22nd September 2025
What late “evidential” change could explain this sudden decision?
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Over at his substack, Joshua Rozenberg discusses the curious case of the dropped prosecutions for alleged Chinese spying. He quite rightly derides the Speaker of the House of Commons for what seem to be legally illiterate comments about a private prosecution.
The only point this blog will emphasise is that the prosecution was dropped because the “evidential threshold” could not be met.
This is an interesting detail.
There are, as you may know, generally two tests to bring a prosecution – the public interest test and the evidential test. This is known overall as the “code test” and it has to be kept under review as a case continues.
Usually when the state wants to avoid a perhaps unhelpful prosecution regarding intelligence or national security it will rely on the public interest test. That is the standard get out, and so if there was a geo-political explanation for the prosecution to end, that is the basis that one would expect would be used.
But here the prosecutor made the express point in open court that it was the evidential test which had been applied.
This is the Crown Prosecution Service guidance for the “evidential” test:
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Given the evidential test must have been met for the prosecution to have got this far indicates that perhaps one of two things may have happened.
Either there was fresh defence evidence or – and this would be an intriguing possibility – key prosecution evidence had suddenly become unavailable or was decided to be unsound.
In either situation for this to come to light at such a late stage is rather remarkable.
How fascinating.
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Perhaps a repeat of the situation with Katherine Gun? That was another Official Secrets Act prosecution which was dropped at the last moment.
As an outsider, one not well versed in either the system of justice or the practice of law, it seems odd – frankly baffling – why we would expect a prosecutor to be responsible for making an admissibility decision with respects to evidence.
An over-zealous prosecutor may try to bring a case – and go to a great deal of expense in the process – only to have part of their evidence ruled inadmissible and fail to convict. Conversely, a prosecutor nursing a couple of bruises from such experiences may be reluctant to proceed with a case where the admissibility of their evidence is a margin call.
Not wishing the malign the skills or integrity of our Crown prosecutors, I would, however, like to ask if it would not be possible to instead take such evidence before a judge or panel – a party not connected with the case in any way – to receive an independent, objective and expert opinion on admissibility?
Would that help or hinder justice? Would that lead to better outcomes, to cases being brought against the right defendants for the right reasons? And finally, just as rulings build a body of case law over time, could similar rulings on evidence help to establish a clearer foundation on admissibility through example?
Perhaps I should first make clear that I have absolutely no knowledge about this case other than what is mentioned in your and Mr Rozenberg’s blogs.
But based particularly on the latter, it seems to me that a decision must have been taken at high level that no prosecution that depends on Security Service evidence, without substantial independent support, can be sound. If that is the case (and it is pure surmise) then that must be healthy. It cannot be acceptable that officers of these Services, known to the Court only by pseudonyms can present evidence that is effectively untested by cross-examination and lead to convictions. (If it has been acceptable in the past, that is an error that has, I hope, rightfully been corrected.)
When evidence to be presented at trial includes signals intelligence [SigInt], or that from Confidential Human Sources [typically undercover sources] or similar, it would be reasonable to expect that there would need to be an agreement with the sources of that information that it could be used in Court. In some cases doing so might reveal or imply the identity of a human source; in others it could reveal the “systems and methods” by which the intelligence was harvested.
We can only speculate, but it is possible that one reason for the withdrawal is that when the CPS conducted due diligence, they learned that some of the evidence my be compromising in these or similar ways.
This is nothing new – just as Churchill’s government chose not to inform civilians about planned bombing raids for fear they would disclose to the Nazi High Command that the Enigma machines had been cracked, it is possible that prosecuting this case might result in the disclosure of more than HM Government or our Allies would wish.
This is the problem with silence – it is too easy to fill the void with speculation.
That’s what struck me as odd in both the film “Donnie Brasco” and the book by the undercover officer Joseph Pistone on which it is based. At the trial he is seen and heard in open court giving evidence, which must surely have ended his usefulness in that capacity, even if both names were fictitious.