In March 2023, two Britons, Christopher Cash, 30, and Christopher Berry, 33, were arrested on suspicion of spying for China. However, nothing happened for a year, which some found strange. Finally, in April 2024, they were charged with passing on “politically sensitive information”, contrary to the Official Secrets Act 1911 (which was subsequently replaced by the National Security Act 2023).
The two men, who once taught together in China, were charged under a provision that criminalizes communicating “to any other person any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy” (sect.1.b). A guilty person faces between three and seven years’ imprisonment.
To establish the offense, prosecutors must prove the existence of an “enemy”, a term not defined in the Official Secrets Act. In British law, a legal “enemy” is not a fixed concept, and is defined, if at all, by the specific legislation in question. An example is the Trading with the Enemy Act 1939, which describes an “enemy” as a state at war with the United Kingdom, any individual or entity resident in enemy territory, or anyone controlled by an enemy.
As the Crown Prosecution Service (CPS) spent a year mulling over the charges, they must have considered if the ingredients of the offense could be proved, including whether the suspects were dealing with an “enemy”. In the absence of any relevant definition, they needed to seek assurances from the British government that a witness would be made available to testify that China was in fact an “enemy”. By law, a prosecution under the Official Secrets Act requires the personal consent of the attorney general, who in early 2024 was the Conservative Party’s Victoria Prentis. Although she gave her consent, it is unclear if she first satisfied herself that prosecutors had their tackle in order (but it appears not).
According to The Guardian (Sept 20), the case upon which the CPS intended to rely alleged that Cash, the director of the hawkish “China Research Group” of Conservative members of parliament (whose founding chairman was the Beijing-hostile Tom Tugendhat), assisted by Berry, a China-based researcher, passed on “politically sensitive information” to a “Chinese agent”. He, in turn, passed it on to a “senior member of the Chinese Communist Party and a Politburo member”. This was deemed “prejudicial to the safety or interests of the UK”, because the information in question was “directly or indirectly useful to the Chinese state”.
Both Cash and Berry protested their innocence. They claimed they were, in effect, the victims of a stitch-up by MI5 (the British internal intelligence service). Although Cash accepted he passed on information to Berry, he insisted it was in good faith, and comprised material already in the public domain about how Parliament and British politics worked. It also contained his own analysis of who he thought would win the next general election.
As for Berry, his lawyer, John Armstrong, maintained that the 34 reports at the center of the case against him were written for a corporate client in China planning to expand its holdings in the UK. He called the reports “a confection of open-source material from various sources”, with Berry “offering his thoughts on contemporary politics”. He added that any information Berry received from Cash was unclassified Westminster gossip. This presumably explains why China’s embassy in London described the allegations as “entirely fabricated and malicious slander”.
By contrast, the Conservative governments of Boris Johnson, Liz Truss, and Rishi Sunak are best remembered for inane and unnecessary confrontations with China that led nowhere. A mature relationship will benefit both countries, and Starmer must stay focused on the bigger picture. He should, therefore, ignore the ideologues, remain true to himself, and prioritize the long-term interests of the British people
In any event, the trial of the two national security suspects came to a grinding halt last month. Although it was scheduled to begin at Woolwich Crown Court in October, the CPS aborted it on Sept 15, to the fury of the opposition Conservative Party, the wider anti-China lobby and MI5. The current chairman of the “China Research Group”, Alicia Kearns, who was to have been a witness at the trial and had hoped to finger Cash, was particularly upset, announcing “the cops were equally disappointed”. She added “something is very amiss”.
However, the CPS explained it had kept the case “under continuous review”, and that the “evidential standard” was “no longer met”. By this, it meant there was no reasonable prospect of securing convictions on the available evidence (the basic prosecutorial test). This was because the CPS was unable to obtain testimony from security officials that China could be defined as an “enemy” when the alleged offenses occurred, meaning an essential ingredient of the crime was missing. This was unsurprising, as the policy of the last Conservative government — which was applicable when the charges were laid — was to call China an “epoch-defining and systemic challenge”, but not an enemy (the current Labor government uses similar terminology). This should have been apparent from the outset, yet charges were nonetheless brought.
However, the director of public prosecutions, Stephen Parkinson, in a letter to parliamentarians (Oct 7), explained that several weeks after Berry and Cash were charged in 2024, the High Court, in a Bulgarian spy case, had ruled that “enemy” for the purposes of the Official Secrets Act includes “a country which represents, at the time of the offense, a threat to the national security of the UK” (The King vs Roussev and Others). Although this was hardly rocket science, every effort was made to obtain the required evidence, but to no avail.
Parkinson said, “Notwithstanding the fact that further witness statements were provided, none of these stated that at the time of the offense, China represented a threat to national security.” This fully vindicated China’s stance that the allegations were both “fabricated and malicious”.
By any yardstick, the prosecution of the two men was ill-judged. The former attorney general of England and Wales, Dominic Grieve, told the BBC, “There simply seems to have been a muddle.” By this, he meant that, when the case started, “there was a failure to get to grips with what might be required to prove it in court”. In other words, the case was not properly evaluated, and basic prosecutorial safeguards were, for reasons unknown, bypassed.
