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ON APPEAL FROM THE CROWN COURT AT LEWES
Recorder Hay CP No.47CC1317321
No.47CC1317321
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LADY JUSTICE MAY DBE
MR JUSTICE GRIFFITHS
and
HIS HONOUR JUDGE PICTON
(Sitting as a Judge of the CACD)
Between:
Rex | |
- and - | |
F.G.D |
APPLICATION BY PROSECUTION FOR LEAVE TO APPEAL UNDER S.58 CRIMINAL JUSTICE ACT 2003
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MR P JARVIS KC appeared on behalf of the Appellant
MR C WHITEHOUSE appeared on behalf of the Respondent
J U D G M E N T
Lady Justice May:
Introduction
This case raises interesting contemporary issues concerning the use of AI by a witness before giving evidence in a criminal trial. It is a prosecution appeal against the Recorder’s ruling, part-way through trial, staying proceedings as an abuse. Upon the prosecution giving notice of its intention to appeal, accompanied by the usual prosecution undertaking, the jury was discharged.
We have excluded from the headnote and this judgment any detail which could render the case identifiable, enabling this judgment to be published without waiting for the conclusion of any re-trial. We shall use neutral pronouns (they/their) when referring to the complainant; as this is a prosecution appeal the respondent’s name is anyway anonymised by use of random initials in the listing of the appeal and in the headnote of this judgment.
Relevant facts
The trial concerned an allegation of rape. The complainant (C) and respondent to this appeal (R) were known to each other. They had had casual consensual sex before, although C had ended their sexual relations some weeks previously. On the night in question, C was under the influence of alcohol and drugs. The prosecution case was that C would not have consented to sex with R, that C was incapable of consenting to sex in any event and that C’s condition was such that this would have been obvious to R. The defence case was that R had not penetrated C, alternatively, if he had, C had consented.
C was the only prosecution witness. During cross-examination, C was challenged about where C had been at a particular time on the evening in question. When C went home after court, C apparently went through their cloud storage and produced a series of screen shots to show where they had been, and when, that night. At court the next day, when prosecution applied to recall C to put the new material before the jury, the defence asked to see a full download of C’s phone. It seems that there may have been a history of disclosure issues respecting relevant phone material. In the event the Recorder ordered the phone to be downloaded. The trial was adjourned for some days whilst this was done. As the Recorder’s disclosure ruling was not in issue on this appeal we have not been provided with a transcript of his reasons for ordering the download.
The download revealed two documents which contained a summary record of what C had recalled of events on the night in question, followed by a series of questions in the form of a cross-examination of C’s account, together with suggested answers. In short, it appeared to be a documentary record of witness-coaching. C was asked who they had been communicating with, to which C responded: "I had put stuff into AI to help me prepare myself for the court". Although the defence did not accept that the documented questions and answers were generated by AI, as opposed to being contained in a communication from a real person, this appeal has proceeded on the basis that the documents were generated by AI in response to prompts from C. We do not know the nature of those prompts. We shall refer to the documents in this judgment as “the AI documents”. A flavour of the personal nature and tone of the AI engagement with C comes from the introductory section, which reads:
“Before we go through this I want to check in with you again. This section – this specific night – is the heart of the case and going through it in this level of detail is genuinely hard. Please make sure someone is with you or available to you today.
What I am going to do first is pull together everything you’ve shared about that night into one clear picture, so that you can see how strong and consistent your account actually is. Then I’ll go through every question a defence lawyer might ask with suggested answers.”
There then follows several pages of text containing the promised summary, together with 24 highly pertinent questions and suggested answers, gathered under such headings such as “On what happened that night”, “On Consent and Capacity”, "On Physical Evidence” and “On Your Behaviour After”.
Defence application to stay and the Judge’s ruling
Having considered the contents of the AI documents, defence counsel, Mr Whitehouse, applied to stay proceedings for abuse. He submitted a written skeleton argument in support of his application. The application was made under the first of the two limbs of abuse identified in Maxwell [2010] UKSC 48, namely that a fair trial was impossible. Mr Whitehouse’s key concern can be summarised as: no amount of cross-examination could adequately identify what evidence was properly C’s and what was somebody else’s. Prosecuting counsel’s written response to the application essentially submitted that any difficulties arising from the AI documents could be dealt with in the course of trial.
