Why has the UK dropped its trial of two alleged China spies? | Law

An extraordinary disclosure by Stephen Parkinson, the director of public prosecutions, on Tuesday evening has triggered a political row over who was behind the sudden abandonment of a high-profile espionage case.

Two Britons had been accused of acting as spies for China. One of them, Christopher Cash, was a parliamentary researcher for the Conservative backbencher Alicia Kearns, specialising in China issues. A trial had been due to start in October, but three weeks ago the Crown Prosecution Service dropped proceedings with little explanation until Tuesday.

What did the DPP say?

Parkinson revealed in a letter to two parliamentary select committees that the CPS had dropped the case because prosecutors had tried and failed to obtain a witness statement from the government stating that China posed a current “threat to the national security of the UK”. Without it, he said, the trial of the two men had to be abandoned.

The prosecutor did not say who failed to make the assertion sought, but the focus is on Downing Street and, in particular, the national security adviser, Jonathan Powell. It had fallen to Matthew Collins, his deputy, to give witness statements in the case, part of evidence from the government setting out the harm alleged by the spying and the wider geopolitical context.

“Efforts were made over many months,” Parkinson said, “but notwithstanding the fact that further witness statements were provided, none of these stated at the time of the offence China represented a threat to national security.” He concluded: “When this became apparent, the case could not succeed.”

Why was it necessary to define China as an enemy?

Cash, 30, and a friend, Christopher Berry, 32, a researcher based in China, were prosecuted under the now repealed 1911 Official Secrets Act. To be found guilty of spying, prosecutors had to prove that a person was passing on any “document or information” that might be “directly or indirectly useful to an enemy”.

Britain is not at war with China, but case law had expanded the legal definition to cover “a potential enemy with whom we might some day be at war”. This was the law when Cash and Berry were charged in April 2024, and no problems seemed to have been raised at this stage.

However, Parkinson said the case law had changed in July and he implied that the enemy requirement had become more stringent. A clarifying ruling in another spy trial, of six Bulgarians accused of spying for Russia, had concluded: “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.”

Legal experts argued the new ruling meant that the enemy definition had been expanded and the bar to prosecution in fact had been lowered.

So is China a threat to UK national security?

The UK’s overall policy towards China seeks to strike a balance between concern about Beijing’s authoritarianism and a desire to engage over trade and environmental issues.

As a result, whether under Labour or the Conservatives, China has been carefully described. China was labelled a “systemic competitor” in the UK government’s integrated review of 2021 and an “epoch-defining and systemic challenge” in 2023. Labour, in a national security strategy released in June, went for “geo-strategic challenge”.

Yet, when it comes to spying, the warnings have been much clearer. The former MI6 chief Richard Moore said China had become “the single greatest priority” for the foreign intelligence service in November 2021.

In October 2023, Ken McCallum, the head of MI5, warned that 20,000 Britons had been approached by Chinese agents on LinkedIn in the hope of stealing industrial or technological secrets. Industrial espionage was happening at “real scale” and MI5 teams were detecting “massive amounts of covert activity” by China in particular.

What about the defendants?

The spying accusation was that Cash had allegedly passed on his knowledge about the workings of Westminster to Berry, a friend he had met while teaching in China. Berry used some of that information to inform up to 34 reports that allegedly were written for a Chinese intelligence officer – who in turn reported to Cai Qi, a member of the country’s ruling politburo.

Cash and Berry denied the charge and maintain their innocence. Cash made some public comments shortly after prosecution was abandoned, complaining of “an utterly unrestrained storm of media attention in which my character was attacked” and accusing critics of basing their arguments on “slender facts”. He has not spoken in the three weeks since, and he has been advised to focus on getting on with his life.

It is understood Cash’s legal team argued in pre-trial proceedings that he believed he was passing on public domain information in good faith about the workings of parliament or his own political predictions to Berry. In turn, Berry’s lawyer said he was working for a corporate client based in China who wanted to break into the UK.

Whose fault was it that the trial did not begin?

The former director of public prosecutions Ken Macdonald wondered if the CPS had been “a bit over-fussy” in asking the government to make a statement in open court “which would be embarrassing in some ways to British national interests”.

Keir Starmer focused on the Conservatives, saying on Tuesday that alleged offending by Cash and Berry took place in 2022 and early 2023. “You have to prosecute people on the basis of the circumstances at the time of the alleged offence, and so all the focus needs to be on the policy of the Tory government in place then,” he said.

However, the refusal to provide the additional evidence sought came under Labour.