As reliance on AI becomes increasingly embedded in modern life, the way in which we use these systems is also shifting. Now not only used to access information, AI chatbots are often used interactively, to seek advice and other assistance through a series of iterative prompts.
The recent Court of Appeal decision in R v FGD[1] confirms that the use of AI technology in this way is firmly excluded from the court room, particularly in the context of witness coaching. In this case, a witness inputting material into an AI chatbot to “help” prepare their evidence constituted impermissible witness coaching.
The use of AI in R v FGD
The case concerned an allegation of rape. The complainant, C, was the only prosecution witness. Disclosure of C’s phone was ordered during their cross-examination on a separate issue, It became apparent, upon the review of her phone, that C had used AI to prepare her evidence.
Although C’s specific prompts were not known, the disclosure revealed several pages of text with a summary and “24 highly pertinent questions” and suggested answers, organised under headings including “On what happened that night”, “On Consent and Capacity”, “On Your Behaviour After”.
First instance decision ordering a stay of proceedings
Having been made aware of C’s use of AI, the defendant applied to stay proceedings for abuse. The application was made on the basis that C had been coached by AI. The Crown appeared to agree.
The Recorder referred to the Court of Appeal’s earlier decision in R v Momodou, which dealt with a large-scale disturbance at an immigration centre. [2] A number of detainees had been charged with violent disorder and the prosecution’s witnesses largely comprised detention custody officers (DCOs). Prior to the trial taking place, a group of DCOs had received “training” from solicitors instructed by their employers. It was an agreed fact during the trial that the training offered “was wholly inappropriate and improper”. The trial judge also gave firm directions on the matter, concluding, in unequivocal terms, that “there is no place for witness training in our country, we do not do it. It is unlawful.”
Accepting that C had been coached, and given the Crown’s apparent agreement to a stay, the Recorder concluded that it would be impossible for the defendant to receive a fair trial.
Issue on appeal: could the trial process have sufficiently minimised the prejudice to the defendant?
The Crown appealed the stay, advancing the overall submission that the prejudice arising from C’s use of AI could be adequately addressed by the trial process. The Crown identified various steps that the Recorder could have taken: for example, adjourning the trial to allow defence counsel to investigate the AI documents, excluding C’s evidence, exhibiting the AI documents for the jury and by the issuing of robust directions.
Counsel for the defendant referred to C being the sole prosecution witness, submitting that the exclusion of her evidence would have simply resulted in the same outcome. Further, counsel submitted that a robust direction would have been insufficient given the AI answers went “to the heart” of C’s evidence. A jury would not, therefore, be able to determine the extent of AI’s influence on C’s evidence.
Held: prohibition against witness coaching is paramount (but a stay of proceedings an exceptional measure)
The Court of Appeal agreed with the Crown. Although the prohibition against witness coaching was fundamental, the court emphasised that a stay of proceedings was an exceptional measure of last resort. Indeed, referring to Momodou (in which the trial judge declined to stay proceedings despite the witness training), the court considered that the robust and somewhat unusual directions (described as “broad-ranging, stinging criticism”) were sufficiently curative, and approved on appeal.
Although the court strongly discouraged the use of AI by witnesses when preparing their evidence, it considered that this was precisely the kind of case where the trial process could adequately minimise the arising prejudice. C’s evidence-in-chief had been taken by a pre-recorded video interview shortly after the initial complaint and there was other contemporaneous evidence in the form of text messages C had sent to friends. The evidence for which C had been coached could, accordingly, be ring-fenced to their evidence under cross-examination. Further, the AI material could have been put before the jury for them to assess C’s overall credibility and reliability, accompanied with a robust direction per Momodou.
Key takeaways
- This case is a helpful reminder that witnesses ought to be specifically warned that the use of AI to prepare evidence may be seen as coaching and may jeopardise the proceeding.
- Aside from a stay, the court warned that there may be other unforeseen consequences, which may affect complainants, in particular. Namely, the sharing of sensitive information in a public domain and the imposition of potentially wide-ranging and intrusive disclosure orders with respect to a witnesses’ device.
- Of note, the court referred to the Civil Justice Council’s consultation regarding the use of AI in civil proceedings. It recommended that a similar review be undertaken by the National Police Chiefs Council, the Crown Prosecution Service and the Criminal Procedure Rules Committee. It may well be that further regulation is forthcoming in this space.
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