Although the inappropriateness of the prosecution is now manifest, the political opponents of the prime minister, Sir Keir Starmer, have sought to make political capital out of the fiasco. They claim he engineered the collapse to avoid harming Anglo-Chinese relations, with the Conservative Party leader, Kemi Badenoch, even declaring “Starmer lied” (for which she produced no evidence). Her predecessor, the veteran Sinophobe Sir Iain Duncan Smith, a co-chairman of the rabid Inter-Parliamentary Alliance on China, was apoplectic, saying the official explanation “does not hold water” (which, if nothing else, shows he, like Badenoch, is not legally qualified).
However, as any prosecutor worth his salt can see, the case was fatally flawed, and it collapsed under the weight of its own fatuity. As Starmer explained, the CPS took the decision to stop the prosecution “independently”, and it obviously had little choice. His spokesman described as “completely false” the claim that he exerted “pressure” to kill the case.
As a former director of public prosecutions himself, Starmer also pointed out that “You have to prosecute people on the basis of what was the state of affairs at the time of the offense.” However, the situation then — as now — was that China, far from being an enemy, wanted cordial relations and constructive engagement with the UK. However much Britain’s anti-China forces want to queer the pitch, whether through half-baked prosecutions or otherwise, sight must not be lost of these admirable objectives.
Also significant is MI5’s role in poisoning Sino-British relations. It has fostered a climate in which innocent people are persecuted for being China-friendly or for having China links. It is largely a law unto itself, and its director-general, Sir Ken McCallum, is something of a Cold War throwback. In 2023, for example, he told his fellow Five Eyes spooks that there was now a “sustained campaign” of Chinese espionage on “a pretty epic scale” with British businesses being at particular risk.
With a mentality like this, nobody should be surprised that McCallum regards anybody in the UK who is interested in promoting closer ties with China as fair game. He must have been as disappointed as any of the China hawks when the trial collapsed, if not more so.
One early victim of this mindset was a successful solicitor, Christine Lee Ching-kui, who was born in China but grew up in Britain and harbored affection for both places. Her British Chinese Project, which promoted bilateral relations, was commended by the then prime minister, Theresa May, at a Downing Street ceremony in 2019. However, her work was anathema to MI5, which, in true McCarthyite fashion, accused her of being a suspected Chinese agent who indulged in “political interference activities”. But smears are not evidence, and Lee was never prosecuted. Nonetheless, she suffered huge reputational damage (as intended), with her son even losing his job.
If, moreover, McCallum wants to go after anybody, let him clamp down on the Hong Kong national security fugitives, including Nathan Law Kwun-chung, Finn Lau Cho-dik and Chloe Cheung Hei-ching, who are actively engaging in China-hostile activities on British soil that imperil Anglo-Chinese relations (to the UK’s detriment).
Those are people worthy of McCallum’s attention, and MI5 should stop hounding decent Chinese people living peacefully in the UK. It is not a crime for anybody to want to help British companies navigate the Chinese market or try to protect Hong Kong’s interests. The sooner this is explained to McCallum the better.
It is, therefore, high time for MI5’s oversight body, the Joint Intelligence Committee, to clip McCallum’s wings. Indeed, MI5’s annual budget is reportedly in the region of 4 billion British pounds ($5.3 billion), and he undoubtedly wants more. Like bureaucrats everywhere, he is an empire-builder (working out of lavish London premises with over 5,000 employees), and he undoubtedly sees the playing of the “China card” as central to securing more influence, more money and more status.
Moreover, MI5 will also have had a hand in the charging early last year of Bill Yuen Chung-biu, the office manager of the Hong Kong Economic Trade Office in London, Peter Wai Chi-leung, a former special constable and security operative, and Matthew Trickett, a former soldier (who has since died in mysterious circumstances). They reportedly kept tabs on a fugitive national security suspect believed to be conducting nefarious activities inimical to China from a London base.
It is little wonder that China’s London embassy accused the authorities of wantonly harassing, arresting and detaining Chinese people in the UK under the pretext of national security. If MI5 sees its role as persecuting Chinese people living in the UK, spreading anti-China propaganda, and sabotaging British foreign policy objectives, it has clearly lost its way, and the sooner it is held to account by those who foot its bills the better.
In the meantime, following the ignominious failure of the prosecution of Cash and Berry, the least the CPS can do is to review the prosecution of Yuen and Wai to see if, as seems likely, their prosecution is also unmeritorious.
After all, Cash and Berry were put through hell for no good reason, and Yuen and Wai should be spared similar suffering. As Cash explained, “The last two and a half years have been a nightmare for me and my family”, with his arrest having “destroyed my life and the career I loved”. Berry’s lawyer, John Armstrong, said he was now a self-employed financial analyst, and was “just trying to pick up the pieces”. Miscarriages of justice like this should not be allowed to happen anywhere, least of all in the UK, once seen as the cradle of the law. Even if, as in this case, justice finally prevails, the victims are scarred for life and may never fully recover.
When Britain’s chancellor of the exchequer (finance minister), Rachel Reeves, visited Beijing in January, she said she wanted a long-term relationship with China that was “squarely in our national interest”. Although the UK has stuck to that path, this has infuriated the hard right and the security establishment. However, cooperation in pursuit of shared objectives is the only sensible way forward.
By contrast, the Conservative governments of Boris Johnson, Liz Truss, and Rishi Sunak are best remembered for inane and unnecessary confrontations with China that led nowhere. A mature relationship will benefit both countries, and Starmer must stay focused on the bigger picture. He should, therefore, ignore the ideologues, remain true to himself, and prioritize the long-term interests of the British people.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
