14/02/2023

High Court rules that a foreign state can be sued for alleged hacking of computers

On 8 February 2023, the High Court ruled in Shehabi and Mohanned v Kingdom of Bahrain that Bahrain is not immune under the UK State Immunity Act (SIA) from claims regarding the use of spyware to infect laptop computers of human rights and pro-democracy activists. This is the second case to find an exception to sovereign immunity for allegations related to spyware. The previous case concerned the alleged use of spyware known as “Pegasus” acquired from the Israeli company, NSO Group. This case involved the alleged use of “FinSpy”, produced by the Gamma Group (also known as FinFisher).

Professor Philippa Webb represented the claimants in this case as well as the earlier case on Pegasus. Dr Shehabi is a leader of the Bahrain Freedom Movement and founder of a Bahraini pro-democracy organisation called Al Wefaq. Mr Mohammed is a photographer and videographer and an activist for human rights and democracy in Bahrain.  Both claimants have been granted asylum and reside in the United Kingdom. They alleged that Bahrain’s servants or agents hacked their computers with “FinSpy” and that this amounted to harassment under the Protection from Harassment Act 1997, and that they suffered psychiatric injury as a consequence (Judgment, [8]).

The SIA provides a general immunity for foreign states from the jurisdiction of the English courts. However, section 5 SIA provides for an exception “as respects proceedings in respect of – (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.” It was this exception that allowed the claimants’ case to proceed against Bahrain.

Mr Justice Knowles stated that section does not “(a) require the presence of the infringing state actor in the UK; and (b) nor does it require all of the Defendant’s acts (ie, acts for which it is responsible) to have occurred in the UK. It is enough if an act takes place in the UK which is more than a minimal cause of the injury, etc, falling within s 5” (Judgment, [80]).

The Judge observed that while “English courts may not question the acts of a foreign sovereign within its own borders” when a personal injury “is caused by a state official overseas outside of the embassy compound, sovereignty is not impeached by bringing the state before the forum state’s court. The acts of the foreign government are a direct challenge to the UK’s sovereignty within its own sovereign borders” (Judgment, [134]).

Philippa Webb was led by Richard Hermer QC of Matrix Chambers and appeared alongside Ben Silverstone (also of Matrix). She was instructed by Martyn Day and Ida Aduwa of Leigh Day.

Read the judgment.