2nd Report - Espionage cases and the Official Secrets Acts

The Crown Prosecution Service determined that it required specific evidence that China posed an “active threat” to UK national security at the relevant time, following a Court of Appeal ruling known as “Roussev”. It is not within the Committee’s remit to second guess the decision-making and professional judgement of the independent Crown Prosecution Service and First Senior Treasury Counsel. However, we remain unclear as to why the Court of Appeal ruling altered the legal landscape so significantly. (Conclusion, Paragraph 38)

The Deputy National Security Adviser (DNSA) would not describe China as posing an “active threat” to national security at the relevant time. We acknowledge the position from the Crown Prosecution Service that it would undermine their case that China represented such a threat if the DNSA, their central expert witness, refused to characterise China in such terms. (Conclusion, Paragraph 39)

The witness statements provided by DNSA were however clear that China posed a range of threats to the United Kingdom’s national security. In our view it is plain that, taken together, these amounted to a more general active threat to the United Kingdom’s national security. We appreciate the legal argument that these positions are not identical. We regret that common sense interpretations of the wording provided in the DNSA’s witness statements were apparently not a sufficiently strong basis for meeting the evidential requirements the Crown Prosecution Service considered necessary under the Official Secrets Act 1911. (Conclusion, Paragraph 40)

We are surprised that the Crown Prosecution Service considered the evidence available insufficient to survive a submission of ‘no case to answer’ and to be put before the jury. (Conclusion, Paragraph 45)

It is regrettable that the prosecution hinged on the testimony of a Government witness who would not state directly that China posed an active threat to national security at the material time. We acknowledge 48 however the arguments from the Crown Prosecution Service that, once the decision had been taken to rely on the Deputy National Security Adviser (DNSA), it would not have been feasible to seek another witness who would effectively contradict the DNSA’s position. (Conclusion, Paragraph 51) Were there issues with the provision of evidence?

We found evidence of misaligned expectations which contributed to the decision to discontinue the case. In particular, the Deputy National Security Adviser (DNSA) said he was clear from the outset that he would only provide evidence in line with Government policy, whereas the Crown Prosecution Service told us it required evidence on matters of fact. This discrepancy was evidently a key factor in the collapse of the case. The significance was apparently not appreciated until the process was far advanced. (Conclusion, Paragraph 72)

We did not find evidence of deliberate efforts to obstruct the prosecution. The sequence of events nevertheless raises some substantial questions of whether the Government officials and counsel working on the DNSA’s witness statements could have found an alternative formulation which remained in line with the government’s overarching position at the time. This would have made clear that China posed an active national security threat. We note that the Crown Prosecution Service made extensive and repeated efforts to obtain evidence to this effect. It also raises the question of whether the Crown Prosecution Service was right to conclude that the legal tests remained unmet. (Conclusion, Paragraph 73)

We do not seek to unpick any of these professional judgements. In future, however, it is essential that improved communications, common sense, clarity on strategic objectives and appropriate flexibility can be applied to ensure finely balanced judgements ultimately favour the public interest. (Conclusion, Paragraph 74)

Many of the problems in this case stemmed from a lack of clarity over the evidence. Given the complexity of national security cases we recommend establishing a requirement for a formal case conference within 30 days of such charges being brought, in order to identify potential evidential issues from the outset. Depending on the nature of the case, this should include the Crown Prosecution Service and its investigators; the Government witness and their legal representation; Counsel (if appointed) and if appropriate the relevant Law Officer in their superintendence role. Subsequent regular case conferences should be added as required. (Recommendation, paragraph 75) 49

Some processes were excessively protracted, with extensive to and fro. From the outside some aspects look shambolic. The process for securing the DNSA’s second witness statement took nearly eight months, for example. The reason for this delay remains obscure to us. (Conclusion, Paragraph 76)

We recommend that timely acquisition and delivery of evidence should be made a priority in future. In response to this report the Government should confirm what steps it will take, and commit to implementation within six months. (Recommendation, paragraph 77)

We remain uncertain about the capacity in which the DNSA was giving evidence, and the extent to which civil servants can act as witnesses of fact on matters that are not made explicit by government policy. (Conclusion, Paragraph 78)

We recommend the Government clarifies this issue in response to this report. (Recommendation, paragraph 79) Questions of improper influence

We have considered the circumstances of the meeting held on 1 September and note the proximity of the Crown Prosecution Service decision to discontinue the case two days later. We did not find evidence of improper influence or deliberate efforts to obstruct the prosecution. We note in particular that First Senior Treasury Counsel had already concluded more than a week earlier that the Deputy National Security Adviser’s evidence was insufficient to proceed to trial. (Conclusion, Paragraph 93) Role of the Attorney General

We are satisfied that the current Attorney General acted with constitutional propriety. We are also satisfied that there was nothing inappropriate about the processes for obtaining Law Officer consent to prosecute, or the subsequent process for informing the Attorney that the case was being discontinued. (Conclusion, Paragraph 115)

We regret that opportunities were not taken to inform the Attorney General of the situation in greater detail earlier on and request his assistance insofar as would be constitutionally appropriate. (Conclusion, Paragraph 116) 50 Lessons learned

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)

The Cabinet Office and Security Services must conduct an internal exercise to consider scenarios in which the Government might be asked to provide diplomatically sensitive evidence under the National Security Act 2023. They must then work with legal partners, including the Crown Prosecution Service, to formalise principles for handling sensitive cases and communications protocols to help mitigate the risk of future misaligned expectations. This should be completed within six months. (Recommendation, paragraph 126)

The Cash/Berry case suggests there may be value in providing a degree of top-level support to the Deputy National Security Advisers (DNSAs), particularly if they face significant public exposure. We suggest the Government uses the case conference recommended in paragraph 75 as a waypoint to sense check who—aside from the Government’s bound witness—should provide top-level grip. (Conclusion, Paragraph 134)

We acknowledge and commend the important work led by the National Security Adviser and his Deputies. We appreciate that there is deep experience and co-operation across the Cabinet Office leadership. We nevertheless recommend that the Government reviews the nature of responsibilities, line management and support structures for the DNSAs. This would help provide assurance that the DNSAs are not left unduly exposed in any future high-profile incidents. (Recommendation, paragraph 135)

The Government should also review the adequacy of high-level support and advice which is made available to bound witnesses in sensitive national security cases. The Government should outline the findings of that review to the Committee within six months. (Recommendation, paragraph 136) 51