The transcript of the abuse hearing begins with a lengthy discussion between the Recorder and prosecuting counsel as to whether the AI documents were properly described as witness training or coaching, concluding with this exchange:
"RECORDER: I am satisfied on what I have seen, having worked through those questions with you, Mr Lamb - about what would be coaching and what would not be permitted - that this is evidence of coaching, whether or not done by AI or someone else.
MR LAMB: I understand, and of course I respect your decision on that part. Then, it is a matter for your Honour, how you proceed on that basis. I can see that perhaps in the light of that decision, there’s only one way forward for the case, forgive the phrase, to proceed, essentially by not proceeding ... "
The Recorder expressed the view that, once there had been coaching, he could not see what remedy was available. He went on to make an order staying proceedings, explaining his decision as follows:
" ... for all of the reasons set out, very helpfully, in detail by Mr Whitehouse, in his application to stay proceedings, as an abuse of process, as well as all the reasons elaborated upon today, and having heard from Mr Lamb, and Mr Lamb at every stage conceding on behalf of the prosecution, what would not be appropriate in terms of witness coaching, and every aspect of what makes coaching inappropriate, potentially amounting to an attempt to pervert the course of justice, that I am satisfied that on everything that I’ve heard, having read the [AI documents], I am quite satisfied that the contents of that email in combination with the notes amounts to coaching. I have read and considered the case of Momodou (Henry) [2005] WL62320 about what is inappropriate in terms of coaching in criminal trials where, at paragraph 61, it concludes, “So we repeat, witness training for criminal trials is prohibited.” But having considered this with great care, overnight, and this morning, for all the reasons set out by Mr Whitehouse, it would be impossible to give [R] a fair trial, [C] having been coached in the way set out in great detail…. and I therefore stay these proceedings as an abuse of process.”
Arguments on this appeal
Leading prosecuting counsel, Paul Jarvis KC, appeared for the Crown on this appeal. Mr Jarvis submitted that to the extent that previous counsel may have conceded that witness coaching via AI inevitably and irretrievably resulted in the trial being unfair, such that a stay was the only appropriate consequence, then that concession was wrongly made and the Recorder erred in accepting it. He argued that it would only be impossible for R to have a fair trial where the trial process itself was unable to deal with the prejudice occasioned to R by the matter about which he complains, here the use by C of AI to prepare for cross-examination. Mr Jarvis suggested a number of steps which the Recorder could have adopted to deal with the prejudice to R caused by the late revelation of C’s use of AI: there could have been an adjournment to allow the defence further time to consider and investigate the AI documents, if necessary discharging the jury and starting the trial again. The defence might have applied to exclude C’s evidence, or the jury could have been given copies of the AI documents and C could have been recalled to be cross-examined about them. Depending upon C’s answers, there may have been grounds for a half-time submission of no-case. Alternatively, there could have been robust directions to the jury. These were all ways by which the trial process could have dealt with the AI material. Mr Jarvis did not attempt to suggest that the AI documents did not amount to some form of forbidden witness coaching.
Mr Whitehouse, for R, argued that the Recorder had considered what steps could be taken, concluding that there were none which would answer. He pointed out that excluding C’s evidence would have arrived at the same result, since C was the only prosecution witness and there was no other evidence; a successful half-time submission of no case would likewise have halted the trial. Mr Whitehouse submitted that even the most robust direction to the jury could not deal with the unfairness since the questions and answers suggested in the AI documents went to the heart of C’s evidence such that it would be impossible for the jury to assess how much influence the documents had had upon that evidence.
