Nothing Secret About It – What Do We Now Know About The Chinese Spy Case? A Legal Analysis Without The Politics!

On 7 October 2025 the Director of Public Prosecutions (DPP) wrote¹ to the Home Affairs and Justice Committees, expanding on the CPS decision to withdraw the April 2024 espionage charges under section 1(1) of the Official Secrets Act 1911 (OSA) against Christopher Berry and Christopher Cash, the CPS having indicated the previous month that it had insufficient evidence to meet the threshold required to bring a prosecution.

The DPP was satisfied that the decision to charge the case was correct at the time it was made in April 2024, but this changed following the Court of Appeal decision in R v Roussev² (the DPP called it a High Court decision), and so further evidence was required. Efforts were made to obtain new witness statements, but none of them (in the CPS' view) appears to have sufficiently addressed the material point: the threat China posed to national security – discussed further below.  The DPP noted that once it became clear that the relevant evidence was not forthcoming, the case could not proceed to trial. Mr Berry and Mr Cash were therefore acquitted, and entirely correctly so.

In a bid to draw a line under things, the Government has now published a set of three witness statements made by Matthew Collins, the deputy national security adviser, in support of the prosecution case.  

Whilst key details and evidence in this matter continue to emerge, the decision of the CPS to end the case - and ultimately it was, on any view, a CPS decision - remains opaque and difficult to understand in its own terms given what we know now, and especially in light of its decision to proceed initially. 

The alleged espionage

Mr Cash was a former parliamentary researcher and director of the China Research Group (CRG), whilst Mr Berry worked as a teacher in China.  

According to the first witness statement provided by Matthew Collins, SO15 (the Counter Terrorism Command of the Metropolitan Police) assessed that the Chinese state recruited Mr Berry as an agent and directed him to use Mr Cash as a sub-source with access to the CRG, the Parliamentary estate and to at least two senior Members of Parliament. This operation was managed by "Alex", a Chinese state agent, who worked for an organisation alleged to be a front for the Chinese Intelligence Services (Ministry of State Security).  

Mr Berry was tasked by "Alex" to obtain information and analysis about the inner workings of the British political system, primarily, about topics which were directly/indirectly useful to the Chinese state. This included asking Mr Cash directly for information. Mr Cash's position as Director of the CRG gave him access to senior Members of Parliament, including the Chair of the Foreign Affairs Select Committee (Alicia Keams MP) and her predecessor in that role (Tom Tugendhat MP).  Information obtained by Mr Berry, particularly that dealing with China-related policies, was passed on to "Alex" via voice notes and written messages on an encrypted messaging application, and attaching reports, quotes and/or photographs.  

The information and analysis said to have been passed on in breach of the OSA included:

• MP's personal and political activities, including confidential information about political appointments; 
• Sensitive information regarding the UK government's position on China-related business, such as the Government having little interest in investigating Huawei's role in fixing Russia internet services;
• Sensitive information on general UK government activity regarding China, such as the CRG briefing Rishi Sunak MP on his China policy; and 
• MP activity regarding Taiwan, including a 'secret' meeting between Taiwanese officials and British MPs. 

Some of the information passed to "Alex" was confirmed to also be in the possession of a senior CCP leader. Matthew Collins' second witness statement provides more information about the senior CCP leader, who is understood to be Mr Cai Qi, the current first-ranked member of the Secretariat of the CCP and the director of the CCP General Office. 

Who is the enemy?

Under s1(1) of the OSA, an espionage offence is established where "a person, for any purpose prejudicial to the safety or interests of the State.... obtains or communicates 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".  

The first of Mr Collins' three witness statements was prepared in December 2023³, several months before the charging decisions were made. This witness statement outlined why, in his view, the conduct of Mr Cash and Mr Berry was prejudicial to the safety or interests of the UK, and why the material passed on would be directly or indirectly useful to the Chinese state.  

Returning to the decision to end the proceedings, the DPP has stated that the decision to charge the defendants in April 2024 remains correct. On the basis that any prosecution decision required consideration of the "Full-Code Test" pursuant to which a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect, the question therefore arises, what changed as a result of Roussev such that further evidence was required?  

It appears that following his letter earlier this month, the DPP had discussions with members of Government,⁴  and explained his interpretation of Roussev, a case which considered the meaning of the term 'enemy' under the OSA. The DPP says this case narrowed the scope of the term by adding a "current threat" requirement, and so the CPS had to produce evidence that China represented a current threat to national security at the time the offences were alleged to have been committed. This interpretation of the Court of Appeal decision is difficult to follow. The Roussev decision noted expressly that "enemy means the same thing now as it did in the years before the First World War", and if anything, appears to advance a broader test: there was no reason why the definition "should not include a country which represents a current threat to the national security of the UK" (emphasis added).  

With this in mind, it is unclear why further evidence was so critical to the continuation of the prosecution. 

In any event, Mr Collins' second and third witness statements⁵ go some way towards outlining the threat that China posed to the UK, including the following:  

"The Chinese Intelligence Services are highly capable and conduct large scale espionage operations against the UK to advance the Chinese state's interests and harm the interests and security of the UK. China's espionage operations threaten the UK's economic prosperity and resilience, and the integrity of our democratic institutions."  

"Between 2021 and 2023, the UK Government publicly articulated a number of concerns about the long-term strategic challenge that China poses to the UK under the Chinese authorities, including the increasing Chinese espionage threat posed to the UK".  

