On 12 December 2023, four senior members of the judiciary issued the first judicial guidance on the use of AI in the courts in England and Wales.
This followed a consultation process with various judicial office holders. Judges will be allowed to use ChatGPT to perform some of their tasks provided they follow the guidance on how they are being permitted to use it. This guidance comes after a number of reports where AI is already being used in the judicial system and the cautionary tales of lawyers in other jurisdictions relying on fake cases caused by AI's "hallucinations" and other chatbot disasters. There is nothing in the guidance to suggest that we are any closer to having AI decision-making by the courts. This might be a relief given the lack of confidence some practitioners currently have in the accuracy of the functionality and the risk of error. That said, this marks the first step in the future of how the judiciary intends to work with AI to support its function.
What does it say?
There is nothing particularly surprising in the guidance. It refers to the need to uphold confidentiality and privacy and the risk of inaccuracies and bias in using any AI tool. It recognises the limitations of AI tools, explaining the risks attached to the process of how they generate output. It positively identifies areas where it could be usefully deployed including summarising large bodies of text, writing presentations and carrying out some administration texts including composing emails. It is not recommended for the purposes of legal research or legal analysis so we are clearly a long way from AI generated judicial legal reasoning.
It includes pointers which may alert the court to the fact that material has been produced using AI chatbots and where it may be appropriate to enquire what checks for accuracy have been undertaken. This is particularly in the context of unrepresented litigants who may be relying solely on material generated by AI tools.
As the guidance acknowledges, other AI tools are already successfully used in the court particularly in the context of electronic disclosure. The message its therefore very much an embrace of new technology but with a warning to judges to be vigilant about the risk of false information being produced both through their own use of these AI tools and the use of other court participants. The guidance recognises AI's value stating that "Provided these guidelines are appropriately followed, there is no reason why generative AI could not be a potentially useful secondary tool".
This guidance is described as the first step in a "suite of future work" to support the interactions of the judiciary with AI so we can expect more such guidance in the future as generative AI technology develops. It is a clear demonstration of the continuing adaptability of the judiciary and the courts to an ever increasing use of technology in all its forms – albeit with some caution.
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To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes and Investigations team.
