Chinese whispers

With each attempt to explain why the China spying case collapsed, the reasons become increasingly nonsensical

Let’s try a little thought experiment. Imagine that there is a country, Nimbia, that we think of as a friendly state – an ally – but secretly it has been plotting against the UK. Nimbia recruited spies in the UK in 2021 who infiltrated some of our most secret establishments and were sending highly prejudicial information back to the government of Nimbia. Imagine, too, that in the final few days of the Sunak government, Nimbia’s spies were discovered, leading to their arrest and the subsequent realisation (after the election that brought Starmer to power) that Nimbia had been planning an attack on the UK.

The good news (in this hypothetical scenario) is that the attack has been thwarted. We are all safe. The bad news is that, according to Sir Keir Starmer, Prime Minister of the United Kingdom, the spies couldn’t be charged with spying.

[Source: Setreset, CC BY-SA 3.0v, via Wikimedia Commons]

Absurd as that suggestion is, it is the direct inference of one of the reasons Starmer has given for the recent collapse of an actual spy trial in which two British citizens were accused of spying for China (not, I hasten to add, with any suggestion that an attack was being planned by China or that the accused wanted such an outcome – those elements were pure fiction in order to beef up my hypothetical scenario).

On 8 October, during the political blame game over who, if anyone, was at fault for the collapse of the trial, Starmer said:

What matters is what the designation [of China] was in 2023, because that’s when the offence was committed. [Witness] statements were drawn up … according to the then government policy, and they haven’t been changed in relation to it… Nor could the position change, because it was the designation at the time that matters.

Apply that reasoning to my Nimbia hypothetical and it’s clear that Starmer is suggesting that, if the previous Government had failed to realise that Nimbia was a threat to the UK whilst the spying was actually going on, no amount of evidence uncovered after the spies were arrested could be used to demonstrate that Nimbia had truly been a threat. The Starmer thesis is that it’s not spying unless the UK government has not only realised that the spying country posed a threat, but also designated it as such … and did so before the spies were stopped.

That argument is pure poppycock. But, sadly, it’s only a part of the general nonsense that has been trotted out during the arguments over the trial’s collapse.

Let’s take a closer look.

The accused were charged, under the Official Secrets Act 1911, with “providing prejudicial information to a foreign state”. For this charge to succeed, the Act required that the information be “useful to an enemy”.

The Crown Prosecution Service (CPS) were satisfied, in April 2024, that, based on the evidence they had at that time, together with the prevailing law at the time of the alleged offences, “the decision to charge this case … was correct.” The evidence included a 12-page statement from the Deputy National Security Adviser (“the first witness statement”), which included the following observation (in paragraph 6) relevant to the possible enmity of China:

The Chinese Intelligence Services … conduct large scale espionage operations against the UK … to … harm the interests and security of the UK.

A few months later, in July 2024, the court in a quite separate spying case (widely referred to as the Roussev case) determined that, for the purposes of the 1911 Act, the term “enemy” includes a country which, at the time of the offence, represented a “threat to the national security of the UK.” The Roussev judgment was widely interpreted by lawyers as a broadening of the definition of the term “enemy” (in other words, a lowering of the threshold for securing a conviction). So, if the CPS already had sufficient evidence before that judgment was handed down, they should still have been good to go after it.

But the CPS behaved as if they thought otherwise. They went back to the Deputy National Security Adviser for more evidence in the form of a second witness statement and then a third witness statement. We know that this call for further evidence was triggered by the Roussev case because the head of the CPS has told us so in a letter written to the chairs of two Parliamentary Select Committees.

In his second witness statement, the Deputy National Security Adviser observed (in paras 4 and 5) that:

China also presents the biggest state-based threat to the UK’s economic security… For example, a wide range of UK government and commercial targets were attacked by three ‘Advanced Persistent Threat’ groups which the UK Government attributed to China’s Ministry of State Security ,,, [using] continuous, clandestine, and sophisticated hacking techniques to gain access to a system … with potentially destructive consequences.

