Asked to explain why prosecutors had dropped a high-profile case against two men accused of spying for China, the attorney general came out fighting last week. Lord Hermer KC told parliament’s joint committee on the national security strategy that the Conservatives had taken too long to replace the ancient statute under which they were charged – although, given Covid, and the need to consult, I do not think the Law Commission’s recommendations could have been implemented in much less than the three years it took.
It would have been unconstitutional for Hermer to have interfered with the work done by the director of public prosecutions and the deputy national security adviser, he explained. They were ‘really quite extraordinary public servants doing their absolute best’.
But that did not satisfy the committee. Eventually, Hermer had to concede that their questions were ones for Stephen Parkinson (pictured), as DPP, and Matthew Collins, who would have been the prosecution’s key witness. They had appeared before the committee two days earlier, along with a third figure who loomed over the proceedings.
Parkinson said he had enough evidence in April 2024 to charge Christopher Berry and Christopher Cash with taking action ‘useful to an enemy’. That requirement could be satisfied by proving China was a ‘threat’ to national security.
A few weeks later, there were rulings by a High Court judge and then by the Court of Appeal in a case called Roussev. This was where things started to go wrong.
Parkinson told the committee that the judgments meant ‘you can mount a case on the basis that, in that instance, Russia is a threat to national security, but you have to show that at the material time it was an active or current threat to national security’.
But there were two problems with this. First, it was not what the courts had decided. Mr Justice Hilliard, the trial judge, said: ‘Without myself trying to be comprehensive, but within the ambit of the present case, it seems to me that any state which presently poses an active threat to the UK’s national security can properly be described as “an enemy” in ordinary language. It will be for the jury to determine whether the test is met on such evidence as is called.’
And Dame Victoria Sharp, in the Court of Appeal, said: ‘There is no reason in our view why the term “an enemy” should not include a country which represents a current threat to the national security of the UK. That formulation may well involve issues of fact and degree which the jury would be well-placed to assess, on evidence.’
The judges were certainly saying that a state posing an active or current threat was an enemy. But they were not laying down an exhaustive test. A country that posed a passive or potential threat could still be an enemy. And it was for the jury to decide whether a state posed an active or current threat – as the Roussev jury did when it convicted Bulgarians of spying for Russia.
The second problem with reading these rulings too narrowly did not become brutally clear to prosecutors until more than a year later. Collins would not say China posed an active or current threat between late 2021 and early 2023, when the espionage offences were alleged to have been committed. Worse still, he had deleted the word ‘enemy’ from an earlier draft of his first statement.
Why was this? As a loyal civil servant, Collins felt unable to go beyond the government’s public position. ‘The government at that time did not go so far as to label China a threat in the generic sense,’ he told the committee.
‘What we needed was evidence that there was an actual threat,’ explained Parkinson. ‘We were not asking for statements of policy.’
It’s sometimes forgotten that the job of the CPS is to stop hopeless cases coming to court – ‘hopeless’, in this context, meaning dismissed by the judge, without hearing defence evidence, on a finding of no case to answer. Tom Little KC, who would have led for the prosecution at the trial, feared that would have happened here. But members of the committee, especially those with legal qualifications, appeared unpersuaded.
Though the decision to drop the case was one for Parkinson, he must have been heavily influenced by his senior independent prosecuting counsel. Having apparently painted himself into a corner on the law, Little then persuaded himself that he could not get past half-time on the evidence.
But Collins would have said that ‘China poses a range of threats to our national security’ – and he gave examples in his witness statements. Surely that would have been enough to convince a jury that China was, in reality, an enemy – even though it suited successive governments not to say so?
We shall now never know.
joshua@rozenberg.net
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