Issues
There were three issues.
First, whether there was an act by a foreign state in the UK.
Secondly, whether immunity is only lost if all the acts by the agents of the foreign state take place in the UK.
Thirdly, whether standalone claims of psychiatric injury constitute “personal injury” within the meaning of the State Immunity Act 1978 (“the 1978 Act”).
Facts
The respondent individuals alleged that a foreign state acted in the UK, including by installing spyware on computers located in England, and using it to activate microphones and cameras.
First instance
Julian Knowles J held that remote manipulation of a computer in the UK from abroad is an act within the UK.
There was no meaningful distinction between “nefarious real time manipulation from Russia of a computer in the US, and this case of a spyware attack implanting software from abroad by trickery onto a device in the UK, which then, at regular intervals under the control of the spyware program, sends data back to a [command and control] server abroad. The technicalities may be different, but the principle is the same. In both cases a foreign entity has taken control of a computer located in the UK in order to obtain data.”
Discussion
On appeal, Males LJ gave the leading judgment (with whom Warby LJ and Carr LCJ agreed).
Was there an act in the UK?
The appellant country submitted that the act of hacking takes place where the actor instigates it or conducts the manipulation, not where the target device is located. In other words, the trial judge confused the act (what the actor does to the computer located abroad) with the effects of that act (what happens as a result to the computer located in the UK).
The respondent individuals submitted that a series of acts took place in the UK. It made no difference that other acts had been performed by the appellant country’s agents abroad.
It was held that “as a straightforward use of language, the remote manipulation from abroad of a computer located in the United Kingdom is an act within the United Kingdom. The true position in such a case is that the agents of the foreign state commit acts both in this country and abroad. To distinguish between what happens abroad and what happens here, characterising the former as an act and the latter as merely the effect of the act, is artificial and unprincipled. The reality is that a foreign state which acts in this way is interfering here with the territorial sovereignty of the United Kingdom.”
This is consistent with the principles underpinning state immunity in international law.
“In modern terms, the hacking of a person’s computer is equivalent to burglars breaking in and stealing the contents of their safe. Just as the latter is an act within the United Kingdom, so too is the former.”
Is immunity only lost if all the acts take place in the UK?
The appellant country submitted that all of the acts causing the injury had to take place in the UK. Not just the injury itself.
The respondent individuals submitted that Julian Knowles J was correct that “the use of the indefinite article (death or personal injury caused by ‘an act or omission’) (emphasis added) means what it says. There has to be an act or omission in the UK which is causative of the requisite damage on a more than de minimis basis. Parliament did not say ‘the act or omission’, still less, ‘acts or omissions occurring entirely within the UK’, both of which would have been more supportive of the [appellant country’s submission]”.
It was held that the trial judge was correct.
The language was “clear and unambiguous”. “A foreign state does not have immunity for personal injury caused by an act in the United Kingdom, even if other causative acts take place abroad.” This interpretation “is in accordance with the fundamental principles of international law on which state immunity is based.”
“Accordingly, if State A interferes with the territorial sovereignty of State B by doing an act in State B which is liable to cause death or personal injury to persons in State B, it takes the risk that it will be subject to civil proceedings in State B. Such proceedings are in accordance with principles of international comity.”
Do standalone claims of psychiatric injury constitute ‘personal injury’?
The appellant country accepted that there would be no immunity for an act in the UK causing psychiatric injury if this was associated with physical injury, however, it submitted that “standalone” psychiatric injury was not within the meaning of “personal injury” in the 1978 Act.
The respondent individuals had three main submissions: the 1978 Act should not be tied to concepts of “personal injury” as they were understood in 1978; even in 1978, “personal injury” included standalone psychiatric injury; and there was no settled international law concept of “personal injury” which excluded stand-alone psychiatric injury.
The respondent individuals’ submissions were broadly accepted.
As to the first: “It is a general principle of statutory interpretation that a statute is not frozen in time at the date of its enactment, but should be interpreted taking into account changes that have occurred since its enactment.”
On the second: “As it is common ground that, whatever the position [at the time of the 1978 Act], English law now regards psychiatric injury as falling within the term ‘personal injury’, [the 1978 Act] should be interpreted in this way unless there are compelling reasons to the contrary.”
As to the third, the respondent individuals were able to show that “personal injury” encompassed standalone psychiatric injury in English law at the time of the 1978 Act. Accordingly: “It is therefore highly probable that when Parliament used the term ‘personal injury’ in the 1978 Act, that term was understood to include standalone psychiatric injury, at any rate in the absence of a settled contrary meaning in international law.”
Disposal
The appeal was dismissed.
Warby LJ added that: “A claim for damages for harassment by spying is unusual. At first sight it seems paradoxical. A course of conduct cannot amount to harassment of another unless it comes to their attention and has an impact upon them. Commonly, that is what the perpetrator intends. Spies, on the other hand, typically act surreptitiously, hoping and intending that their activities will go undetected by the target. But such a claim is not unprecedented … And this appeal is not about the viability of the claim but about the court’s jurisdiction over it.”
Written by Dominic Bright.