The Prime Minister insists that the dropping of China-related espionage charges occurred for reasons entirely outwith the control of his government — but his argument that his hands were tied by the previous government’s position on China is, at best, highly contestable.
I begin this post with an important caveat: that it relates to something outside my area of expertise. I therefore offer the following thoughts in large part in the spirit of inviting those who are experts in the relevant area to contribute their views (whether via social media or by email). The subject-matter of the post arises from the recent decision by the Crown Prosecution Service (‘CPS’) to drop the charges against two defendants who had been accused of the offence of espionage under the (now repealed) Official Secrets Act 1911 (‘OSA’).
Explaining the decision, the Director of Public Prosecutions (‘DPP’), responding to a letter sent to him by the chairs of two parliamentary select committees, said that he was ‘satisfied that the decision to charge this case in April 2024 was correct … on the basis of where the law stood at that time in relation to the requirements of the Official Secrets Act 1911’. He went on to explain that in the light of a new judgment, ‘it was considered that further evidence should be obtained’. The evidence sought related to whether China constituted an ‘enemy’, criminal liability under the relevant provisions of the OSA having turned upon whether the foreign power potentially being assisted was an ‘enemy’. Efforts to obtain relevant evidence were made, said the DPP, ‘over many months’ but no witness statements were forthcoming that stated that ‘at the time of the offence China represented a threat to national security’. Once it became clear that no such witness statements would ever be forthcoming, the case was dropped.
Controversy has arisen about exactly why, and at whose behest, the decision to drop the charges was taken. Ministers and the CPS have insisted that the decision was taken independently by the CPS, as it should have been. However, it does not follow from that that Ministers may not ultimately be responsible for the decision’s having been taken, given that the prosecution could only realistically proceed if Ministers were willing to furnish the CPS with the witness statements it was seeking. Against that background, the Prime Minister has insisted that, in effect, his hands, and the hands of his government, were tied, laying responsibility at the door of the previous government. Two arguments are thus being put forward by the current government in order to disown responsibility for the dropping of the charges. First, it is said that the previous government did not consider China to be an ‘enemy’ within the meaning of the OSA. Second, it is said that the current government is bound by that position and that it cannot therefore provide evidence contradicting the view of the previous government. However, neither of those propositions is without difficulty.
Was China an ‘enemy’ at the relevant time?
As to the first point, it is uncontroversial that the relevant question is whether China constituted an ‘enemy’ at the time of the commission of the alleged offence. Thus, the issue is whether China was an enemy in 2021–23, when it had been alleged that the individuals concerned had provided information to China contrary to the OSA, not whether China is an enemy today. What, then, is an enemy? The term is not defined by the OSA. But the Court of Appeal — in the case to which the DPP appeared to be referring in his recent letter — recently considered its meaning in the case of Ivanova and Rossev [2024] EWCA Crim 808. In the context of discussing Russia, the court said:
In our judgment, the 1911 Act must be construed without reference to the [National Security] 2023 Act [which has now superseded the OSA] 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 [in an earlier case that the Court of Appeal had considered in this judgment] nor the [first instance] judge [in this case] 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.
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.
In its Integrated Review published in 2023, the then government did not say that China was an ‘enemy’ — but did not say it was not. Indeed, the word ‘enemy’ does not appear at all in the report, even in relation to Russia, which suggests that the absence of the word ‘enemy’ as a descriptor of a given state does not necessarily connote that a country was not considered to be an ‘enemy’. The report does, however, describe China as posing an ‘epoch-defining and systemic challenge … across almost every aspect of national life and government policy’, including by way of ‘threats to the UK’s democracy, economy and society’. The report went on to undertake to ‘increase our national security protections in those areas where Chinese Communist Party actions pose a threat to our people, prosperity and security’.
This is of a piece with other assessments at or before the relevant time, as the Political Editor of The Times has noted, including the view of the head of MI6 in 2021 that China was one of the ‘biggest four’ threats to the UK (alongside Russia, Iran and international terrorism). Thus, when the then Security Minister told the House of Commons in 2024 that ‘the hostile activity we have seen from Chinese authorities and state-affiliated groups poses a serious threat to the security and wellbeing of the British people and to our partners and allies across the world’, it is hard to avoid the conclusion that he was describing circumstances that obtained in the relevant period (ie 2021–23). All of this suggests that the current government’s view that the previous government did not consider China to be a threat to national security — and hence an ‘enemy’ within the meaning of the OSA — at the relevant time is, at best, based on a highly selective reading of the then government’s position.
Is the current government bound by the previous government’s view?
But what if, for the sake of argument, we accept the idea that the previous government did not consider China a threat to national security? Is it the case that the current government would be bound by that view, such that it could not supply witness statements to the effect that it considers that China was a threat to national security at the relevant time? The Prime Minister seems to think so. According to BBC News, ‘Sir Keir said the government’s description of China could not change retrospectively and had to be based on “the position of the last government”.’ The BBC report also says that ‘Sir Keir … said the government could only draw on the previous government’s assessment which dubbed China an “epoch-defining challenge”’. Meanwhile, Sky News quotes the Prime Minister as having said: ‘What matters is what the designation [of China] was in 2023, because that’s when the offence was committed…’
This appears to presuppose that the possibility of criminal liability under the relevant provisions of the OSA turned upon some form of official ‘designation’ of China as an enemy at the time of the commission of the acts in question. However, even if the UK Government maintained some formal register in which ‘enemies’ are designated, the judgment of the Court of Appeal discussed above makes it clear that the absence of China from such a register would not be decisive. That is so because the question whether a state is an ‘enemy’ does not turn upon whether it is formally designated as such, but on an evaluation by the court, based on relevant evidence, of whether the state in question is a threat to national security. This provides at least a partial answer to concerns that it would be unfair if the current government retrospectively ‘designated’ China an enemy, thereby retroactively criminalising conduct that was not an offence at the time. In truth, no such possibility arises because liability does not turn upon designation. And the fact that there may have been uncertainty in 2021–23 about whether a court in 2025 would consider China an ‘enemy’ raises no unfairness beyond that which invariably arises when courts have to rule, in determining criminal liability, on contested questions of fact.
There are, of course, reasons why the current government might judge it unwise to offer evidence today to the effect that China met the legal definition of an ‘enemy’ in 2021–23. Some of those reasons might be political or diplomatic. Others might conceivably be legal. For instance, the government might be concerned that a court would be sceptical about the government today taking a position that it (the current government) seems to think would be at odds with its predecessor’s position. But none of that means that the current government’s hands are tied in the way that the Prime Minister claims. The reality is that it is open to the government today to say that it considers that China was a threat to national security in 2021–23 and to offer that view as evidence for the purpose of criminal proceedings. Nothing in the OSA itself or in the Court of Appeal’s recent judgment would prevent that. Indeed, if the current government was legally unable to form an independent view and put it in evidence, it is very difficult to understand why the CPS would have spent several months seeking to obtain witness statements from the current government as to its view concerning the national security threat presented by China in 2021–23.
It therefore seems to me that the upshot is that the current government’s contention that the previous government did not consider China to be a threat to national security at the relevant time is highly contestable — and that even if that was the view of the previous government, it is not a view that relevantly binds the current government.
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