China 'spy' prosecution: perplexing questions

The fallout from the collapse of the Chinese spy case shows no sign of letting up. The Crown Prosecution Service last month offered no evidence against Christopher Berry and Christopher Cashon charges contrary to the Official Secrets Act 1911 on the basis that it could no longer prove that they intended to share information with 'an enemy', triggering over a month of finger-pointing, blame shifting, and unanswered questions. 

Most attention has been focussed on the role the current or previous government may have played in failing to provide the necessary evidence, and whether that was driven by political expediency at the expense of justice. Those are certainly pressing questions which deserve to be answered. However, from a legal perspective, there are equally interesting and perplexing questions about how the CPS allowed these circumstances to arise in the first place.

Unusually, the director of public prosecutions, Stephen Parkinson, has offered a public explanation of the CPS’ position in his letter to the chairs of the Home Affairs and Justice Committees of 7 October in an attempt to 'contextualise the position'. Unfortunately, it raises as many questions as it answers. Here, I suggest, are the three most important ones:

• What evidence was the CPS initially relying on to prove its case? The director says that 'I am satisfied that the decision to charge this case in April 2024 was correct'. This means that the prosecutors were satisfied at that time that they had sufficient admissible evidence to prove every necessary ingredient of the offence, including that China was 'an enemy'. It would not have been permissible to charge the case on the promise of future evidence from the government which it then failed to deliver, and that is not what the director claims. So, the question remains: what evidence did the CPS have in April 2024 that proved China was an enemy? Or, did it for some reason believe it did not need to prove that fact?

This leads to the second question.

• What was it about the judgment in R v Roussev that changed anything? The director goes on to say that the judgment in R v Roussev, handed down in July 2024, held 'that "enemy" for the purposes of the 1911 act includes a country which represents at the time of the offence, a threat to the national security of the UK. In the light of this new judgment, it was considered that further evidence should be obtained'. This statement has baffled most legal observers. The judgment deals with the definition of 'enemy' in the 1911 act in three short paragraphs, stating that 'we do not think that this term raises a question of any particular complexity' and that 'enemy means the same thing now as it did (since the act came into force)' which could 'include a country which represents a current threat to the national security of the UK'. The judgment did not set any new evidential test and, if anything, widened the existing definition, making it easier to prove. The director does not explain what it was about this judgment that raised the evidential bar. How can a judgment which widens the definition of 'enemy' mean that the evidence on which the CPS previously intended to rely was no longer sufficient? And what did the CPS think the new test was?

This leads to the third question.

• What evidence did the CPS require the government to provide, which it ultimately did not provide? Here the director’s letter is more helpful. The government did provide further witness statements but 'none of these stated that at the time of the offence China represented a threat to national security'. Therefore, we can infer that the CPS required a formal government statement of China’s status at the relevant time. It was not prepared to rely on inferences from contemporaneous public statements from officials, in general terms, about the threat China posed to the UK, nor assertions about hostile Chinese activities which could be characterised as national security threats. What we don’t know is the precise terms in which the CPS required the formal assertion to be made, nor whether it had to be supported by an evidential base set out in the statement, nor the status and seniority of the person who needed to make it. Was the CPS, as suggested by Ken MacDonald KC, a former DPP, being 'too fussy' in its evidential demands?

Until we know exactly what evidence the CPS asked for, and why it even thought it needed it in the first place, it will be impossible to judge whether anyone in this government or the previous one is culpable for being unable to provide it.

Nick Vamos is a partner and head of business crime at Peters & Peters