What the Chinese spying case witness statements reveal

Yesterday this blog sought to make sense of the decision to drop the Chinese Spying prosecutions on the information then available, and averred that both the positions of the government and the Crown Prosecution Service did not make sense.

Now the government has published three witness statements, the picture now changes. The government’s position now makes sense, and the CPS looks as if it made at least one serious mistake and possibly another.

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The ‘Joy of Witness Statements’ is a book yet to be written.

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One always has to be careful with witness statements. They are documents created for a specific purpose: that is to put witness evidence before a court.

They are not essays or expositions to be read generally. They are not literary texts, as such. If there is something in a witness statement not relevant to something which needs to be decided by a court then it usually should not be in a witness statement.

And so when looking at any witness statement the key question is: what was the court being required to decide? You then work backwards from that question to see what is (and what is not) in a witness statement.

Witness statements can be read from beginning to end, like some linear narrative. But that is not the purpose of witness statements. They are complex documents, not linear.

Each paragraph – and each sentence – of a witness statement should related to something which needs to be put before a court.

As such they are documents more akin to computer programs, allowing the court to perform a certain task.

(One common fault of political comentators and literary historians is to use the content of witness statements without regard to what information was needed and not needed to be put before a court.)

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Yesterday the government of the United Kingdom took the extraordinary step of publishing three witness statements. These are documents which the public rarely get to see. Indeed unless the evidence is repeated in open court, the public would rarely get to know the evidence in such witness statements.

This is especially so in respect of national security matters, where a culture of secrecy means such documents are restricted.

Regardless of any other point, the publication of these statements is a boon for the public understanding of law and should be welcomed.

The government should do it more often.

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What do these witness statements tell us and not tell us?

First they tell us that the Crown Prosecution Service thought it needed to put evidence before the court.

In particular, as set out in paragraph 3 of the first witness statement dated 22 November 2023, the witness appears to have been asked to provide an “assessment of whether providing information of the type that was alleged to have been provided […] was prejudicial to the safety or interests of the [United Kingdom].”

Here the witness is, of course, echoing what he has been asked to provide.

But.

The statutory wording he is echoing is from the National Security Act 2023.

However, the defendants were not being charged under the 2023 Act but under the Official Secrets Act 1911. The 2023 Act was not in force at the time of the alleged offences.

This first witness statement thereby looks as if the witness was asked the wrong question by the CPS.

The required evidence was not that the material “was prejudicial to the safety or interests of the [United Kingdom]”.

The witness statement had to put evidence in relevant to the 1911 offence – material “which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy”.

So: presumably there was a tactful exchange between the CPS and the government and a new witness statement was required.

Was China an enemy?

You will see that paragraph 4 of the second statement now discusses whether China was a “threat”.

The following paragraph 5 then seeks to substantiate the assertion that China is a “threat” and paragraph 6 then rows that back a little.

This second witness statement was dated 21 February 2024.

The charges are then announced on 22 April 2024.

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On 16 July 2024 the Court of Appeal hands down its decision on another Official Secrets Act 1911 case, which sets out that one test for the offence is whether the country in question “represents a current threat to the national security of the UK”.

In a letter to MPs, the DPP says of this period:

“In the light of this new judgment, it was considered that further evidence should be obtained. Efforts to obtain that evidence were made over many months, but notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming. When this became apparent, the case could not proceed. This was a professional assessment made by CPS lawyers experienced in prosecuting national security and espionage cases, applying the Code for Crown Prosecutors.”

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We now come to the third witness statement dated 4 August 2025 – over a year later from the Court of Appeal decsion.

It can be seen that the CPS had now asked the witness to substantiate that China “represents a current threat to the national security of the UK”.

And so the witness sets out more detail on that point, even adding a sub-heading:

You will see the word “threat” in paragraphs 4 and 7.

Paragraphs 5 and 6 instead use the word “challenge” – but even in paragraph 6 there is mention of “economic power to coerce”.

You will also note that, contrary to news reports, paragraphs 4 and 7 show the witness was not only applying the previous government’s policy, but was also giving his own assessment of the threat of China at the relevant time.

The witness again adds a paragraph rowing back a bit, but not much.

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So the CPS now not only had paragraph 5 of the second witness statement, it also had paragraphs 4 to 7 of the third witness statement.

The question for the CPS was whether paragraph 5 of the second witness statement and paragraphs 4 to 7 of the third witness statement were enough to show China “represents a current threat to the national security of the UK” at the material time.

You may think that this evidence does, in spades.

But the CPS took the view that not even paragraphs 4 to 7 of the third witness statement were enough to meet the evidential test for there to be a realistic prospect of a conviction.

And so the prosecution was dropped.

But the content of paragraphs 4 to 7 of the third witness statement is hard to square with the DPP’s statement to MPs that “notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offence China represented a threat to national security”.

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The CPS decision that the evidence in the witness statements, especially in the third statement, did not meet the evidential test for a prosecution seems perverse.

If this evidence did not meet the test, then what would?

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The overall impression given by the witness statements is that the CPS position looks muddled. It still makes no sense.

They appear to have used the wrong law when getting the first witness statement, asking the witness to provide evidence in respect of the 2023 offence and not the actually applicable 1911 offence.

Although this error seems to have been corrected by the time of the second witness statement, it raises the question as to whether the CPS applied the correct law when making the charging decision.

If they got the law wrong at that stage, that would explain how somehow the evidential test was “met” at charging stage but not later on.

In any event, the decision to drop the prosecution for evidential reasons makes no sense in view of the third witness statement.

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As for the government, it looks like the allegation that the government wrongly stuck to the policy of the previous government is not well-founded.

And it looks like the government did what it could to provide the CPS with relevant evidence.

As such, what looked like a nonsensical position yesterday for the government becomes, well, sensical.

Some may say that the witness could have been more robust in his second and third witness statements as to the threat of China.

But there is nothing to indicate that he was undermining or compromising that view. Indeed paragraphs 4 to 7 of the third witness statement provide a plain account of a then-current threat to national security.

There may be evidence which we have not seen about the government’s position, and of any interventions by ministers and officials, but on the basis of the additional information now available from the three witness statements, the fault for the collapsed prosecution lies with the CPS, and not the government.