Source · Select Committees · National Security Strategy (Joint Committee)
Recommendation 17
17
Accepted
As the international security environment worsens, we expect the number of national security prosecution cases...
Recommendation
As the international security environment worsens, we expect the number of national security prosecution cases to rise. We urge the Government to avoid characterising the failure of the Cash/Berry case as a one-off peculiarity created solely by outdated legislation: there are structural parallels in the National Security Act 2023 which will require careful handling to avoid comparable issues recurring. For example, it is plausible that there will be diplomatic sensitivities around labelling individuals as members of a foreign intelligence service—and hence the precise wording of evidence statements will remain of utmost importance. (Conclusion, Paragraph 125)
Government Response Summary
The government heeds the Committee's caution regarding "structural parallels" in the National Security Act 2023, committing to carefully handle issues like diplomatic sensitivities and ensuring new, future-focused guidance for government witnesses addresses these challenges in future prosecutions.
Government Response
Accepted
HM Government
Accepted
The Government concurs with the Committee’s assessment that the “root cause” of the prosecution’s failure was the use of the Official Secrets Act 1911, which was archaic and fundamentally unfit for purpose. The Attorney General has stated he has “no doubt” that had the National Security Act 2023 been in force at the material time, the prosecution would have proceeded to trial. However, we heed the Committee’s caution that the National Security Act does not negate all risks; we remain committed to carefully handling “structural parallels” under the National Security Act, such as the diplomatic sensitivities surrounding the labelling of individuals as members of foreign intelligence services. The Government will continue to work tirelessly to ensure that we have the most effective structures and processes in place to support law enforcement partners in mitigating and prosecuting foreign espionage wherever we find it and regardless of the nature of our diplomatic relationship with any foreign powers involved. We will also ensure that new guidance on the production of evidence from Government witnesses is future-focused and could be applied to criminal cases brought under a range of national security legislation. We consider that the difficulty posed by the ‘enemy’ test under the Official Secrets Act 1911 has been mostly resolved in the National Security Act. The new guidance will help police, CPS, and government departments work together to clarify evidential and disclosure needs in future prosecutions focusing on the facts in issue and the legal ingredients of the offence charged.