Recommendation 5

HM Government Accepted

The Government welcomes the Committee’s conclusion that the witness statements provided by the Deputy National Security Adviser (DNSA) were clear that China posed a range of threats to the United Kingdom’s national security. The Committee requested further clarity regarding the capacity in which the DNSA was giving evidence. Based on the request made for evidence by Counter Terrorism Policing, it was the DNSA’s understanding that he was providing evidence as a witness of fact specifically based on his experience and position in advising the Prime Minister on matters of intelligence, defence and national security, as described in his witness statements. The DNSA was asked to comment on the Government’s position on China. The DNSA has stated that he was explicit from the outset in providing his witness statements that he could only provide evidence “in line with government policy at the time”. This was communicated to law enforcement officers responsible for gathering evidence for the case to inform the CPS’ decision on whether to pursue a prosecution. The Committee requested clarity on the extent to which civil servants can act as witnesses of fact on matters that are not made explicit by government policy. While civil servants regularly provide evidence as witnesses of fact in support of prosecutions, it is unusual for a government official, such as the DNSA or NSA, to be involved in providing evidence in a criminal espionage case as a witness of fact. The nature of the facts in issue in any given case is determinable by reference to the legal ingredients of the offence charged and any defence raised. The general rule is that witnesses may only give evidence of facts they personally perceived. However, drawing on the in-depth report led by the JCNSS, the Government acknowledges there were misaligned expectations between the Crown Prosecution Service (CPS) and the Government and accepts that there is room for improvement in communications to clarify the capacity in which Government witnesses are providing evidence. The Government agrees with the Committee’s recommendation to undertake an internal exercise aimed at developing guiding principles that ensure expectations are aligned in future criminal cases and to strengthen coordination between policing, CPS and government departments on evidential and disclosure requirements. The Attorney General’s Office, the Crown Prosecution Service and Cabinet Office will conduct an internal exercise to produce a forward-looking, constructive guidance product to be used by government departments when required to provide evidence for national security prosecutions. Once finalised this guidance will be shared with the Committee and it will specifically provide clarity on: • The capacity of Government witnesses giving evidence in criminal proceedings, who they can share their evidence with (including other Government departments) and the principles of evidence and procedure in criminal proceedings; • How to optimise coordination between policing, CPS (or other prosecutorial bodies) and government departments to ensure collaboration and a shared understanding on evidential and disclosure requirements in criminal prosecutions; • The extent to which legal advice and draft statements subject to legal advice from government lawyers are properly subject to disclosure in criminal proceedings; • Whether a single witness statement is the right approach in future prosecutions, or whether the government instead prepares a position statement or relies on other materials.