Category: Criminal Law

 

Usually when one reads up about a confusing-looking case the less confusing it becomes. The is usually because there will be contextual points which make odd looking things seem less odd.

But sometimes the more you find out about a case the more confusing it becomes.

And the dropping of the Chinese spying prosecutions is very confusing indeed.

It simply does not make sense, on the information available.

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This is not a foreign policy blog and I have no expertise about China as a matter of foreign and security policy. The two defendants in the now-dropped case maintain their innocence, and nothing in this post suggests otherwise.

But this is a blog which often features and explores legal messes – and this is a god-awful legal mess.

Yet legal messes are often instructive – and looking at them can help the public understanding of law.

Seeing how something goes wrong in practice lets us understand how law operates in the real world.

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When the prosecution was first dropped I noticed the use of a certain phrase.

So I wrote:

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.

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Why did this detail stand out?

Well, because it is not normal.

By way of background, a prosecution has to meet two “code tests”.

The first is the evidential test – does the available evidence make out the elements of the offence so that there is a realistic chance of conviction?

The second is the public interest test – regardless of the evidential threshold being met, is the prosecution still in the public interest?

If both tests are met then there can be a prosecution.

And both tests are (supposedly) kept under review as the prosecution progresses.

But in practice, there is usually no significant movement on either test between the original charging decision and trial. It is rare for there to be a shift.

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This prosecution, which had initially met both tests, was dropped because it no longer met the evidential test.

This was strange.

It is rare – especially in a major case – for the evidence base to change so radically from the initial charging decision to the eve of trial so that the evidential test could no longer be met.

This is not the normal course of events.

What had changed?

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My initial view (which may still have something going for it) was that the evidential test was being used to do the job of the public interest test, but for some reason the public interest had been ruled out.

Sometimes legal messes happen because some area of law or practice is being used (misused, abused) for a purpose for which it is neither fitted nor intended, and what then happens is the unhappy consequence of a misconceived and/or illiberal move.

The Crown Prosecution Service and the government have certainly got themselves in knots in how re-applying the evidential test brought this case to an end. Would it not have been smoother just for the public interest test to be re-applied if geo-political stuff about Chinese threats had changed?

Few would perhaps gainsay an evaluation of the public interest in a national security case like this.

But no: the evidential test was used, and – as we will see – it makes no sense.

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There is nothing in the news reports and official statements regarding this case to suggest that the direct evidence against the defendants had changed.

The documentary, witness and (presumably) expert evidence against the defendants appears to be the same on the day the case was dropped as on the day they were charged.

Sometimes key direct evidence becomes viewed as inadmissible; or there may be fresh evidence (either way); or the soundness of an expert opinion may be shaken. It happens – rarely – but it happens.

But that does not seem to have happened here.

Nor does there seem to be an exclusion of evidence on the basis of public interest immunity.

The direct evidence base in respect of what the defendants personally did and did not do seems unchanged.

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On the face of it what changed was not evidence about the defendants but about the “enemy”.

Here we need to look at the relevant statutory offence.

The offence charged was under the Official Secrets Act 1911:

The wording is somewhat out-of-date – “sketch” etc – and the Act has now been replaced with a more modern statute. But this was the offence that in force at the time.

The key phrase for us is “directly or indirectly useful to an enemy”.

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One may take the view that this reference is not to any particular enemy, but to any enemy. The enemy does not even need to be a nation state.

Imagine, for example, a mercenary spy who takes sensitive information with the view of selling it to the highest bidder, whether that be any enemy state or not (or even back to the government). That information would still be of use to an enemy: we just would not know which one.

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The view, however, seems to be that there has to be evidence as to the enemy.

That evidence would usually be in the form of a witness statement from an official saying, yes, this is information useful to an enemy.

And if the jury accepts that, and the other elements of the offence are made out, then the jury can convict.

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But what happened in this case is set out by the Director of Public Prosecutions – the head of the CPS – in a letter to two parliamentary committees:

It is the legal responsibility of the CPS to independently assess the evidence in every case. That responsibility is an ongoing obligation throughout the life of a case. I am satisfied that the decision to charge this case in April 2024 was correct. This was on the basis of where the law stood at that time in relation to the requirements of the Official Secrets Act 1911. Some weeks later, a High Court decision (R v Roussev and others 2024) ruled that “enemy” for the purposes of the 1911 Act includes a country which represents at the time of the offence, a threat to the national security of the UK.

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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This account superficially makes sense, and it is written in that nod-along way which can be a feature of such letters.

But with a close look what is said here is problematic.

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First, note the deft switch from the first person to the passive voice: “I am satisfied that the decision to charge this case in April 2024 was correct. […] it was considered that further evidence should be obtained.”.

Considered by who?

Such a switch in a formal document is usually evasive, and it should put the reader on alert.

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Second, the DPP refers to “a High Court decision”.

What he appears to mean is not a High Court decision but a decision of the Court of Appeal on appeal from the Crown Court.

Mixing up such courts is something which is fair enough for a lay person but it is something which is strange in a DPP, especially as generally the High Court deals with civil matters.

