The recently abandoned case against two individuals who were due to stand trial on charges of spying for China is by no means the first prosecution to hit the buffers because of national security considerations.

In 2007 the director of the Serious Fraud Office was forced to abandon a high profile investigation into bribery allegations arising from the Al-Yamamah arms sales contract with Saudi Arabia when the government of that country threatened to end security sharing arrangements with the United Kingdom if the investigation continued. 

In a judicial review the High Court in England quashed the director’s decision holding that he should not have given into what was effectively blackmail by a foreign government. The Judicial Committee of the House of Lords reversed the High Court decision. They held that it was for the government and not the courts to determine where national security interests lay.

In the China case the director of public prosecutions has gone on record (in a letter to the chairs of the Home Office and Justice Committees dated 8 October 2025) as saying that he abandoned the case at the eleventh hour because the UK government (HMG) had, over a period of many months, failed to provide him with evidence that China was an active threat to UK national security during the period in which the alleged offences were committed in 2022/2023. 

There is one detail of the DPP’s position which invites further scrutiny. He says that he was obliged, by the judgment in a case decided after his original decision to prosecute in this case (Ivanov and Roussev v R 2024 EWCA Crim 808 - the Bulgarian spy case) to seek the additional evidence from  HMG. This is difficult to understand because the court in Ivanov did not  alter the law in any way on the question of whether China was, in the context of that case, an enemy of the UK within the meaning of the statutory charge brought against the accused, namely contravention of section 1(1)(c) of the Official Secrets Act 1911. We are left wondering what evidence the DPP was going to rely on to prove this key issue at the stage he decided to prosecute.

Turning now to HMG’s response to the DPP’s position, according to reports which quote the prime minister on this HMG say that it was not possible to offer the evidence sought by the DPP because as at the relevant dates China was officially designated by the then Conservative government in a government policy document called the Integrated Review of Security, Defence Development and Foreign Policy 2021 as a “systemic competitor”. By clear inference, according to this position, it was not possible to offer evidence that China posed a threat to national security at the relevant time.

This is clearly unsustainable for at least two reasons. First, the Integrated Review was a wide ranging policy document. It most certainly did not address the key question in the prosecution namely whether, by way of state sponsorsoned espionage or cyber attacks or otherwise, China was in fact a direct threat to UK national security. HMG is in no way constrained by the label applied in 2021 from offering up evidence on these possible national security threats from China. On several occasions covering the relevant period HMG and its security services published evidence based information which describe these threats. See also the Intelligence Committee of Parliament report on China July 2023.

Second, in the Ivanov case in which six Bulgarian nationals were subsequently convicted of spying for Russia, the Court of Appeal in a preliminary ruling said that the question of whether a country poses an active threat to UK national security at any given time is one of fact and degree and is for the jury to assess. It follows that the 2021 label could never be decisive of the issue and that the relevant evidence which HMG might have offered would have been factual evidence on the nature and effects of any threats posed by Chinese state sponsored activity. The 2021 label of systemic competitor is irrelevant. According to the DPP the fatal defect in his case was the failure of HMG to furnish a statement saying in terms that China was a threat to national security. That position appears to miss the point made by the Court of Appeal. It would have been for the jury to decide that issue on factual evidence presented to them.

In the Al-Yamamah case we have an unusually detailed account of the way in which the decision to discontinue the investigation was reached with input from the director of the Serious Fraud Office, the Foreign Office, the prime minister (Tony Blair) and the UK ambassador to Saudi Arabia. This comes from the lengthy law reports of the judicial review. As to the real reasons for the collapse of the present case all we have at present are scant details to be gleaned from the competing press releases. All we can say with reasonable certainty is that the reason offered so far by HMG does not pass muster.