Shehabi and Another v The Kingdom of Bahrain [2024] EWCA Civ 1158
The claimants were pro-democracy activists and prominent members of the Bahraini opposition movement.
One was a British citizen and the other had been granted indefinite leave to remain in the UK. They alleged that the defendant state hacked their computers with a spyware program, which amounted to harassment under the Protection from Harassment Act 1997. When they discovered that their computers had been hacked, they suffered psychiatric injuries.
The defendant denied the allegations. At a hearing in the High Court, Mr Justice Knowles found on the basis of expert evidence, that the claimants had discharged the burden of proving on the balance of probabilities that their computers had been infected by spyware by the defendant’s servants or agents. However, it was still open to the defendant to challenge that finding at trial.
Knowles J had also to decide whether the defendant was entitled to immunity from civil proceedings. The answer to that question depended on whether the proceedings from which the defendant claimed to be immune were ‘in respect of … personal injury … caused by an act or omission in the United Kingdom’ within the meaning of section 5 of the State Immunity Act 1978.
There were three issues for the court to decide, which were:
(1) whether in these circumstances there was an act by the foreign state in the UK at all;
(2) whether immunity was only lost if all the acts by agents of the foreign state took place in the UK; and
(3) whether psychiatric injury was ‘personal injury’ within the meaning of section 5.
Knowles J decided that the defendant had no immunity under section 5 and the defendant appealed to the Court of Appeal. Lord Justice Males gave the lead judgment. Before he addressed the issues above, he considered the tort of harassment, the provisions of the 1997 act and the relevant case law. The facts of the present case were in some way removed from a typical case of harassment. If the hacking occurred as alleged, then presumably the defendant never intended the claimants to know of their activity and therefore never calculated to or intended to cause them alarm, fear or distress. However, the court would proceed on the basis that the claimants’ allegations would entitle them to a remedy in the tort of harassment.
Males LJ then moved to the issues under appeal. The State Immunity Act 1978 stated that in order for a state to be subject to the jurisdiction of the UK, the proceedings had to be of a kind specified in sections 2 to 11 of the act. Section 5 said that a state was not immune in relation to proceedings for death or personal injury caused by an act or omission in the UK. Males LJ considered the history of the act and the way in which it should be interpreted. He noted that previously the House of Lords had said that section 5 of the 1978 act was ‘as plain as plain can be’.
The first question was whether there had been an act by the foreign state in the UK. Males LJ considered the claimants’ pleaded case. As a straightforward use of language, the remote manipulation from abroad of a computer located in the UK was an act within the UK. The true position in such a case was that the agents of the foreign state committed acts both in this country and abroad. To distinguish between what happened abroad and what happened in the UK, characterising the former as an act and the latter as merely the effect of the act, was artificial and unprincipled. The reality was that a foreign state which acted in this way was interfering with the territorial sovereignty of the UK.
Males LJ referred to two cases on the jurisdiction point: R v Governor of Brixton Prison, ex parte Levin [1997] QB 65 and Ashton Investments Ltd v OJSC Russian Aluminium (Rusal) [2006] EWHC 2545 (Comm). These cases demonstrated on comparable facts that to describe the act of hacking as taking place in this jurisdiction was a natural and appropriate use of language.
The next question for the Court of Appeal was whether immunity was only lost if all the acts by agents of the foreign state took place in the UK. Knowles J in the court below had held that looking at section 5 of the 1978 act, immunity would not apply if ‘an’ act or omission causing personal injury took place in the UK, even if other causative acts took place abroad. Males LJ agreed. The language of section 5 was clear and unambiguous.
The third and final question was whether psychiatric injury was ‘personal injury’ within the meaning of section 5. The first claimant was alleged to have developed an adjustment disorder, while the second was alleged to have undergone a significant exacerbation of the adjustment disorder from which he already suffered. The judge in the court below had held that psychiatric injury did constitute ‘personal injury’ within the meaning of section 5 of the 1978 act. The defendant’s counsel had submitted that in 1978 the inclusion of psychiatric injury in personal injury was not firmly established in England or international law. Males LJ said that it was a general principle of statutory interpretation that a statute was ‘always speaking’, that is to say not frozen in time at the date of the enactment. It was common ground that whatever the position in 1978, English law now regarded psychiatric injury as falling within the term ‘personal injury’. In any event, the claimant’s counsel had shown, according to statutes from 1948 to 1980, the term ‘personal injury’ included the impairment of a person’s physical and mental condition. The same conclusion applied in the context of international law.
Males LJ and the other two members of the Court of Appeal would dismiss the defendant’s appeal.
Malcolm Johnson is legal director at Lime Solicitors, London
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