Why collapse of China spy case has led to a political row

Labour is accused of involvement in abandoning a prosecution but there’s a wider issue at stake, as Sean O’Grady explains

A major prosecution against two British men accused of spying for China has collapsed in a heap of ignominy and recrimination. The head of the Crown Prosecution Service (CPS) has, very unusually, blamed the government for this humiliation; the prime minister (himself a former head of the CPS) has denied any such thing.

It has raised some awkward questions about Britain’s increasingly complicated relationship with the People’s Republic…

What exactly were they accused of?

Details are unclear, and now we may never know the full picture, but they were charged under the 1911 Official Secrets Act. Christopher Cash, 30, a parliamentary researcher from Whitechapel, east London, and Christopher Berry, 33, a teacher from Witney, Oxfordshire, were accused of gathering and providing information prejudicial to the safety and interests of the state, in breach of the Official Secrets Act, between January 2022 and February 2023.

They were arrested in March 2023 and charged in April 2024 with providing prejudicial information to a foreign state.

Why did the trial collapse?

The wording of the 1911 act was sufficient to charge them, but by the time of their trial this year, case law had raised the bar: some Bulgarian nationals were caught spying for Russia, and a new test of the beneficiary of any stolen intelligence being a “threat to national security” effectively became a more exacting criteria than “prejudicial to the interests” of the UK.

But China is a threat to national security, isn’t it?

Most experts would broadly agree, and many politicians too, but that’s beside the legal point. Legally, authorities must officially state that China was a “threat to national security” when the offences supposedly took place; that would require a statement to that effect at the time of the alleged espionage, or a retrospective statement to that effect made now.

What seems to have happened is that ministers and officials in the present government say they cannot make such an assertion because they weren’t in power at the time Rishi Sunak’s government only ever called China a “challenge to the world order” and an “epoch-defining and systemic challenge” to Britain; even now, the government only regards China as a “geo-strategic challenge” and not an enemy.

Did the government deliberately sabotage the trial?

That’s the claim made by Kemi Badenoch. She is right to the extent that national security adviser Jonathan Powell isn’t prepared to tell the CPS that China is a threat to national security. His explanation, and that of the PM, is that they don’t think it is at the moment, and legally and constitutionally, they can’t say if it was a threat in 2023. Helping the CPS would also cause a diplomatic incident with Beijing.

Why isn’t China a threat or an enemy?

Because we need trade and investment, especially post-Brexit. More generously, successive governments have struggled with balancing economic interests with the reality of Chinese intelligence-gathering and espionage, and have decided that engagement is preferable to hostility.

If it were left to the security services, China would be classified more harshly. Richard Dearlove, the former head of MI6, says Beijing could bring Britain to a standstill because of vital national infrastructure such as hospitals, energy grids, and transport networks, coming “under the control of the Chinese Communist Party”. Other areas of tension include: human rights, especially in Hong Kong and for the Uyghur Muslims; territorial expansion in east Asia; support for Russia in the Ukraine war; unfair trading practices; cyber attacks; net zero commitments; the sanctioning of British parliamentarians; and secrecy about the giant new embassy in London.

Could it happen again?

Probably not the collapse of a trial, as the updated law now merely says that gathering intelligence for a “foreign power” is an offence – a low threshold. However, alleged spying and the uneasy Sino-British relationship will certainly continue.