Answers, at last

But plenty of questions about the China spy case still remain

The director of public prosecutions Stephen Parkinson will tell MPs and peers today that he gave the government’s deputy national security adviser every opportunity to testify that China was regarded by the last Conservative government as an enemy state.

In an unprecedented move, the DPP will give evidence alongside Tom Little KC, who as first senior treasury counsel would have led the prosecution of two defendants accused of spying for China if the case against them had not been dropped last month. They denied the allegations.

Parkinson and Little will both be questioned by parliament’s joint committee on the national security strategy about their decision last month to drop charges under the Official Secrets Act 1911 against Chris Berry, a teacher, and Chris Cash, a former parliamentary researcher.

Matthew Collins, deputy national security adviser

Little’s main witness would have been Matthew Collins CBE, the government’s deputy national security adviser for intelligence, defence and security. Later this afternoon, he will also be questioned by the 22-member committee alongside Sir Chris Wormald, the cabinet secretary.

DPP evidence

In written evidence published on Friday, the DPP told the committee what happened after Collins, referred to as the DNSA, submitted a third witness statement on 4 August that prosecutors regarded as insufficient to prove spying charges against Berry and Cash. He was invited to a meeting with a senior lawyer from the Crown Prosecution Service (CPS) and prosecuting counsel, as Parkinson recalled:

On 14 August 2025, a meeting took place between our counsel team, a CPS lawyer and the DNSA. In that conference, the DNSA told counsel that he would not state in evidence, if asked, that China posed a risk to our national security at the material time, either in open court or in a private session.

He would also not accept that China was opposed or hostile to the interests of the United Kingdom at the material time. He would accept, if asked, that China was not an enemy in the ordinary meaning of the word and would not answer the question, if asked, whether China is an enemy within the meaning of the Official Secrets Act. He would say that is a matter for the jury.

Clearly, prosecution lawyers could not coach their witness or tell him what to say. But they gave him one last chance to deliver the evidence they were looking for:

On 9 September 2025, a second conference took place with counsel and the CPS. In the conference, the DNSA confirmed to counsel that, in relation to the 2021-2023 situation, he would not say that China was an active threat.

Successive governments had declined to categorise it as such. He would be unable to say it was an explicit threat, but it would not be a “no”. If counsel were to ask anything outside the four corners of the [three witness] statements [he had given], the DNSA would not go there.

Prosecutors concluded that the evidential threshold had not been met and offered no evidence at a hearing on 15 September, bringing the case to a close.

DNSA evidence

Collins has given the committee his own account in a letter written jointly with Jonathan Powell, the government’s national security adviser.

That letter, published before the DPP’s evidence was sent to the committee, does not mention the meetings on 14 August and 2 September. But we may infer that Collins had his own lawyer with him, or readily available, when he attended those meetings. He told the committee:

Departmental legal advisers assisted with a request from counter terrorism police for DNSA to act as a witness in this recent case. External counsel with experience in criminal law also provided assistance to DNSA throughout this process.

A second witness statement was made on 21 February 2025 (though dated 2024 in error).

Explaining the background to his final witness statement, Collins added:

Following a further approach from counter terrorism police on 10 May 2025, a third witness statement was produced on 4 August 2025.

Counter terrorism police specifically requested that the DNSA provide further points of detail regarding the UK government assessment of the nature and extent of the threat to the UK from China. Examples were requested to support the CPS with a finding that, at the material time that the offences were alleged to have been committed, China was “an enemy” for the purposes of section 1 of the Official Secrets Act 1911.

It was made clear by counter terrorism police that they were only asking for the government’s view of the threat from China at the material time that the offences were committed. This was followed by further emails from the CPS to clarify the ask on 14 July.

Collins revealed that an earlier draft of his first witness statement, signed on 22 December 2023, had included the term “enemy”. The drafting process had begun in August 2023 and involved external counsel, junior officials in the national security secretariat — which he heads — and Cabinet Office legal advisers.

