Judge warns use of AI in court could result in Scots being jailed

Sheriff John MacRitchie wrote about the dangers of relying upon the cutting edge software in a judgement issued on Thursday at Kirkcaldy Sheriff Court

A judge has warned AI users they could face contempt of court proceedings after the technology invented fake legislation and fictitious references in a case he heard.

Sheriff John MacRitchie wrote about the dangers of relying upon the cutting edge software in a judgement issued on Thursday at Kirkcaldy Sheriff Court. Sheriff MacRitchie told of how he presided in an action brought by landlords called Your Home Partners. The firm were seeking £5,000 rent arrears from two former tenants at one of their properties.

The judge writes of how when the case called at Kirkcaldy, Your Home Partners told the sheriff they were relying upon legislation called the Interest on Debts (Scotland) Act 1985. The company also told the court that they were relying upon decisions made by tribunals who had heard similar cases.

Officials in Kirkcaldy repeatedly told Your Home Partners that the sheriff court wasn’t the correct place to hear the case and it should raise an action at a first tier tribunal. The company was acting by itself and hadn’t instructed professional lawyers. However, the firm kept on relying on legal authority which resulted in Sheriff MacRitchie allowing the matter to be argued before him.

Sheriff MacRitchie said he was unable to find the legislation or the cases which Your Home Partners were using to support their legal arguments. Court staff contacted the tribunals concerned and were told the cases hadn’t existed. Your home Partners also later conceded the cases and legislation didn’t exist and it had used AI in preparing its case.

Sheriff MacRitchie wrote that he had to consider whether Your Home Partners had wasted court time and were therefore in contempt of court. In the judgement issued on Thursday, the judge made mention to an English case involving Haringey Law Centre and Haringey Council.

In what is thought to be the first time the matter has arisen in Scots law, Sheriff MacRitchie wrote about how AI use had the potential to clog up valuable court time. In recent years, Scots courts have been working through a back log of cases caused by the pandemic.

He wrote: “The lodging of false legal references has the potential to obstruct justice. Indeed, my understanding of the position was so clear that I would not have assigned a discussion in this matter had it not been maintained by the claimant that there existed these referenced cases said to support a view contrary to my understanding.

“Accordingly, I have given consideration as to whether I am required to commence contempt of court proceedings. There is no reason why that duty should not also apply to lay persons, as otherwise the management of cases in courts and therefore the course of justice could be significantly obstructed.”

In the Haringey case, lawyers for the law centre challenged the London borough over its alleged failure to provide its client with temporary accommodation. During these proceedings, its lawyer cited phantom case law five times. Suspicions were raised when the solicitor defending the council had to repeatedly query why they could not find any trace of the supposed authorities.

It resulted in a legal action for wasted legal costs and a court found the law centre and its lawyer, a pupil barrister, were negligent. The barrister denied using AI in that case but said she may have inadvertently done so while using Google or Safari in preparation for a separate case where she also cited phantom authorities. In that case she said she may have taken account of AI summaries without realising what they were.

In the judgement about the case, English judge Dame Victoria Sharp said there were “serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused” and that lawyers misusing AI could face contempt of court proceedings and police investigation.

In the judgment published on Thursday, Sheriff MacRitchie decided not to hold Your Home Partners in contempt of court. The judge decided that the evidence showed that Your Home Partners actions didn’t “knowingly” attempt to “interfere with the administration of justice” by wasting court time.

He wrote: “However, there was a degree of recklessness in the claimant delaying verifying that the references produced by Artificial Intelligence were genuine, until only after the relative submissions were lodged. There is a fine line in this instance between whether the claimant and its individual partners, even as lay persons, have shown contempt for the court by not reasonably checking that such references were genuine before using them in this manner, or otherwise.”

The judgement tells of how Your Home Partners’ bid to recover the alleged rent arrears in the sheriff court was dismissed. Sheriff MacRitchie said the law states that the correct place to pursue the action is a specialist tribunal.

He wrote: “The claim is therefore dismissed as the sheriff court has neither jurisdiction nor competence to make the order sought. What this claim does highlight, is the dangers of a reckless reliance on Artificial Intelligence by any party without verifying that the same is genuine, and the potential for a party being found in contempt of court in circumstances such as these, even if done in good faith.”

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