In explaining this week why he stopped the prosecution last month of two defendants accused of spying for China, the director of public prosecutions raised more questions than he answered.
Stephen Parkinson’s letter to two Commons committees, which I published in full yesterday, says that he would not normally explain in detail why there was no longer enough evidence to bring a particular case to court “since to do so would likely affect the confidence of witnesses in coming forward to assist with prosecutions”.
On this occasion, though, there had been “government briefings” on the evidential situation. We can infer that he decided to put the record straight.
There had been enough evidence to bring espionage charges against Christopher Berry and Christopher Cash in April 2024, he explained. But in July last year, the Court of Appeal1 gave judgment in a case called R v Ivanova and Roussev. The judgment was not published until this March so as not to prejudice the trial of six Bulgarians, who by then had been convicted of spying for Russia. But of course it was available to the Crown Prosecution Service.
Like Berry and Cash, the Bulgarians were accused under section 1 of the Official Secrets Act 1911 (now repealed). This criminalised specific actions that might be useful to “an enemy”. Defence lawyers argued that it was necessary for the prosecution to prove that “an enemy” meant a country with which the UK was at war or was likely to be at war in the foreseeable future.
That argument was rejected by the trial judge, who said any state that presently poses an active threat to the UK’s national security can properly be described as “an enemy” in ordinary language. It was also rejected by the Court of Appeal.
“There is no reason in our view,” said the appeal judges, “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.”2
The Crown Prosecution Service seems to have interpreted this as setting a new requirement. It would now be necessary to prove that China represented a threat to UK national security in 2021–23, when the defendants were alleged to have provided information unlawfully. Since no evidence to that effect was available, the case could not proceed.
Comment
I am not convinced by this reading of the judgment. It seems to me that the Court of Appeal was saying that threatening the UK’s national security was simply one of the ways of establishing that a state could be an enemy. There could be others. If anything, the Court of Appeal was expanding the definition and making it easier to bring charges.
In any event, there is ample evidence that China was a threat to national security at the time. Writing in March 2023, the prime minister Rishi Sunak said that “China poses an epoch-defining challenge to the type of international order we want to see, both in terms of security and values.”
Sunak was introducing an updated integrated review of security, defence, development and foreign policy. Since the previous review had been published in 2021, he said, “Russia’s illegal invasion of Ukraine… combined with China’s more aggressive stance in the South China Sea and the Taiwan Strait, are threatening to create a world defined by danger, disorder and division — and an international order more favourable to authoritarianism.”
Setting out the then government’s approach, the review said:
China under the Chinese Communist Party (CCP) poses an epoch-defining and systemic challenge with implications for almost every area of government policy and the everyday lives of British people. In responding to this challenge, the UK will strengthen our national security protections, align and cooperate with our partners, and engage where it is consistent with our interests…
The UK will further strengthen our national security protections in those areas where the actions of the CCP pose a threat to our people, prosperity and security. This means protecting ourselves at home, particularly our economy, democratic freedoms, critical national infrastructure, supply chains and our ability to generate strategic advantage through science and technology.
There has, of course, been a change of government since then. But it would surely have been possible to find a former minister or civil servant who could confirm that this document represented the government’s view at the relevant time. Failing that, there must be plenty of academic experts who could have attested to the view taken by ministers.
Indeed, today’s Financial Times reports that Charles Parton OBE, a former UK diplomat who spent more than two decades working on China, Hong Kong and Taiwan and is now a senior associate fellow at the Royal United Services Institute, had been due to appear as a prosecution witness in the trial.
He told the newspaper: “In broad fashion, this [collapse] says to the Chinese, ‘yes, we can bully the British, they will crumble if we play hard ball in whatever the negotiation is’ — that’s the worrying thing to me.”
Writing in today’s Telegraph, the former Conservative security minister Tom Tugendhat MP says that “countless cases of traditional espionage, cyber espionage and harassment of British nationals crossed my desk. All the government needed to do was give them to the Crown Prosecution Service.”
Tugendhat adds:
The truth is, this isn’t about legal technicalities. It’s about political will. Or rather, the lack of it…
The question parliament must answer is simple: who decided that China couldn’t be called a threat in court? Was it the attorney general, Lord Hermer? The prime minister’s special adviser, Jonathan Powell? Or did it come from the prime minister himself?
Someone made a choice. Someone decided that maintaining good relations with Beijing mattered more than protecting our parliamentary freedom. Someone looked at years of police work and said: not worth it. The public deserves to know who made that decision.
Because here’s what Beijing will have learned from this debacle. Britain talks tough but folds when tested. We’ll condemn Chinese espionage in parliament, but we won’t risk offending them in court. We value their trade more than our security.
It’s not just the Chinese Communist Party who will draw that lesson. Rivals don’t respect weakness. They exploit it. Weakness is provocative. Every day they take one more step forward, probing for resistance. When they find none, they push further.
As Professor Mark Elliott of Cambridge University wrote yesterday,
the reality is that it is open to the government today to say that it considers that China was a threat to national security in 2021–23 and to offer that view as evidence for the purpose of criminal proceedings. Nothing in the Official Secrets Act itself or in the Court of Appeal’s recent judgment would prevent that.
Indeed, if the current government was legally unable to form an independent view and put it in evidence, it is very difficult to understand why the Crown Prosecution Service would have spent several months seeking to obtain witness statements from the current government as to its view concerning the national security threat presented by China in 2021–23.
Actually, that’s not so difficult to understand. Perhaps out of an abundance of caution, the Crown Prosecution Service decided that it needed more evidence. To avoid upsetting China, the government decided not to provide it. In good faith, prosecution lawyers decided that the case could not proceed. Perhaps they were fortified in that decision when, as reported in today’s Times, the evidence began to crumble. But their boss, the fiercely independent director of public prosecutions, refused to be made the government’s fall guy.
That’s only my theory. But this story will not go away unless and until we have a comprehensive explanation from the one person in government who is fully briefed on matters of national security while at the same time “superintending” the Crown Prosecution Service.
As I wrote on 22 September, what’s needed is a statement by the attorney general. Hermer has until Monday, when parliament returns.
Update 14 October: the security minister answered MPs’ questions in the Commons yesterday. Professor Mark Elliott thinks his response does not let ministers off the hook.
Not the High Court as Parkinson said.