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FGD, R. v
Summary of Court of Appeal (Criminal Division) Judgment
Factual and Procedural Background
The appeal concerned a prosecution application for leave to appeal under section 58 of the Criminal Justice Act 2003 against a trial judge's mid-trial order staying proceedings as an abuse. The underlying trial related to an allegation of rape. The Complainant and the Respondent were known to one another and had previously had casual consensual sex; the Complainant alleged non-consensual intercourse on the night in question and was the sole prosecution witness. After cross-examination at trial, the Complainant produced screenshots from cloud storage; the prosecutor applied to recall the Complainant and the defence sought a full download of the Complainant's phone. A download was ordered. The download revealed documents (referred to in the judgment as "the AI documents") containing a summary of the Complainant's recollection and a list of cross-examination-style questions with suggested answers. The Complainant said they had "put stuff into AI to help me prepare myself for the court." Defence counsel applied to stay the proceedings as an abuse on the basis that the Complainant had been coached (the application was made under the first limb of abuse identified in Maxwell). The trial judge (Judge Hay) concluded the material amounted to coaching, found no adequate remedy, and stayed the proceedings. The Appellant (the prosecution) sought leave to appeal under section 58; upon notice of appeal and the usual undertaking the jury was discharged.
Legal Issues Presented
- Whether the trial judge was correct to stay the proceedings as an abuse of process on the basis that the Complainant had been coached by AI such that a fair trial for the Respondent was impossible (the first limb of the abuse jurisdiction in Maxwell).
- Whether the trial process could have provided remedies or measures (for example adjournment, recalling the Complainant, exclusion of evidence, robust directions, half-time submissions) sufficient to address any prejudice arising from the Complainant's use of AI, rather than requiring a stay.
Arguments of the Parties
Appellant's Arguments
- Attorney Jarvis accepted the AI documents amounted to some form of forbidden coaching but submitted the Recorder had erred in concluding a stay was the only remedy.
- He argued the prejudice could be addressed by trial measures: adjournment and investigation, discharging and re-empanelling a jury if necessary, excluding the Complainant's evidence, recalling the Complainant for cross-examination on the AI documents, a half-time no-case submission, or robust directions to the jury.
- He urged that a stay is only appropriate where the trial process cannot address the prejudice.
Respondent's Arguments
- Attorney Whitehouse submitted that, having considered potential steps, the trial judge reasonably concluded none would answer the unfairness; excluding the Complainant's evidence or a successful half-time submission would in effect end the prosecution because the Complainant was the only prosecution witness.
- He argued robust directions could not cure the unfairness because the AI documents went to the heart of the Complainant's evidence and it would be impossible to assess how much influence they had on the Complainant's testimony.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Maxwell [2010] UKSC 48 | Defines two limbs of abuse of process; first limb concerns cases where a fair trial is impossible. | The defence relied upon the first limb of Maxwell to apply for a stay; the Court considered whether the trial process could address the prejudice under that limb. |
| Momodou (Henry) [2005] WL62320 | Authority concerning what is inappropriate in terms of witness coaching; "witness training for criminal trials is prohibited." | The trial judge relied on Momodou as establishing coaching is prohibited and as support for finding the AI documents amounted to coaching; the Court analysed Momodou's reasoning and distinguished the present case on the basis that the AI material was fully recorded and potentially placeable before a jury. |
| R v Momodou and Limani [2005] EWCA Crim 177 | Explains dangers of witness training and emphasises that difficulties created by third-party activities are often capable of being addressed by the trial process. | The Court summarised Momodou's warnings about training but relied on its discussion that trial processes can often address resulting difficulties to conclude the Recorder should have considered specific trial measures before ordering a stay. |
| Richardson [1971] CAR 244 | Cited in Momodou as supporting the principle that witness training/coaching is impermissible. | Referenced as one of the authorities underpinning the general prohibition on witness training discussed in Momodou; used to contextualise the prohibition. |
| Arif, unreported, 22nd June 1993 | Cited in Momodou as supporting the principle that discussions between witnesses should not take place. | Noted as part of the chain of authorities indicating training/coaching is impermissible; the Court relied on the established principle but assessed remedies available in the present case. |
| Skinner [1994] 99 CAR 212 | Cited in Momodou as supportive authority relating to witness training prohibitions. | Included among authorities illustrating the dangers of training; the Court considered those authorities when assessing whether a stay was necessary here. |
| Shaw [2002] EWCA Crim 3004 | Cited in Momodou as authority on the inadmissibility or impropriety of witness training. | Used as part of the established jurisprudence against witness training; the Court treated that principle as settled but examined whether the present case could be managed by trial measures. |
| R v HGF [2026] EWCA Crim 570 | Emphasises that a stay of proceedings is an exceptional, last-resort measure. | The Court cited HGF (through Lady Carr, LCJ) to reinforce that stays are rarely appropriate and should be approached cautiously. |
| R v Ng and O'Reilly [2024] EWCA Crim 493 | Authority cited for the proposition that stays are exceptional. | Relied upon to support the Court's view that the power to stay should be exercised only in extreme cases where trial procedures cannot address prejudice. |
| R v Bater-James [2020] EWCA Crim 790 | Guidance that wholesale examination of a complainant's phone requires a good reason and thereafter proportionate search. | The Court referred to Bater-James when expressing concern about the breadth of the order for a full phone download and noting the need for reasonable lines of enquiry and proportionality in searches. |
Court's Reasoning and Analysis
The Court began from the settled principle that witness training/coaching is prohibited and dangerous, as articulated in Momodou and the authorities cited within it. The Court reviewed the Recorder's ruling and found it did not set out which potential trial measures had been considered and why each was insufficient. The Court emphasised that the abuse jurisdiction permitting a stay is exceptional and that, in many cases, difficulties created by witness coaching can be addressed by the trial process itself (for example by evidence, agreed facts, recalling the witness, exclusion applications, adjournment, directions and submissions to the jury).
The Court analysed the specific factual matrix: the Complainant had given an ABE interview and contemporaneous texts years before trial (evidence-in-chief predating the Complainant's resort to AI), so much of the Complainant's evidence-in-chief appeared uncontaminated. The Court noted that, unlike conventional covert or unrecorded witness training, the AI documents were recorded in full and could be placed before the jury or reduced to agreed facts. On that basis the Court concluded the trial process could, in principle, deal with any prejudice arising from the AI documents.
The Court applied the statutory standard for prosecutorial appeals under section 58 (and section 67) of the Criminal Justice Act 2003, which restricts reversal to rulings that were wrong in law or not reasonable. Finding the Recorder's stay unsupported by consideration of available trial remedies and given the potential to present the AI material to a jury alongside robust directions, the Court concluded the Recorder erred or acted unreasonably in staying the proceedings.
Holding and Implications
RULING: The Court granted leave, allowed the appeal and reversed the Recorder's order staying proceedings. The stay was set aside.
Implications:
- The case is to be relisted before the Resident Judge of the relevant Crown Court within two weeks and re-tried at the earliest opportunity.
- The Respondent's unconditional bail continues.
- The Court emphasised that witness coaching by any means (including AI) is not permitted and warned witnesses to be discouraged from using AI to prepare evidence; use of AI can lead to intrusive disclosure and investigation of electronic material and risks placing personal information into the public domain.
- The Court suggested that The Civil Council, The Police Authority, The Prosecution Authority and The Procedural Committee consider how to address and regulate use of AI in criminal proceedings.
- No new legal principle was established; the decision reversed an exercise of discretion and reaffirmed the exceptional nature of stays, while highlighting that recorded AI-generated coaching may be susceptible to trial management measures rather than an immediate stay.
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