UK’s government had no choice but to drop China-spying case

Abandoning a criminal prosecution is as controversial in England as it has been in the Republic of Cyprus (RoC) where there is a proposal to transfer the prosecutorial function of the attorney-general to a new prosecuting authority similar to the director of public prosecution (DPP) in England.

Unsurprisingly, the attorney-general opposes the proposal to split his office on the ground that it is likely to be struck down as unconstitutional by the Supreme Court and cause uncertainty in the administration of criminal justice.

The controversy in Cyprus was precipitated by a recent decision by the European Court of Human Rights in NT v Cyprus that a prosecution for rape was wrongly abandoned by the deputy attorney-general in breach of the victim’s right to have her complaint investigated and prosecuted properly.

In England the DPP is responsible for starting and stopping prosecutions although the attorney-general retains a supervisory role and a residual power in exceptional cases to appeal unduly lenient sentences and to override the DPP and stop a prosecution in the public interest. Unlike Cyprus, the attorney-general in England is answerable to parliament both for his office and that of the DPP’s prosecution service.

Abandoning a prosecution has two distinct aspects: no realistic prospects of success or if a prosecution is not in the public interest. The first is based on a rigorous evaluation of the evidence which is exclusively a prosecutorial function whereas the second can be a political judgement, although in England it is usually done without political interference.

The current controversy in England is that the DPP abandoned a prosecution of two defendants for spying for the People’s Republic of China because the government was unwilling to provide clear unequivocal evidence that China was an enemy state that threatened UK national security between 2022-23. As it was the government’s national security adviser who failed to provide the evidence, it was the prime minister not the attorney general who had to answer to parliament.

The defendants were charged with passing information to China in breach of a law of 1911 that prohibits “passing information useful to an enemy.” The problem was made worse by the fact that the government between 2022-23 when the information was passed and the defendants were charged was a Conservative government, and the government when the prosecution was stopped was Labour.

The DPP is above politics but the failure to provide the evidence that China was an enemy while the Conservatives were in power between 2022-23 was a failure by a Labour government which is why the issue became highly charged politically.

The words “useful to an enemy” in the 1911 law are more to do with the nature of the information than a need to prove that the state receiving the information is an enemy, but the law has been interpreted in case law to mean that the prosecution has to prove that the state receiving the information poses a threat to UK national security.

Another interesting feature of the case is that the 1911 law was repealed by a national security law of 2023 that anticipates the problems thrown up by the status of China as a foreign power that is both friend and foe.

Under the new law a person is guilty of spying if he or she provides a foreign power with protected information for a purpose he knows or should know is prejudicial to the safety or interests of UK. There is no requirement that the foreign power is an enemy state – just that the information is protected and that the spy knows or should know it is prejudicial to UK security and its economy to provide it to a foreign power.

The UK government has now published the evidence of its national security adviserthat fell short of the evidential threshold, and I have to say the DPP was justified in stopping the case. After a lot of waffle about China being both friend and foe, it seemed to me that some of the information alleged to have been passed to the Chinese was insider news of the type the BBC’s political editor Nick Watt reveals most nights on the BBC’s TV programme Newsnight – though he is always careful not to reveal his sources.

But more to the point, the national security adviser was reluctant to state clearly and categorically that China posed a threat to UK national security. The important question lost on many commentators is the reason for his reluctance which must have been that he did not want to be shown up in cross examination as being economical with the truth.

The defence would have put to him in cross examination that China was not thought by the government of the day to be an enemy, including by its business minister, Kemi Badenoch – now Conservative leader – who told Sky News on September 10, 2023 “that we should not be describing China as a foe”.

I also do not buy the argument that the evidence should have been placed in front of a jury and let them decide whether China was a threat to UK national security. The case was unlikely to reach them for decision because the judge would have had to stop the trial at the close of the prosecution if the prosecution evidence that China was an enemy was seriously undermined in cross examination.

So, there are good reasons why the prosecution must assess whether the evidence is admissible, credible, reliable and capable of supporting a conviction including considering likely lines of defence that could force the judge to stop the trial.

The case is, however, important because China is both a trading friend and security foe, and government must tread carefully because as is well known you can’t have your cake and eat it.