He and Powell told the committee:

DNSA reviewed draft wording and amended the statement to ensure factual accuracy and that it was in line with current government policy…

Drafts of a statement provided to DNSA included the term “enemy” but he removed this term from the final draft as it did not reflect government policy.

The DNSA made amendments to ensure his witness statement text reflected his assessment of the strongest elements of the evidential material provided by counter terrorism police by demonstrating that the information that was alleged to have been provided was prejudicial to safety or interests of the UK.

I understand that the Crown Prosecution Service was not told until July that the deputy national security adviser had deleted “enemy” from his earlier draft statement. We can be sure that if defence lawyers had requested disclosure of early drafts and noticed the amendments Collins had made, they would have argued that there was no case to answer.

Why was “enemy” seen as vital?

Why was it considered vital to prove that China was an enemy?

Section 1 of the Official Secrets Act 1911, which was in force at the time of the alleged offences, said:

If any person for any purpose prejudicial to the safety or interests of the State… obtains, collects, records, or publishes, or communicates to any other person any secret official code word, or pass word, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy he shall be guilty of felony (emphasis added).

Parkinson told the committee:

The case was charged under the Official Secrets Act 1911 which required us to prove that between 31 December 2021 and 3 February 2023 the defendants were acting with a “purpose prejudicial to the safety or interests of the state” and that China was an “enemy”.

The prosecution case was that the “enemy” requirement was met by proving that at the material time China was an active or current threat to the UK’s national security…

Efforts were made over an extensive period to establish whether the DNSA could provide evidence to satisfy the “enemy” requirement but by late August 2025 it was realised that this evidence would not be forthcoming. In particular, following conferences with prosecuting counsel in August and September 2025, it was clear that the DNSA would not be able to say that, at the time of the offence, China was an active or current threat to national security…

The defence had asserted as part of their case that China was not an “enemy” and so it was certain that the witness would be cross-examined on this issue at trial. It was therefore clear by late August 2025 that the absence of evidence to prove that China was an enemy was fatal to the case and the decision was made to stop the prosecution.

Writing about the case last month, it seemed to me that “useful to an enemy” did not require an enemy to be specified. But that’s wrong, according to the DPP:

The offence can only be prosecuted in the context of the facts. In our case, the facts established that China was requesting information, the information was intended to go to China and, in respect of a very significant number of individual reports provided to China, this information would only have been useful to China.

Our case therefore had to be that China was an “enemy” within the meaning of the Official Secrets Act 1911.

My supposition that “enemy” might include “potential enemy” was supported by a case called Parrott, decided in 1913 by Mr Justice Phillimore:

But that was before the case of Roussev, another secrets prosecution that the CPS was working on in 2023. It involved a group of six Bulgarians living in the UK who were convicted earlier this year of spying for Russia.

In his letter to the committee, Parkinson disclosed what happened before the Roussev case came before a jury:

We argued that “enemy” should be given its ordinary meaning of a country which is opposed or hostile to the interests of the UK, and that by demonstrating that Russia was a threat to national security we would satisfy the “enemy” requirement in the Official Secrets Act 1911. The DNSA gave a statement in evidence on behalf of the prosecution in that case and described Russia as “the most acute threat to our national security.” Ultimately, that case resulted in convictions.

The defence had challenged the CPS interpretation of “enemy” and the trial judge, Mr Justice Hilliard, gave a ruling at an early stage. So as not to prejudice the trial, his decision was not reported at the time and, as far as I know, it has not been published since then. But Hilliard’s ruling was quoted in Parkinson’s letter to the committee. The judge said:

To confine “enemy” in that way more generally would be to deprive section 1(1) of the Official Secrets Act of much of its utility. I do not think that the court in Parrott was intending to lay down any comprehensive definition.

As the evidence from the deputy national security adviser explains, state threats to the UK have grown and diversified in recent years even though actions often fall short of open conflict. I am confident that in 1911, when the Official Secrets Act was passed, it would have been obvious that enemies could appear in different guises at different times and would do so in the future.

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.

