China Crisis: Questions for the DPP

In April 2024, the Crown Prosecution Service (CPS) authorised charges against Christopher Berry and Christopher Cash for “providing prejudicial information to a foreign state, China”.

The pair were charged under the 1911 Official Secrets Act (OSA), Section 1(1) (c) over offences that allegedly took place between December 2021 and February 2023.

The alleged offences, under the terms of the Act, were that Berry and Cash had passed on information, documents, articles or notes that were “useful to an enemy”. The two men denied the allegations.

The CPS brings charges in cases only where it considers there is a realistic prospect of conviction and where a prosecution is in the public interest. 

For the CPS to have decided that there was a realistic prospect of conviction in this case it will have determined, by April 2024, that there was enough evidence for a more than a 50 per cent chance of conviction.

Part of that evidence would have been proving to a jury that China was an enemy - otherwise the offence would not be made out.

The OSA does not define ‘enemy’, but from other cases it has been understood to mean a country at war with the UK or a country with whom the UK might be at war some day.

In April 2024, the CPS must have been confident that it could produce evidence to that effect. If it was not, it should not have authorised the charges.

Indeed, Stephen Parkinson, the Director of Public Prosecutions for England and Wales (DPP), has said that he is “satisfied that the decision to charge this case in April 2024 was correct”. 

In July 2024, the Court of Appeal, in a separate alleged spying case, broadened the definition of ‘enemy’ to include countries which represent a “current threat to the national security of the UK”. 

Parkinson said that in the light of that judgment, the CPS considered that “further evidence” should be obtained, but he said none of the new witness statements supplied stated that “at the time of the offence China represented a threat to national security”, so the case could not proceed. Berry and Cash were formally acquitted last month. 

I am puzzled: if the CPS considered that the evidence was strong enough in April 2024, including being able to prove that China was a country with whom the UK might one day be at war, why was it not strong enough in September 2025 when the definition of ‘enemy’ was, if anything, broader than before?  

The Court of Appeal ruling did not make it a requirement for a country to be a national security threat to be classed as an ‘enemy’, for the purposes of the OSA, it simply said that there was “no reason” why ‘enemy’ countries should not include countries that pose such a threat.  

Did the CPS, therefore, misinterpret the meaning of the appeal ruling? I think that is unlikely. 

What I think is more likely is that it began to realise over the course of the 17 months between the suspects being charged and the prosecution being discontinued that its case was not as strong as it originally thought. 

That may have been because it found that it did not have the evidence that between December 2021 and February 2023 China was assessed as a country that might some day be at war with the UK, or that evidence emerged to the contrary.  If that is the case, that represents poor judgement on behalf of the CPS in authorising the charges in the first place - but it would help to explain why the CPS grasped for the new definition of ‘enemy’, that China was a “national security threat”.

But the DPP's explanation, that evidence wasn't forthcoming that China posed a security threat, appears to be at odds with public statements and assessments. On the day the case collapsed, in September, Dan Jarvis, the Security Minister, told the House of Commons that the government was “gravely concerned about the threat of Chinese espionage".  Last week, the Foreign Secretary, Yvette Cooper, told the BBC: “We know China poses threats to UK national security.” You could hardly get more explicit than that in relation to the present day. Over the past few years, there have also been numerous references in speeches and documents to the ways in which the Chinese pose security threats - could these not have been used by the CPS to support its case?

It is possible that setting out what a ‘national security threat’ meant in practical terms, particularly in relation to this case, would risk exposing sensitive information, techniques or methods that the UK intelligence and security agencies would rather not share. In the past, the unwillingness by prosecutors to disclose sensitive material to the Defence has caused other cases to be abandoned.  But could independent intelligence analysts or experts not have been called as prosecution witnesses to describe the threat picture in general terms?

One thing that ministers certainly did not want to do is to label China as an ‘enemy’. Jarvis told MPs: “The last Government did not describe China as an enemy, and this Government do not think our relationship can be simplified down to a single word.”  But the CPS must have - and should have - known what the previous government's position was regarding the term 'enemy' when the charges were brought in April 2024. 

Perhaps there are other reasons for the case being dropped that we haven't been told about. After Berry and Cash had been charged, and shortly before the case was due to go to trial, it has been reported that their lawyers presented the CPS with a statement setting out what their defence would be, as is common practice. For prosecution lawyers, that is often a moment for reflection, when they begin to see obstacles in the case that weren’t so evident before. The Defence may have argued that much or most of the information that was allegedly passed on by the pair was publicly available or benign. That would certainly have made it harder for the CPS to prove its case under the terms of the OSA.

I don’t know for sure why the alleged China spying case was halted. But I think the CPS must take responsibility for it; the organisation is content to take credit when it achieves a successful prosecution, so it must be up front when a case is suddenly dropped after months of investigative work and case preparation. The case has become a political football, with the charges brought when the Conservative government was in charge and dropped under Labour, which is pursuing a more friendly relationship with the Chinese, but it is for the independent prosecution service to explain why it was dropped. The explanation given so far by the DPP doesn’t add up - and begs more questions than answers.