Alleged Spying Case: Role of Attorney-General’s Office

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Thursday 23 October.

“I thank the right honourable gentleman for raising this Urgent Question, following the deeply disappointing collapse of the prosecution case concerning two individuals charged under the Official Secrets Act 1911.

It is a bedrock constitutional principle that prosecutions in this country are free from political influence. This means that it is prosecutors, not politicians, who decide which cases to prosecute; it is prosecutors, not politicians, who decide what evidence will be used at criminal trials; and it is prosecutors, not politicians, who decide when cases should be dropped.

Although individual decisions are made independently and protected from political influence, the Crown Prosecution Service as an organisation is superintended by the Attorney-General by virtue of the Prosecution of Offences Act 1985. The details of what that means in practice are set out in the framework agreement between the law officers and the Director of Public Prosecutions, signed by the then Attorney-General under the previous Government. The framework makes it plain that the role of the CPS is to take independent decisions on individual cases referred to it by the police and other criminal investigation authorities based on the evidence available and the public interest in pursuing a prosecution, which accords with the Code for Crown prosecutors.

There are a limited number of offences, including those under the Official Secrets Act, for which Parliament has made statutory provision requiring the Attorney-General’s consent to prosecute in individual cases. In doing so, the law officer acts in a quasi-judicial capacity independently of government and applies the same two-stage test as the code. Consent was given by my predecessor on 3 April 2024. Following that date, no law officer intervened in the case at any stage; it would have been wholly inappropriate for them to do so.

Once consent is given, the law officer plays no ongoing role. If the prosecutor contemplates dropping the case because of evidential reasons, they are required to inform the Attorney-General of the decision as soon as it has been taken. That is what happened in this case. The DPP and senior Treasury counsel have already confirmed that the decision to offer no evidence in this case was made without any political influence, and the Cabinet Secretary, Director of Public Prosecutions, Attorney-General and Chief Secretary to the Prime Minister will all give written and oral evidence to the Joint Committee on the National Security Strategy this and next week.

The ongoing disinformation around the collapse of this case is now distracting from the most important issue that we should all be focused on, which is how the Government can work across parties and with the UK law enforcement community to ensure that Chinese espionage and interference is not successful in the UK”.

My Lords, the Attorney-General has a duty to superintend the prosecution agencies and to be consulted about sensitive and high-profile cases. The practice for cases that are likely to be dropped, but of which the Attorney-General was initially informed, is that the Attorney-General is advised in advance of the risk of them being dropped. The public were initially informed that the Attorney-General had been told in August that the China spy prosecution case was at risk, and the Government have now stated that the Attorney-General met with the Crown Prosecution Service on 1 September. As the statutory superintending Minister for the CPS and the DPP, what action did the Attorney-General then take to satisfy himself that all reasonable evidential avenues had been explored before the decision to discontinue the case was taken? Can the Attorney-General confirm that his office reviewed the witness statement submitted on behalf of the Government?

I thank the noble and learned Lord for his question. May I just correct a few facts? I was not informed by the DPP on 1 September; I was informed on 3 September. Secondly, and this is an important constitutional point, in our constitutional framework politicians play no role whatever in prosecutions. I was not consulted by the Director of Public Prosecutions; I was informed by the Director of Public Prosecutions after he had reached his decision. That is an important distinction in our constitutional framework which is codified in the framework agreement between my office and the CPS, the current framework agreement being that signed by one of my predecessors, the right honourable Suella Braverman. That dictates that in cases such as this where the prosecution starts with the consent of a law officer, law officers must be consulted if the grounds for dropping a case are public interest grounds, but it draws a contrast where the grounds, as here, are evidential grounds. In those circumstances, the framework makes it plain, quite properly, that the Attorney-General is to be informed, not consulted, as soon as possible after the decision has been made. I hope that answers the noble and learned Lord’s question.

My Lords, some 50 years ago last month, I was junior in a trial that took place at Mold Crown Court, prosecuted by the then Attorney-General, Sam Silkin—they earned their spurs in those days by prosecuting in court. An ex-RAF pilot from Valley had knocked on the front door of the Russian consulate, trying to sell them secrets about the Vulcan bombers. The Russians picked up the phone and phoned the Metropolitan Police, and he got nine years. We were not at war with Russia at that time, but then, there was no war in 1911 when the word “enemy” was coined in the statute. By 1913, the courts had extended the word to include a potential enemy. Will the noble and learned Lord kindly tell us again who the Attorney-General was who consented to this prosecution? Was there evidence of the passing of any classified documents or information, as opposed to tittle-tattle, between these two idiots? Was there evidence of money changing hands? Without such evidence, Senior Treasury Counsel, who had the responsibility of presenting the case to the jury, would inevitably advise that the prosecution was weak and might very well fail. Nothing seems to have been discovered in the subsequent 13 months and the case was, very properly, dropped. I have no inside information, but is that analysis correct?