Perhaps it is an innocent slip, but it also suggests that the DPP may not be that personally familiar with the case and was reliant in the letter on what someone had told him.

Curiously, in Parliament the security minister in a statement on the case also made the very same slip relying on the DPP letter:

What has changed is the CPS’s assessment of the case law. The DPP has explained that in a separate case—the Crown v. Roussev—the High Court ruled on the threshold for evidence needed to prosecute under the antiquated 1911 legislation.

Is nobody actually looking at the cases on which they are seeking to rely?

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Third, and this is the main point: the Court of Appeal decision widens, not narrows, the meaning of the provision.

The President of the King’s Bench Division said in a joint judgment (broken into smaller paragraphs):

In our judgment, the 1911 Act must be construed without reference to the 2023 Act and in a common sense way. This is not a case of applying any “updated construction”: enemy means the same thing now as it did in the years before the First World War.

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 Phillimore J nor the judge 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.

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All that the prosecution would need to show with the now-dropped case was that China “was a country with whom the UK might some day be at war”. And it would be for the jury to decide if that were the case.

Note the word “include” by the judge. This means that showing a country “represents a current threat to the national security of the UK” is just one way of showing a country is an enemy for the purpose of the Act.

And as the Court of Appeal says, that “formulation may well involve issues of fact and degree which the jury would be well-placed to assess, on evidence”.

In essence: a wide defintion, and it is for a jury to decide.

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This is not just my view.

My fellow legal commentator Joshua Rozenberg, with whom I sometimes disagree on international law-related matters, also is unimpressed:

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.”

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And the estimable Professor Mark Elliott states in one of his two excellent posts on this case (here and here):

The effect of this judgment is to make it clear that pre-existing case law that said that ‘enemy’ includes ‘a potential enemy with whom we might some day be at war’ as well as states with which the UK is currently at war was not limiting the category of ‘enemies’ to such states. Thus, the Court of Appeal held in Ivanova and Rossev that the category also includes states that represent a ‘current threat to the national security of the UK’. Contrary to some suggestions that have been made, or at least implied, in the media, this does not make prosecuting for this offence more difficult: by making it clear that the definition of ‘enemy’ is a relatively broad one, it makes establishing that aspect of the offence easier.

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In other words: if there was sufficient evidence on the “enemy” point for the charges to be brought in the first instance, there should be nothing in the Court of Appeal decision to change the position.

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Now let us go back to the DPP letter:

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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So there are two things here to note: the CPS were requesting new evidence and the government was not giving it – or at least not giving what the CPS wanted.

On the basis of the above, it may have been a mistake for the CPS to seek this new evidence.

But, if the CPS was not mistaken, the culpability seems to switch to the government for not providing the requested evidence.

The key sentence is this:

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.

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Now let us go back to the ministerial statement:

The deputy National Security Adviser—a senior official with very extensive experience in matters relating to national security—provided a witness statement in December 2023, under the previous Government. Further witness statements were requested and provided in February and July of this year.

All the evidence provided by the deputy National Security Adviser was based on the law at the time of the offence and the policy position of the Conservative Government at the time of the offence. Every effort was made to provide evidence to support this case within those constraints.

This accords with the DPP letter – further evidence was asked for and witness evidence given.

But it appears that the CPS were insisting that the government witness statement spell out that China was “a threat to national security” and the government refused.

The government then blames “constraints” supposedly set by law “at the time of the offence” and policy “of the Conservative Government at the time of the offence”.

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This is a really odd form of words. It is not for an official to self-censor their evidence on their personal understanding of the law. That is not their role to second guess what a court may say the applicable law was or was not. Whoever came up with that part of the ministerial statement does not understand witness statements.

Nor was the witness statement likely to be directly about the policy of a previous government. The offence is not concerned about policy positions. And a government is not bound by what a previous government assessed to be a threat.

In essence: the supposed constraints seem unconvincing.

Like the DPP letter, but separately, the ministerial statement makes no sense.

And although one can just about see why the DPP made a mistake, on a misreading of the Court of Appeal decision, it is perhaps impossible to think of a good reason why the government makes its mistake.

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At his blog, Mark Elliott puts the general position very well:

First, there are publications and statements in the public domain (referred to in my previous post on this topic) indicating that the previous government did consider China to be a threat to national security at the relevant time.

Second, the Prime Minister appeared to suggest that the current government was bound by the previous government’s view as to whether China was a national security threat at the relevant time. But there is nothing in 1911 Act or in relevant case law that justifies such a view.

Third, the Prime Minister appeared to suggest that everything turned on whether China had been ‘designated’ as an enemy or national security threat by the previous government at the relevant time. However, the 1911 Act recognises no such concept of designation, criminal liability turning simply on whether the court is in receipt of evidence to the effect that the country in question was a threat to national security at the relevant time.

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The more one knows about this case, the more confusing it becomes.

The CPS insists on further evidence it does not require, and the government insists it could not give that evidence, even though it could.

Neither side makes sense, and together they make no sense absolutely.

So either the CPS and the government simultaneously get themselves into an utter muddle on a major espionage prosecution.

And such concurrent cock-ups are conceivable.

Or there is another explanation.