The Attorney General has blamed the collapse of the alleged Chinese spying case on “out of date” UK espionage laws which he said were “not fit for purpose”.
Lord Hermer said prosecutors had been working in “good faith” to secure a conviction against Christopher Cash and Christopher Berry, but the Official Secrets Act 1911 posed a “very significant problem”.
The Government’s top law officer said he had “no doubt” the case would have gone to trial if legislation had been updated during the period of alleged offending between 2021 and 2023.
Appearing before Parliament’s Joint Committee on National Security Strategy (JCNSS) on Wednesday, Lord Hermer said the inclusion of the term “enemy” in the Act threw up difficulties for prosecutors.
He said: “Standing back in this case, where’s the problem? What is it, because I think we should all be concerned to try and identify what lessons can be learnt.
“I’m clear in my mind that certainly one very significant problem here was the Act. The Act wasn’t fit for purpose, it was out of date.”
Lord Hermer said the passage of the National Security Act 2023 eliminated this challenge, requiring merely for it to be proved that “information was being passed to a foreign power”.
He told the committee: “Speaking frankly, I don’t understand why it took Parliament so long to pass that. Had that Act been in force at the relevant time for this case, between (2021-23), I have no doubt that the prosecution would have proceeded to trial.”
He urged against concluding that the collapse of the case had been “farcical” or a “mistake”.
Lord Hermer said: “It is easy, particularly when we are all so disappointed about the outcome of this case, it is a little easy to kind of jump to conclusions that may prove to be unfair.
“Now I don’t think that mismatch need be categorised as a mistake or farcical.
“You’re absolutely right to be looking at it, but I wouldn’t rush to say that. These are all people working incredibly hard to try and get this prosecution over the line.”
Mr Cash, a former parliamentary researcher, and Mr Berry – who both deny wrongdoing – had been accused of passing secrets to Beijing.
But the case was abandoned when the Crown Prosecution Service (CPS) decided it did not have enough evidence to secure a conviction.
Lord Hermer has said he had no role in the decision to drop the prosecution, arguing it would have been “contrary to our constitutional values” for him to have interfered with the move.
He said he had expected the prosecution would go ahead until a meeting on September 3 with Stephen Parkinson, the Director of Public Prosecutions (DPP), at which he was informed the case would be dropped.
Lord Hermer told the committee he “engaged in a discussion” with the DPP to “understand his decision” but did not “intervene in the case or give any direction” to Mr Parkinson.
Nor did he inform other Cabinet ministers until the CPS had informed the police and the defendants that the case would be discontinued.
The committee will also hear evidence from Cabinet Office minister Darren Jones.
In written evidence, Mr Jones said no minister or special adviser had any involvement in the provision of evidence by deputy national security adviser Matt Collins.
Attention has focused on Mr Collins’s statements, with the CPS saying his refusal to explicitly call China a “threat” or “active threat” to national security meant the prosecution could not continue.
On Monday, Mr Collins said he had provided evidence of a “range of threats” posed by Beijing but had not described the country as a “generic” threat because that was not the position of the Tory government in power at the time of the alleged offences.
On Tuesday, the JCNSS published a letter from Lord Alex Carlile KC that strongly criticised the DPP and the CPS.
Lord Carlile, a former criminal barrister and independent reviewer of terrorism legislation, said the DPP had made “an incorrect decision” in concluding there was insufficient evidence to prosecute the case.
He said Mr Parkinson “failed to assess the evidence correctly” and, in any case, should have charged Mr Cash and Mr Berry with attempting to commit espionage if he was still in doubt.
Lord Carlile concluded these were “major mistakes and have damaged confidence in the Crown Prosecution Service”.
Tuesday also saw Labour MPs vote down an attempt by the Conservatives to force the Government to release correspondence relating to the case.
Cabinet Office minister Nick Thomas-Symonds said it was in Britain’s interest to “protect” the material sought by the Tories,” prompting shadow home secretary Chris Philp to accuse Labour of voting to “carry on the cover-up”.
