The Chinese Spying Affair
The collapse of the prosecution of Christopher Cash and Steve Berry, both accused of spying on behalf of China, is a damning indictment of the Government’s failure to maintain and correctly apply up-to-date national security laws.
Government has one overriding duty: to ensure the safety and security of the British people, if they are failing in that, as a nation, we need to ask some fundamental questions regarding their competence.
The requirement to have China declared an enemy is poor prosecutorial attention.
They were charged under the 1911 Official Secrets Act (s1) which makes passing information on that may aid an “enemy” an offence. Let’s dig into this.
- OSA 1911 s.1 (“Spying”) requires the “enemy” element
Section 1 criminalises obtaining or communicating information “useful to an enemy” — that phrase is essential for that section.
▸ This section is restricted to conduct “useful to an enemy” and so would fail if the government refused to say China was an “enemy”. The government refused to declare China and enemy, so the prosecution failed.
- OSA 1911 s. 2 (“Wrongful communication”) does not require an “enemy”
This section makes it an offence to communicate or retain restricted information without authorisation, whether or not an enemy is involved. It was therefore available for use without naming China as an “enemy”. - OSA 1911 s. 4 (Attempts/incitement)
Further s. 4 covers attempts and incitement to commit offences under the Act, without needing to prove an “enemy” — because it follows the nature of the underlying offence. Thus, had the Crown charged under s. 2 + s. 4, they could have proceeded without defining China as an enemy. - OSA 1989 ss. 1–3 do not use “enemy” at all
These create “damaging disclosure” offences covering Security & Intelligence (s 1), Defence (s 2), and International Relations (s 3) without mentioning an enemy. The test is damage to UK interests, not intent to aid an enemy. So, if information was passed to China, the 1989 Act could apply whether or not China was classified as a threat or enemy state. - CPS review obligations
CPS guidance: any decision to terminate a prosecution must be carefully recorded and is open to judicial review. A judicial review or Parliamentary inquiry must be a legitimate next step if the CPS dropped the case due to political interference or failure to supply evidence.
Why were they charged under 1911 OSA s. 1? Was the decision driven by prosecutorial overreach, chasing the highest possible charge for prestige, or by political pressure to use a section they knew was bound to fail because they knew the government, concerned with commercial relations, would refuse to declare China an “enemy”?
The 1989 Act is primarily designed for “leak” cases involving Crown servants or contractors, not traditional spying for foreign powers.However, that distinction is administrative, not legal necessity, there is clear argument that the 1989 Act could and should have been used, and is, legally defensible.
The High Court’s 2024 judgment in the Bulgarian espionage case effectively widened the interpretation of ‘enemy’ to encompass any state posing a material threat to national security.
That means the government’s refusal to confirm China as a threat effectively pulled the evidential rug from under its own case. The prosecution could have survived if they had simply declared China a security threat.
Further, if the government’s reluctance to declare China an “enemy” was the entire scaffold of the case, they have, within their powers, the process to apply to the Court to amend the indictment and amend the charges against any person accused of a crime, thus, they could have withdrew charges under OSA 1911 s. 1 and applied either OSA 1911 s. 2 & 4 or OSA 1989 s. 1-3, in fact, they could charge them with counts under each of those sections, no need to declare anyone and “enemy”.
Why did the CPS not undertake a case review before the trial and amend the charges?
Either way, the truth of that decision making tree and the tests applied by the Crown need to be made public and if it was negligence, action taken, if it was political, then different action needs to be taken.
The “Enemy State” Requirement Is Obsolete
The 1911 Act’s wording (“useful to an enemy”) made sense only in the pre-WWI context of imperial military secrecy — dockyards, artillery plans, ship designs, etc.
The OSA 1911 was written before aerial warfare, radio, or even formal intelligence agencies existed. It was drafted in a world where “the enemy” meant a uniformed military opponent, not a complex web of hostile, friendly, or ambiguous actors all conducting espionage through cyber, trade, and diplomacy.
But the United Kingdom today has no declared “enemies”, only states of concern or threat, actors, many of whom are simultaneously trading partners or treaty allies. To prove espionage “useful to an enemy” is conceptually impossible without a declared or obvious war footing. You cannot have an “enemy” under the Act unless Government first makes a political declaration — and that’s exactly what appears to have paralysed this prosecution.
Declaring a state an “enemy” in peacetime is nothing more than political and diplomatic theatre, not a legal necessity, and it hands political leverage to those wishing to suppress prosecutions.
So, where do we go from here?
No prosecution should be brought, stalled, curtailed or otherwise interfered with for political reasons; the law and the evidence must be the only determining factors in any case before the courts.
Declaring any nation an ‘enemy’ when the UK is not at war is diplomatic theatre, not a legal necessity. It hands politicians the power to suppress prosecutions for convenience.
The BDA calls for a full, open judicial inquiry, held in public, not behind closed doors under the guise of ‘security’. Those responsible for this embarrassment must face accountability.
Further, the BDA urges the Crown Prosecution Service to lay fresh charges under the Official Secrets Act 1989, sections 1–3, bringing multiple counts where applicable, and to place a new trial on the docket.
Double jeopardy does not apply in this case.
The prosecution collapsed before verdict, meaning the CPS retains authority to lay new charges using the same evidence under the 1989 and 2023 Acts. The CPS can also demonstrate that the following discretionary bars do not apply:
- The earlier collapse was caused by deliberate or reckless prosecutorial failure; or
- The defendants were subjected to proceedings so flawed that re-trying them would offend fairness or justice.
These are discretionary bars, not absolute ones, and courts apply them sparingly in national-security cases where the public interest in prosecution is high.
Supporting Authority
- R v Carroll [2002] 2 Cr App R 7 — distinction between “same offence” and “same facts”.
- R v Dunlop [2006] 1 WLR 1654 — clarified that only an acquittal bars retrial; discontinuance before verdict does not.
- Criminal Justice Act 2003, Part 10 — sets out exceptions allowing retrial for serious offences even after acquittal (e.g. new evidence cases such as murder, terrorism, espionage).
Thus, even if an acquittal had been entered, a retrial could still theoretically occur with the personal consent of the Director of Public Prosecutions under sections 76–78 of the Criminal Justice Act 2003, where compelling new evidence emerges.
Those who jeopardise the safety and security of this nation cannot be allowed to escape justice, no matter who they are.
Finally, the BDA has drafted the National Information Security Act 2025 — a comprehensive reform replacing the Official Secrets Acts 1911 and 1989 and the National Security Act 2023.
Britain deserves laws that are robust, clear, and unambiguous — statutes that serve the people, protect our nation, and ensure that justice is never again undermined by political cowardice
NISA 2025 Draft V1_4