It remains unclear why these statements did not satisfy the CPS requirement but we can infer that the CPS was seeking a particular form of words, ultimately not provided by Mr Collins. However, now having sight of some of the evidence provided, it seems peculiar that – as some commentators have put it - CPS chose the 'nuclear' option of withdrawing its case.  (The reality is of course that there is only one proper option where a prosecutor feels there is insufficient evidence, which it clearly did here; stop the case.)

Innocent until proven guilty?

When explaining the decision to withdraw the case, the DPP noted that the CPS does not normally provide a detailed public assessment of the evidential factors relevant to cases it can no longer pursue (because – entirely correctly in our view and with the potential consequences only too obvious in light of what is now happening - it is thought to affect the confidence of witnesses coming forward to assist with prosecutions). However, it was said that Government briefings on the evidence in this case created an unusual situation and so the DPP could provide further context.  

One further consequence is that, in the febrile atmosphere surrounding the UK's relationship with China both in context of the UK's national security and its relationship with the US and the EU, the publication of the statements and the dissection of CPS decision-making has resulted in the appalling vista of the presumption of guilt of both defendants. As at least one of the suspects has explained, reporting and public comments infer that both Mr Cash and Mr Berry were presumed guilty of the offences but for the CPS's inability to evidence the definition of 'enemy' under the OSA. Whilst it is stated throughout that both men denied the allegations, the evidence against them has been laid out in forensic detail but without it being properly tested at trial and without either suspect having had an opportunity to defend themselves. The impression given in the public debate is guilt except for that one factor. 

This is a perversion of the criminal justice system, and a perfect example of the importance of maintaining the integrity of criminal proceedings. It is intrinsic to the proper administration of justice that evidence is considered by a jury in a strictly forensic manner under clear directions of law by a judge, and without parallel consideration in the political sphere.  

The decision by the Government to publish witness statements in a case of this nature is unusual to say the least. Once the trial collapsed, the CPS noted "the statements were provided to us for the purpose of criminal proceedings which are now over...the material contained in them is not ours, and it is a matter for the Government, independently of the CPS, to consider whether or not to make that material public". Ultimately, the Government decided to do just that and that has led, or at the very least exacerbated, a debate based on the presumption of guilt. Evidence of what remains suspected is largely treated as proven misconduct in public discourse. This appears to be a paradigm example of how material produced for the criminal process when released into the public domain damages defendants who cannot realistically defend themselves as they might at trial. As Christopher Cash remarked, the statements made by Mr Collins are "completely devoid of the context that would have been given at trial".

The authors here hope this will be the last example of this being done in what is essentially a dispute between prosecutors and witnesses about what the latter are or are not prepared to say, with a view to each party defending its own position. Although in withdrawing a case it felt did not meet the necessary criteria it was acting entirely properly as an impartial deliverer of justice, the CPS role in seeking to defend its position hardly supports the traditional stance in the English courts that 'the prosecution wins no victories and suffers no defeats'.  

Underpinning the 'enemy' issues and regardless of whether espionage was being undertaken by or on behalf of the Chinese Government, one key question at trial would surely have been whether the nature of the material said to have been supplied by Mr Berry and Mr Cash was of the necessary quality to fall within the ambit of the OSA. Mr Collins' statement explained that none of the information obtained by the suspects and passed to 'Alex' was protectively marked, but went on to outline why, despite this, the information was prejudicial to the safety and interest of the UK and provided China with a statical or strategic advantage. 

A document or piece of information which does not speak for itself (either by its content being obviously and plainly a 'secret' and of use by an enemy, or by a protective marking), may suggest that it is not of the character to which the OSA ought to apply.  This is a point that both suspects would surely have taken at trial and is another reason not to presume the position is as the prosecution contended.  Whether an English jury would have considered the material in question met the threshold for an OSA prosecution remains a question that will now never be answered. In sum, Mr Berry and Mr Cash appear have swapped the uncertainty of a jury trial and the chance to plead a well-argued case with an outcome in which they are, in fact, not guilty of a crime but, by many, presumed to have committed one. 

Not yet the end of the road 

Witness statements have now been published, but this has not had its intended effect. Rather than putting matters to bed, it has sparked yet further questions. The DPP has been asked to provide a further explanation for dropping the charges, and evidence continues to be drip-fed into the picture - reporting published this weekend suggested that Mr Berry was stopped carrying an amount of cash, believed to be given to him by "Alex". Formal inquiries into this trial collapse have also been announced, held by the Joint Committee on the National Security Strategy and the Parliamentary Intelligence and Security Committee. With that, the case continues to rumble on. In law the position remains simple: the CPS didn't consider the evidential threshold was met and so, despite it not being obvious why it changed its mind (having initiated the criminal proceedings in 2024), there was no case to proceed.

1. chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://committees.parliament.uk/publications/49641/documents/265425/default/
2. https://caselaw.nationalarchives.gov.uk/ewca/crim/2024/808?query=%5B2024%5D+EWCA+Crim+808
3. https://assets.publishing.service.gov.uk/media/68f0022ca8398380cb4ad140/Statement_1.pdf
4. https://committees.parliament.uk/publications/49812/documents/266992/default/
5. https://assets.publishing.service.gov.uk/media/68f0024082670806f9d5e131/Statement_2.pdf; https://assets.publishing.service.gov.uk/media/68f002502adc28a81b4ad149/Statement_3.pdf

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