The defence challenged Hilliard’s ruling. Giving judgment in the Court of Appeal last year, Dame Victoria Sharp said:

We agree with the judge that Russia would be “an enemy” if the jury concluded on the evidence that it was a country with whom the UK might some day be at war. However, neither Mr Justice Phillimore nor [Mr Justice Hilliard] was laying down a comprehensive test.

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. As the judge correctly observed, friendly powers would fall outside this definition.

This was what Parkinson told the committee he understood the two judges had decided:

Though neither of the judgments laid down a comprehensive test for “enemy”, they did specify what the prosecution must prove in a case based on threat to national security.

It must be shown that the state “presently poses an active threat to the UK’s national security” (Mr Justice Hilliard) or “represents a current threat to the national security of the UK” (Dame Victoria Sharp).

It followed that a case based on [a] threat which did not satisfy those requirements would fail.

At the time, Parkinson explained, this interpretation of the Roussev rulings was not seen by prosecutors as a problem:

Trial counsel — first senior treasury counsel Tom Little KC and Peter Ratliff, junior treasury counsel — together with our expert team of specialist CPS prosecutors, did not anticipate that there would or should be any difficulty in obtaining evidence from the DNSA that at the material time (31 December 2021 to 3 February 2023) China was an active or current threat to national security.

But, as it turned out, this was a sticking point that could not be overcome.

Comment

As Parkinson says, the courts have not laid down a comprehensive test for “enemy”. But, as I read their judgments, Hilliard and Sharp have not laid down an exhaustive test for cases based on threats to national security either.

Certainly, “enemy” includes a state that “presently poses an active threat to the UK’s national security” or “represents a current threat to the national security of the UK”. But is it confined to those categories?

Might it not include a country that posed an “active espionage threat… to the UK between 2021-23”? One whose “state-affiliated organisations and individuals” were “targeting democratic institutions and parliamentarians as part of large-scale espionage campaigns” conducted through “malicious cyber activity”? These assessments of China are all in Collins’s third statement.

Surely any state responsible for such activities poses an active or current threat to the UK’s national security? Failing that, surely a state that poses a potential threat to democratic institutions and parliamentarians is an enemy within the meaning of the Official Secrets Act?

Parkinson and Little will no doubt have answers to these questions if they are asked this afternoon.

Hermer

On Wednesday morning, it will be the attorney general's turn. Lord Hermer KC has also written a letter to the committee in which he discusses his responsibility for “superintending” the DPP. A framework agreement deals with cases, such as this one, for which a law officer’s initial consent is needed.

It says:

Where consent has been given and a prosecution is commenced, the prosecutor keeps the attorney general’s office informed of its progress.

Where practicable, the prosecutor consults the attorney general if the prosecutor is contemplating either dropping the case on public interest grounds, or accepting pleas.

If the case can no longer proceed for evidential reasons which emerge after a prosecution is started, the prosecutor informs the attorney general of the decision as soon as it is taken.

Hermer told the committee he receives periodic updates on all sensitive cases. In August, it had been expected that the trial would go ahead.

But, Hermer said,

on 3 September, at his request, I met with the DPP who informed me of his decision to offer no evidence in the case. I noted his position and engaged in a discussion with the DPP and his team in order to understand his decision.

I did not, though, intervene in the case or give any direction to the DPP. To have done so would have been inappropriate for the reasons given. I also, at the express request of the DPP, did not share this information any further, including with cabinet colleagues, until the CPS had informed the police and defendants.

I should note that there is nothing unusual in law officers, in their superintendence capacity, being requested to keep information about individual prosecution decisions confidential — even from senior colleagues.

Hermer had been asked by the committee whether he had been consulted on the decision to drop the case against Berry and Cash. He replied:

I was not consulted on the decision, nor would it be appropriate for me to have any involvement in, or objection to, the decision to discontinue on evidential grounds.

I consider that it would be not only a breach of the framework to seek to interfere with individual prosecution decisions but would be contrary to our constitutional values.

Parliament

It’s clear from what they have already told the committee that both Parkinson and Collins believe they did the right thing — indeed, that each had no alternative. Whether they were correct in their assessments is now for parliament to decide.