Source: Canadian Lawyer Magazine

Proceedings in Rex v FGD at Lewes Crown Court were stayed after a “broad and intrusive” examination of the complainant’s phone revealed documents produced by artificial intelligence in response to prompts. Recorder James Hay had stayed the trial and described witness training as banned in all jurisdictions, while also describing the complainant’s evidence-in-chief — recorded shortly after the alleged incident — as “uncontaminated”; he had held that the defendant “could not have a fair trial.”

The Court of Appeal (Lady Justice Juliet May, Justice Martin Griffiths and Judge Martin Picton) allowed the prosecution’s appeal, holding that Hay erred in declaring a fair trial impossible and reversing his decision. May’s lead judgment observed that everything the AI “coach” produced for the complainant was fully recorded and could be placed before the jury or summarised by agreement, meaning the trial process could address any potential prejudice. The appeals court ordered a retrial to be listed “at the earliest opportunity,” encouraged counsel to explore trial remedies when applications to stay for abuse arise, and suggested that the National Police Chiefs Council, the Crown Prosecution Service and the Criminal Procedure Rule Committee may wish to consider how to address and regulate AI use in criminal proceedings, noting such cases are unlikely to be isolated.