Saudi spyware claim goes ahead

Judge dismisses state immunity defence after dissident claims he was assaulted on a London street

Mr Justice Julian Knowles well understands the first rule of journalism — hook the reader with a gripping intro:

1. Suppose, to take a not entirely theoretical example, a foreign state (not, I emphasise, the defendant) sends two agents to the UK to kill a dissident opponent by poisoning him. The operation is planned abroad. The radioactive poison is made abroad. The operatives bring the poison into the UK from abroad. They meet with the dissident in a London hotel, poison his tea, and he dies. The foreign state’s responsibility is clearly established by the evidence. Can the dissident’s representatives sue the foreign state in the High Court for damages for his wrongful death ? Or is the responsible foreign state immune from civil proceedings by virtue of the State Immunity Act 1978?

2. To take another example, suppose agents of a different foreign state kidnap a dissident off the streets of London, hold him captive there, and torture him. Is the foreign state liable to a claim for damages for personal injury by the victim, or is it immune under the State Immunity Act 1978?

3. These scenarios involve some of the issues raised by this case. There are others.

No prizes for thinking of Alexander Litvinenko and Jamal Khashoggi. But the case decided by Knowles in the High Court today involves different facts and a man who is fortunately still alive.

Ghanem al-Masarir

Ghanem al-Masarir is a human rights activist and satirist who has shared his views through his popular YouTube channel, the Ghanem Show. He has lived in England since 2003 and is prominently involved in campaigning for political reform and human rights in Saudi Arabia. He was granted asylum in 2018.

Al-Masarir has launched a claim against Saudi Arabia. He is seeking damages for personal injury. The Saudi government asked the court to throw out the claim on the basis that, as a state, it is immune from the jurisdiction of the UK courts. Knowles has now dismissed that argument.

It seems likely that Saudi Arabia will seek to appeal. In the meantime, though, the case can proceed to trial.

Section 1 of the State Immunity Act 1978 begins:

A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.

Section 5 of the act provides one of the exceptions:

A State is not immune 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’s for al-Masarir, as the claimant, to prove on the balance of probabilities that his claim comes within this exception.

He alleges that malicious text messages were sent to two of his iPhones by, or on behalf of, Saudi Arabia and that, after he clicked on links in those messages, spyware known as Pegasus was installed on his devices. This software was developed and is marketed by an Israeli company called NSO Group.

NSO has said the functions of Pegasus include:

the extraction and ongoing collection of all data stored on or by an infected device; location tracking of the device; interception and recording of voice calls on the device; real-time interception and recording of sounds in the vicinity of the device (by covert activation of the in-built microphone); and real-time interception and recording of images in the vicinity of the device (by covert activation of the in-built camera).

The court was told that NSO sells spyware such as Pegasus only to governments. Saudi Arabia is reported to have bought Pegasus from NSO in 2017.

Al-Masarir alleges that in August 2018 he was followed and attacked near Harrods in London by men working for Saudi Arabia. He says this was after his phones were hacked but before he discovered that they were infected.

These were the questions the judge had to decide:

1. Did the act of installing Pegasus on the claimant’s iPhones and the assault fall outside the scope of section 5 of the State Immunity Act 1978 as acts done in the exercise of the defendant’s sovereign authority? Or does section 5 extend to any act of whatever type done by a foreign state in the UK which causes personal injury?

2. Does the claim fail to meet the requirements of section 5 because the alleged personal injury resulting from the spyware claims was not caused entirely by an act or omission in the UK?

3. Does the claim fail to meet the requirements of section 5 because there is insufficient evidence of the defendant’s responsibility for the persons responsible for the alleged spyware?

4. Does the claim fail to meet the requirements of section 5 because there is insufficient evidence of the defendant’s responsibility for the persons responsible for the assault on the claimant?

5. Does the evidence relied on by the claimant provide no coherent or realistic basis on which to advance the claimant’s pleaded case, such that the court should take steps to halt the proceedings in any event?¹

For the (very) detailed reasons set out in his judgment, Knowles found in favour of Al-Masarir on all issues.

One passage in his judgment will particularly interest non-lawyers. Knowles referred to a statement given in evidence by Davina Given, a solicitor representing the Saudi government. She said her clients had learned of the incident in Knightsbridge when two young Saudi men reported it to the embassy:

When the young men attended the embassy after the incident they explained to consular officials that they were, at the time, students in the UK attending a careers fair in London, who, by chance, overheard derogatory comments made by the claimant in the street about the defendant and its monarchy and took issue with them. They acted independently as private individuals out of their own sense of patriotism and [Saudi Arabia] had no knowledge of their actions until after the event, when the young men voluntarily informed the defendant’s embassy in London of what had happened.

Knowles observed:

There are shades of Mandy Rice-Davies in this explanation — “they would say that, wouldn’t they?”

He noted that, in a second witness statement, Given had said it was in fact the mother of the two individuals who had appealed for help from the embassy. He seemed unimpressed:

I am not wholly sure what “help” the mother was seeking or expecting. Nor am I clear why these grown adult men needed to rely on their mother. Whatever the men heard, it was part of a private conversation between the claimant and his friend, and so to say the men were “provoked” seems to me to be far-fetched… Those who come to this country, on whatever basis, need to realise that here there is a long and rich history of freedom of speech, especially when uttered privately.

The judge added:

There is no explanation how they just happened to have overheard comments made by the claimant in the course of a private conversation in a café or on a busy London street, who just happened to be a Saudi dissident and refugee. That the men could have done so just by chance is, [on the face of it], implausible. The video shows buses and much traffic going by, which it seems to me would have drowned out a private conversation, unless the men were intent on listening in and had the means to do so. On the other hand, if the claimant’s phone was being covertly monitored (which I have found it was), then it is plausible that they could have heard via that source and were acting on behalf of the defendant when they confronted the claimant…

Al-Masarir said afterwards that the judgment had come as a huge relief:

The impact of the assault and the targeting with spyware, which I believe was orchestrated by the Kingdom of Saudi Arabia, has had a profound effect on my life. I no longer feel safe and I am constantly looking over my shoulder. I no longer feel able to speak up for the oppressed Saudi people because I fear that any contact with people inside the kingdom could put them in danger. I look forward to presenting my full case to the court in the hope that I can finally hold the kingdom to account for the suffering I believe they have caused me.

His solicitor Ida Aduwa, from the law firm Leigh Day, added:

The judge has made it very clear that Ghanem has provided enough evidence at this stage of the case that the section 5 exception in the State Immunity Act applies to his case. We are pleased that the kingdom’s attempts to use it to throw out this case have been wholly unsuccessful… I hope this judgment will serve as a beacon of hope to those individuals who have been targeted that foreign governments cannot necessarily hide behind state immunity in these types of cases.

1. The subhead on this point between paragraphs 204 and 205 in the published judgment is garbled.