Recommendation 17

HM Government · verbatim extract 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. Appendix 2: Letter from Stephen Parkinson, Director of Public Prosecutions, Crown Prosecution Service I would like to thank the Joint Committee on the National Security Strategy for its report following its inquiry into Espionage Cases and the Official Secrets Acts. I understand that the Cabinet Office will be submitting the Government’s formal response. Given our independence from Government, I am writing separately to offer the Crown Prosecution Service (CPS) response to the report. We are grateful for the Committee’s careful consideration of the points raised during the inquiry and the conclusions drawn in the report, which cover several thematic strands. We do not seek to repeat wholesale some of the previous points made. In summary however, based on all the evidence which would have been heard as to whether China was an “active threat” to national security at the relevant time, we reached the conclusion that there was no longer a realistic prospect of conviction and if the case were to proceed to court, there was a significant risk that it would not survive a submission of ‘no case to answer’. While some conclusions within the report question the decision we reached, we would reiterate that these were independent professional judgements made by CPS lawyers experienced in prosecuting national security and espionage cases, applying the Code for Crown Prosecutors. The outcome was of course extremely disappointing, but every effort was made to bring this case to court. The recommendations within the report provide an opportunity to prevent a recurrence of some of the issues that arose in the case and our response to the recommendations that engage the CPS is below.