In his third witness statement, he observed (in paras 6 and 7) that:

In July 2021, the Government … emphasised China as a “systemic challenge” to the UK’s security, values, and interests. In 2023, the Government … went further, recognising China under the Chinese authorities as an epoch-defining and systemic challenge with implications for almost every area of government policy and the everyday lives of the British people… [Specifically], in March 2024, the UK Government identified a pattern of malicious cyber activity by Chinese state-affiliated organisations and individuals targeting democratic institutions and parliamentarians as part of large-scale espionage campaigns that had taken place [in the period 2021-23].

Despite all of the above (and more besides: the three statements amount to 18 pages, in total), the CPS concluded, or so they told the Select Committees in the aforementioned letter, that

none of these [witness statements] stated that at the time of the offence China represented a threat to national security, and by late August 2025 it was realised that this evidence would not be forthcoming.

But that was almost exactly what the first statement had said, in paragraph 6 of the statement, which I quoted above. It is worth repeating here:

The Chinese Intelligence Services … conduct large scale espionage operations against the UK … to … harm the interests and security of the UK.

We don’t know what the CPS had said to the Deputy National Security Adviser when asking for his evidence because communications from them to him have not been disclosed. Perhaps the CPS asked for a more specific form of words that were not forthcoming, but there appears to be no shortage of lawyers who think that the three statements provided sufficient evidence from which a jury could conclude that the “enemy” test had been met. As the court concluded in the Roussev case:

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.

It is worth stating that, so far as the trial was concerned, enmity was a matter for the jury to decide, not the witness. That may sound odd to a layperson, but British courts leave all matters of fact to a jury to conclude on (it is something I have written about before).

And so to the politics. In Questions to the Prime Minister on 15 October, the leader of the Conservative Party accused the current government of being responsible for the collapse of the trial, something which the Prime Minister emphatically denied. He placed the blame on the previous Conservative government, saying:

The case did not proceed because the policy of the past government did not meet the test that was necessary.

So here was Starmer repeating, this time in the House of Commons, the same daft argument that he had used a week earlier, that (paraphrasing) it’s not spying unless the UK Government has already realised that the foreign power has hostile intentions. He said this despite being a former head of the CPS.

Starmer also sought to blame the previous Conservative government on the basis that:

They failed to update the law.

This last comment is a reference to the fact that the National Security Act 2023 changed the law in various ways, including removing the word “enemy” and using instead “foreign power”, but that law change came too late for the case under discussion.

In the past 24 hours, another former head of the CPS has stepped into the discussion. Lord Macdonald KC runs an excellent politico-legal podcast with Tim Owen KC, which they call Double Jeopardy. In the episode on 22 October 2025, dealing with this topic, they say (at 34:30 and 46:00) that the Deputy National Security Adviser gave his first statement in the belief that charges (which had yet to be brought when he made this statement) would be brought under the 2023 Act. The KCs base this assessment on the fact that the Deputy National Security Adviser concluded his first statement by using the words “prejudicial to the safety or interests of the UK”, which are words found in section 1 of the 2023 Act.

But the 1911 Act, which turned out to be the actual basis of the charge, uses those same words, except with “State” in place of “United Kingdom”, and in paragraph 3 of his statement the Deputy National Security Adviser had actually written “prejudicial to the safety or interests of the state (which I take to mean the United Kingdom)”.

So the Macdonald-Owen theory that the CPS had to go back to the Deputy National Security Adviser for more evidence because he had been working from the wrong act of parliament doesn’t seem to work either.

Macdonald and Owen do have a second theory as to why the case collapsed. Their podcast on this topic features an interview with Professor Kerry Brown, a former UK diplomat, academic and China expert, who had been due to be a defence witness. Macdonald and Owen speculate that Brown’s report, which was served on the prosecution on 29 August 2025, may either have crucially undermined the prosecution case relating to the alleged activities of the defendants (at 39:12 in the podcast) or have required the UK Security Services to disclose state secrets that they were not prepared to reveal (at 46:30).

The podcasters conclude that we will probably never know why the case was dropped, unless the written advice given to the CPS by prosecuting counsel, Tom Little KC, is published. They could well be right. In the meantime, we just have the Prime Minister spouting rubbish.