AI: Witnesses should not use it
The Civil Justice Council (CJC) is to continue exploring “proportionate transparency” on the use of AI in preparing witness statements for trial but will not extend it to other documents.
The decision on the way forward following a consultation issued in February comes as the Court of Appeal recommended a similar investigation for criminal cases.
The consultation proposed that litigators should have to declare that they did not use AI in preparing witness statements for trial.
But otherwise, so long as documents such as statements of case and skeletons bore the name of the legal representative who was taking professional responsibility for them, they should not have to declare whether they were created with the aid of AI.
A CJC statement on the outcome of the consultation reported “a high degree of alignment across respondents” on the latter.
“Professional responsibility frameworks are considered sufficient to govern appropriate use.”
There were “different views” on whether additional safeguards or disclosure requirements were needed for witness statements, however.
“A consistent theme across responses is the importance of preserving the authenticity, integrity and personal recollection of the witness. Concerns have been raised about the potential for AI tools to reshape, embellish or otherwise influence evidence in ways that may not be immediately apparent.
“However, the working group has also recognised that many of these concerns intersect with existing principles governing the preparation and testing of evidence, rather than being novel issues created by AI.
“As such, careful consideration is required to determine whether existing mechanisms – such as statements of truth, disclosure obligations and cross examination – are sufficient.”
The group’s “direction of travel” was towards “introducing proportionate transparency in relation to expert evidence” and “recognising the distinct and evolving challenges posed by litigants in person”.
The final report should be published later in 2026.
The Court of Appeal’s criminal division has addressed the issue in considering a prosecution appeal against the ruling of Recorder Hay in Lewes Crown Court, part-way through a rape trial, to stay proceedings as an abuse.
This was because the phone of the sole prosecution witness included a summary record of what they recalled of events on the night in question, followed by a series of questions in the form of a cross-examination, together with suggested answers.
The witness said they had used AI to help them prepare for the hearing and the recorder decided that this amounted to impermissible witness coaching.
The Court of Appeal said it was not clear what steps the recorder had considered when reaching his conclusion that there could not be a fair trial.
Lady Justice May said: “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.”
The witness had given their evidence in chief via a pre-recorded ABE (Achieving Best Evidence) interview shortly after they first complained to police and “long before resorting to AI to prepare for cross-examination”.
This meant only their answers in cross-examination had 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 [the defendant].”
Further, while the ordinary danger surrounding witness training was that it happened behind closed doors, here it “could be placed in its entirety before the jury, or summarised by agreement and put into agreed facts”.
As a result, the court reversed the ruling and ordered the trial be relisted at the earliest opportunity.
King LJ acknowledged that “more and more people are using AI for all manner of things” but said “all witnesses, whether for the prosecution or defence, should be firmly discouraged from resorting to the use of AI to prepare for giving evidence”.
She continued: “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.”
Referencing the CJC consultation, the judge suggested 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”.
May LJ added: “This case is unlikely to be an isolated example.”
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