Consent was given by a law officer under the previous Government to this prosecution. I hope the noble Lord will forgive me if I do not go into the evidential details in this case. The decision was made by the independent CPS. In this case, the Director of Public Prosecutions also received the assistance of First Senior Treasury Counsel, our most experienced criminal barrister, who advised in the run-up to the intended trial and who will be giving evidence, together with the DPP, in the next hour or so before the JCNSS, where they will no doubt be able to give further evidence of the materials they considered. My experience is of the grave disappointment felt by the hard-working teams in the Crown Prosecution Service—including the Director of Public Prosecutions—and in the National Security Secretariat, all of whom were disappointed that the prosecution could not proceed.

The noble and learned Lord will know that the Court of Appeal recently stated that an “enemy” includes a country which poses a threat to the national security of this country. Is it the Government’s view that the People’s Republic of China does pose a threat to the national security of this country?

I will deal first with the Roussev case and the difficulties the Crime Prosecution Service faced in bringing this prosecution. The noble Lord is quite right that in Roussev, which was a rare case for the courts to look at—the meaning of “enemy” under the 1911 Act—it was said that it can include a threat to national security. That, however, will be a matter of fact and degree, and as the noble Lord will know full well, the jury still has to be satisfied that the country in question is an enemy. The threat is a question of fact and degree, but it still has to be an enemy. At the time relevant to this prosecution, which was between 2021 and 2023, the official position of the Government was that China was not an enemy. Your Lordships’ House will immediately see some of the difficulties that a prosecution would have faced if this had proceeded to trial.

As to the threats China poses to national security, this Government, as indeed did the last Government, set out fully the nature of the threat that it perceived China posed—that is, Mr Collins in his witness statement—as well as the need for this country to engage with China. But this Government will always put national security first.

My Lords, following on from that answer, the Prime Minister has said repeatedly that the prosecution required evidence that the information was linked to an enemy, based on the policy of the previous Government. The Director of Public Prosecutions on Friday said the test was not what the previous Government were prepared to say about China, but whether it was an active threat as a matter of fact. Which of them is right?

There can be no doubt that for the purposes of an offence said to have been committed between 2021 and 2023, where the test is whether that was provision to an enemy, the question is, were they deemed an enemy during that relevant period, between 2021 and 2023? I do not understand the DPP to be suggesting to the contrary.

My Lords, there seems to be a lot of confusion about this at the moment. I respectfully direct attention to what the Director of Public Prosecutions said in a letter to the joint committee last week. He pointed out that on 14 August there was a meeting between the counsel team, the CPS lawyer and the Deputy National Security Adviser in which questions were asked to see whether the prosecution could proceed. The Deputy National Security Adviser told them that he would not state in evidence, if asked, that China posed a risk to our national security at the material time. Of course, as has been said already, the material time was not today; it was the time of the alleged offences, which, as it happens, was under a previous Administration. So, the view of the previous Administration on that was critically important. That is very important to understand, because criticisms have been made of the Crown Prosecution Service which seem to me to be entirely unjustified.

I entirely agree with my noble and learned friend. The test remained the statutory test: was China, beyond reasonable doubt on the criminal standard, an enemy between 2021 and 2023? The immediate difficulties will be obvious if I tell the House what the official position of the Government was during that period. The then Foreign Secretary, Mr Cleverly, said the following in his Mansion House speech—which was delivered a year before the men in these cases were charged—and obviously set out the official position of His Majesty’s Government:

“I’m often asked to express”

the UK’s policy towards China

“in a single phrase, or to sum up China itself in one word, whether ‘threat’, or ‘partner’, or ‘adversary’. And I want to start by explaining why that is impossible, impractical and—most importantly—unwise.”

One can immediately see, even though there was a CPS team who obviously wanted to get this prosecution across the line, the real difficulties because of the 1911 Act, which the Law Commission in 2017 said was no longer fit for purpose. Those difficulties give an insight into the problems faced by the Crown Prosecution Service.