Discussion and decision
Witness training is forbidden in all jurisdictions. The dangers of training witnesses on their evidence were succinctly summarised, in the context of a criminal case, by Judge LJ (as he then was) in R v Momodou and Limani [2005] EWCA Crim 177 at [61]:
"There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. (See Richardson [1971] CAR 244; Arif, unreported, 22nd June 1993; Skinner [1994] 99 CAR 212; and Shaw [2002] EWCA Crim 3004.) The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be "improved". These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited."
Momodou concerned events arising from a major disturbance at an immigration centre run by Group 4. A number of detainees, including Momodou and Limani, were charged with violent disorder. The prosecution case depended largely upon the evidence of detention custody officers (DCOs) employed by Group 4. Momodou and Limani were convicted. They appealed their convictions on grounds, amongst others, that some of the DCOs had attended “training” arranged for them by solicitors instructed by Group 4. It was an agreed fact at the trial that the training offered to DCOs was “wholly inappropriate and improper”, an observation which the trial judge had, unusually, specifically directed the jury that he associated himself with. The Court of Appeal noted that the trial judge’s directions on this aspect of the evidence had included “broad-ranging, stinging, criticism”, ending with the judge telling the jury:
"There is no place for witness training in our country, we do not do it. It is unlawful."
The judge had declined, however, to stay proceedings against Momodou or Limani as an abuse (although the report records that he did withdraw the case against one defendant from the jury where "the evidence [against him] largely consisted of witnesses who had been ... trained", no further details are provided).
In dismissing the appeal on this point the court reasoned as follows, at [54] and [55]:
"The steady development of the abuse of process jurisdiction suggests that, notwithstanding that the prosecution or prosecuting authority may be blameless, as a matter of principle, the judge is vested with jurisdiction to order that proceedings should be stayed. The activities of third parties may constitute an abuse of process making a fair trial impossible, and if so, in an extreme case, this discretion is available to be exercised. That said, it has been pointed out time and again that difficulties, even great difficulties, created for the defence are almost always capable of being addressed by the trial process itself. This is usually achieved by evidence or agreed facts which properly inform the jury of the difficulties faced by the defendant. Then, with the benefit of the judge's directions as well as counsel's submissions before its retirement, the jury is well able to appreciate the impact of these difficulties on the proper preparation and conduct of the defence, and to take them fully into account before deciding whether the evidence demonstrates that the prosecution case has been proved. Juries have a strongly developed sense of fairness. Experience shows that they lean over backwards to see that the prosecution does not benefit from and that the defendant is not prejudiced by any unfairness, whatever its source. These considerations should properly inform the exercise by the trial judge of the salutary, but rarely exercised, power to halt a prosecution as an abuse.
Our first and immediate concern is whether there are any grounds for interfering with the judge's decision that the case against the appellants and their co-defendants should proceed. On the information before him when the application was made, the conduct of Group 4 in relation to DCO witnesses, and the potential difficulties created by it, was capable of full explanation before and analysis by the jury. We can find no misdirection by the judge, and none was identified to us, which would justify interfering with his decision that the case should proceed. In the result, his decision meant that all areas of complaint were fully ventilated and put into their proper evidential context before the jury. In our judgment the decision was correct."
The consistent message from the cases is that the power to order a stay is an exceptional measure of last resort. This was emphasised very recently by Lady Carr, LCJ, in R v HGF [2026] EWCA Crim 570 citing R v Ng and O’Reilly [2024] EWCA Crim 493.
Turning to the present case, it is impossible to discern, either from the skeleton arguments which counsel submitted to the Recorder prior to the hearing, from the oral submissions at the hearing or from the Recorder's extempore reasons when granting the stay, what steps the Recorder had considered when reaching his conclusion that there could not be a fair trial. In particular, we would have wished to understand why the Recorder had concluded, if he did, that matters concerning the reliability and credibility of C’s evidence could not safely be left to the jury, where they had been fully appraised of the nature and content of the AI documents accompanied by a robust direction of the type that the judge gave, and the Court of Appeal approved, in Momodou. C’s evidence in chief in this case had been given, in the usual way, via a pre-recorded ABE (Achieving Best Evidence) interview shortly after C first complained to police. On the information we have, C gave that account some years before trial and long before resorting to AI to prepare for cross-examination. Likewise, there were texts to her friends at the time. If this is right, then the whole of C’s evidence-in-chief will have been uncontaminated, leaving only C’s answers in cross-examination to be assessed against the coaching content of the AI documents. In our view, this is precisely the kind of case where the trial process would be well-able to deal with any potential prejudice to R arising from C’s resort to AI in advance of cross-examination. This aspect of the evidence (the uncontaminated nature of C’s evidence-in-chief) does not appear to have been considered by the Recorder in arriving at his decision.
