahrain for a number of years, claim their laptops were infected in 2011 by malicious surveillance software, known as FinSpy. The spyware product, also known as FinFisher, is made by Anglo-German technology company the Gamma group. The dissidents believe that the infection was carried out, directed, authorised or caused by the Government of Bahrain or its agents.

Represented by law firm Leigh Day, Dr Shehabi and Mr Mohammed made an application in November 2020 for permission to serve their claim on the Kingdom of Bahrain through diplomatic channels.

In a previous High Court hearing in February 2022, the Government of Bahrain argued that it is immune from the jurisdiction of the Courts of England and Wales, that the dissidents’ application for permission to serve out of the jurisdiction on the Kingdom of Bahrain should be set aside and that the High Court does not have jurisdiction to hear the claims and therefore they should be dismissed. The claimants argued that because the allegations relate to personal injury caused by acts or omissions in the UK, the exception in the State Immunity Act 1978 applies and the Kingdom of Bahrain is not afforded immunity in respect of these proceedings.

In a judgment handed down in February 2023, the High Court dismissed the Kingdom of Bahrain’s arguments. The court ruled that the Kingdom of Bahrain does not have immunity under the State Immunity Act 1978 in relation to its alleged use of FinFisher surveillance software to infiltrate the computers of Dr Shehabi and Mr Mohammed. It is this ruling that is being appealed by the Kingdom of Bahrain.

A similar ruling on State Immunity was made in August 2022 in the case of the Saudi dissident Ghanem Al-Masarir.

Ida Aduwa, solicitor at law firm Leigh Day, said:

“In the United Kingdom, there have been many cases where politicians, lawyers, journalists, human rights activists and political dissidents have been targeted by foreign states as a result of their work. Individuals should be empowered to take legal action against the perpetrator states and foreign states should not be permitted to hide behind state immunity when confronted by legal action in the Courts of England and Wales in such cases. We hope that the Court of Appeal will uphold the High Court’s judgment and find that private individuals can take legal action against foreign states for acts of digital surveillance and spyware in the United Kingdom."

Martyn Day, senior partner at Leigh Day, added:

“The use of spyware by foreign states to infiltrate the software of dissidents living in this country would seem to be widespread. We would hope that the Court of Appeal will follow the High Court in saying this is totally inappropriate and outside the immunity states are normally entitled to in their operations in this country.”