The UK Supreme Court has ruled that the Kingdom of Bahrain cannot claim state immunity over alleged spyware attacks targeting two UK-based dissidents, in a 3-2 decision that dissenting judges warn could place the country in breach of international law. Handed down on 27 July, the judgment by Lord Lloyd-Jones, Lord Hamblen, and Lady Simler clarifies the territorial reach of the State Immunity Act 1978 in digital litigation, allowing the personal injury and harassment claims brought by Dr Saeed Shehabi and Moosa Mohammed to proceed in English courts, according to court documents.
Supreme Court Rejects Bahrain’s State Immunity Appeal
According to the Supreme Court majority, the statutory exception removing state immunity for personal injury caused by “an act or omission in the United Kingdom” does not require every causative act to happen in the country or demand that foreign state agents be physically present. The respondents allege that starting around September 2011, agents acting for Bahrain remotely infected their computers with FinSpy spyware. Dr Saeed Shehabi, a pro-democracy journalist living in the UK since 1973, and Moosa Mohammed, a democracy activist in Britain since 2006, contend the malware intercepted communications and activated webcams without their knowledge, causing psychiatric injury after disclosures by WikiLeaks and Bahrain Watch in 2014.
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The claimants argue that the sustained surveillance amounted to unlawful harassment under the Protection from Harassment Act 1997, giving English courts the jurisdictional hook needed to hear the case.
Legal Arguments and the Split Decision
Bahrain argued that proceedings were barred because the surveillance was initiated and controlled from abroad, presenting three alternative interpretations of section 5 of the 1978 Act. According to court filings, Bahrain contended that the exception applied only if the responsible act occurred entirely in the UK, if every causative act took place locally, or if the individual responsible was physically present. The majority dismissed these arguments, stating that adopting such limits would mean reading words into the statute that Parliament deliberately omitted when departing from the European Convention on State Immunity.
Dissenting judges Lord Leggatt and Lord Burrows took a different view. According to their dissenting opinion, section 5 should have been interpreted consistently with the European Convention on State Immunity, requiring foreign agents to be physically present in the UK before immunity could be denied. The dissent warns that the ruling could place the UK in breach of international law.
Implications for International Law and London Litigation
According to Jehad Mustafa, a partner at Farrer & Co, the judgment carries profound consequences for the UK’s standing in international law. “The consequences of this judgment are likely to be profound,” Mustafa stated, noting that permitting proceedings against foreign states for sovereign conduct directed from abroad makes the UK an outlier. Mustafa added that the ruling will likely make London the preferred forum for a range of claims against states, though it may create major friction in international relations.
To illustrate the stakes, the majority pointed to modern scenarios where foreign states might remotely detonate a drone bomb, hack NHS computer systems, or interfere with Heathrow Airport aircraft landings via cyber operations. Such actions represent direct interference with British territorial sovereignty, meaning Parliament could not sensibly have intended them to fall outside the statutory exception, the court found.
Frequently Asked Questions
What did the Supreme Court decide regarding Bahrain?
According to the UK Supreme Court, Bahrain cannot claim state immunity against spyware hacking claims brought by two UK dissidents under section 5 of the State Immunity Act 1978.
Why did the dissenting judges object to the ruling?
According to Lord Leggatt and Lord Burrows, the decision departs from the European Convention on State Immunity and could place the UK in breach of international law because the foreign agents were not physically present in the UK.
What happens next in the legal proceedings?
The ruling resolves only the preliminary issue of state immunity. According to court records, the underlying allegations of unlawful surveillance will now proceed to the High Court for determination unless the parties reach a settlement.
What are your thoughts on the Supreme Court’s ruling regarding state immunity and digital surveillance? Join the discussion and leave a comment below, or explore our legal archives for more updates on international law and human rights cases.
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