There is this further consideration: an aspect of the ordinary danger surrounding witness training is that it is conducted behind closed doors and not fully recorded, so that it cannot be discovered precisely what has been said, or suggested, to the witness. By contrast, here, all that the AI “coach” provided to C was fully recorded and could be placed in its entirety before the jury, or summarised by agreement and put into agreed facts.
Conclusion
On an appeal by the prosecution under section 58 of the Criminal Justice Act 2003, this court may not reverse a ruling unless it is satisfied that the ruling was wrong in law, that it involved an error of law or principle, or that it was a ruling that it was not reasonable for the judge to have made: see section 67 of the Criminal Justice Act 2003.
For the reasons we have given, we are satisfied that the Recorder erred in concluding that R could not have a fair trial, alternatively that his decision to stay proceedings was not a reasonable decision for him to have made. We can understand why the Recorder fell into this error, given the apparent concession which he understood prosecuting counsel to have made; in future we would encourage counsel on both sides when dealing with an application to stay for abuse explicitly to raise and explore all the ways in which the trial process could deal with any potential prejudice so that the trial judge is able to consider and deal with each separately, when ruling on the issue.
Accordingly, we give leave, we allow the appeal and reverse the ruling below.
There will be the following directions. The case will be listed before the Resident Judge of the relevant Crown Court within two weeks. As the allegations are now of some age, the re-trial should be listed at the earliest opportunity.
We began this judgment by indicating that it raised issues about the use of AI. More and more people are using AI for all manner of things: to answer everyday questions, to apply for jobs or prepare for interviews, to do research in many areas, including the law. The coaching of witnesses in their evidence, by any means, is not permitted. All witnesses, whether for the prosecution or defence, should be firmly discouraged from resorting to the use of AI to prepare for giving evidence. Doing so could run the risk of unfairness up to the point, in an extreme case, where the court may have to consider excluding evidence. Moreover, for complainants in cases involving allegations of sexual misconduct, their use of AI may open up further lines of enquiry, exposing their online activity to an unwelcome, wider-ranging and potentially more intrusive investigation and examination for the purposes of disclosure, than would otherwise have been required. Using AI may also put their personal information into the public domain, in open AI, in a way that they may never have anticipated. Complainants' phones are not routinely subject to wholesale examination; there has to be a good reason – a reasonable line of enquiry – and thereafter a proportionate search, see R v Bater-James [2020] EWCA Crim 790. We asked why, in the present case, there had been such a wide order requiring an entire download of C’s phone. In response we were told that it was made against a background of concern about the adequacy of police investigation of such material, particularly given the last-minute production of apparently piecemeal selections made by C. We were nevertheless left with some concern at the broad and intrusive scope of the order, although we acknowledge that the download produced highly relevant documents bearing on the reliability of C’s answers in cross-examination.
We understand that the Civil Justice Council has just concluded a consultation on requirements for transparency regarding the use of AI in civil proceedings, for instance in the preparation of witness statements. We suggest that, to the extent that they are not already doing so, the National Police Chiefs Council, the Crown Prosecution Service and the Criminal Procedure Rules Committee may wish to consider how to address and regulate the use of AI in criminal proceedings. This case is unlikely to be an isolated example.
THE CLERK OF THE COURT: My Lady, that raises the issue of bail.
MR WHITEHOUSE: My Lady, the respondent has been on unconditional bail.
LADY JUSTICE MAY: That unconditional bail will continue. Thank you.
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