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helenhall5
Apr 48 min read

Artificial intelligence and opportunities for access to criminal justice

Dr James Thornton, Senior Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/james-thornton


In this post, I am going to consider the opportunities of recent developments in artificial intelligence (‘AI’) large language models (‘LLMs’) technology for access to criminal justice. AI LLMs are the technologies behind Open AI’s ‘Chat GPT’, Microsoft’s ‘Copilot’, Google’s ‘Gemini’, etc. All of these systems allow users to request a particular output in response to a prompt, rather like a traditional search engine. However, rather than searching the internet and just returning what is found, these tools put together a response based upon masses and masses of data/documents (the ‘large language’ element) that the system has been ‘trained’ on, in order to produce an intelligent-sounding response. Put crudely, the system is guessing which combination of words sounds best, based upon all its training data. The results, however, can be extremely impressive and, at best, can give the impression one is conversing with an intelligent system or personality. For example, if one types ‘tell me a joke’ into a traditional search engine, one will simply receive a list of webpages with jokes in them. If one puts the same query into an AI LLM, a (potentially original) joke would be retuned, albeit one based upon masses of previous examples of jokes found within its training data.

 

Lately, access to and development of these tools has grown rapidly. Anyone with access to the internet can try them out. In the law context, there have been many horror stories involving, for example, lawyers or litigants in person relying on AI LLMs to do their legal research for them and citing non-existent case authorities in court that the system ‘hallucinated’. Clearly, there are hazards. However, in this post I would like to consider some of the more positive potential of these technologies.

 

In England and Wales, those charged with criminal offences are entitled to represent themselves in court, or to pay a criminal lawyer to do so on their behalf. Those who cannot afford to pay a criminal lawyer from their own money may rely on the Government’s ‘criminal legal aid’ scheme to do so instead. Legal aid is therefore sometimes thought of as the ‘lawyer version’ of the NHS. However, this is a misleading comparison. Although some services, such as legal advice at police stations when arrested and detained, are available free at point of use, much else is not.

 

Instead, particularly at the criminal court stage, often one must apply to the Legal Aid Agency (an agency of the Ministry of Justice) for criminal legal aid. The Legal Aid Agency decides whether to grant this application in accordance with ‘tests’ based upon one’s finances (the ‘means test’) and the ‘interests of justice’ (‘merits test’). The rules on this are both complex and unexciting. However, it suffices to say that plenty of applications can be rejected on either of these bases. For example, an admitted speeding offence, even where this risks the individual being disqualified from driving, potentially losing them their job and causing great hardship to family etc.

 

With a hypothetical offender in this sort of scenario in mind (who cannot or does not want to pay a lawyer to prepare their case for them), I therefore put the following prompt into Microsoft’s Copilot AI LLM:

‘Write me a speech to persuade a judge not to give me a harsh sentence for speeding’

 

What follows is my (pretty rough and ready, so this is not legal advice to be relied upon for real!) analysis of its response, by reference to the relevant Sentencing Guidelines (see below, further reading), which, per s59, Sentencing Act 2020, all sentencing courts are required by law to follow unless contrary to the interests of justice.


The Microsoft Copilot LLM’s response is in italics. My comments are in red square brackets.

 

Your Honor, Esteemed Judge, and Members of the Court,


[Technically incorrect, but an inconsequential error. Speeding offences are only dealt with by magistrates or a district judge. One addresses a district judge as ‘Judge’ and a magistrate as ‘Sir’, ‘Madam’ or (traditionally and/or gender-neutrally) ‘Your Worship’. None of these people are addressed as ‘Your Honour’. However, since ‘Your Honour’ is instead meant to be used for more senior judges, a lay person is hardly going to offend a magistrate/district judge by, effectively, giving them a promotion!]

 

I stand before you today with utmost respect and a sincere desire to address the matter at hand. The charge against me—speeding—is one that I take seriously, and I appreciate the opportunity to present my case


[Potentially a bit over the top, but this clearly does no harm].

 

First and foremost, I acknowledge my mistake. I recognize that exceeding the speed limit endangers not only my life but also the lives of others on the road. I deeply regret any harm caused by my actions


[This may be a relevant factor. Although not mentioned in the sentencing guideline on speeding in particular, the overarching principles sentencing guideline lists ‘remorse’ as a mitigating factor].

 

I would like to present several compelling reasons why I believe disqualification is not the most appropriate course of action:


[Jumping the gun slightly, as disqualification is not necessarily going to be imposed. On the other hand, potentially a wise approach, given that disqualification is always a possibility or, in some cases, required and this is likely to have the greatest impact on the individual (vs e.g. a fine)].


1.     Learning from Mistakes: We all make mistakes. What matters is how we learn from them. My disqualification has forced me to reflect on my behavior and take steps to improve. I have attended defensive driving courses, sought counseling, and committed to being a safer and more responsible driver.


[Again, jumping the gun a bit, since the offender is only at risk of being disqualified at this stage, whereas this response suggests they already have been. The broader point may be a relevant factor though. Although not mentioned in the sentencing guideline on speeding in particular, the overarching principles sentencing guideline lists ‘determination and/or demonstration of steps having been taken to address addiction or offending behaviour’ as a mitigating factor].

2.     Dependence on Driving: Disqualification would significantly impact my life. As a working professional, I rely on my car to commute to my job. Losing my license would jeopardize my employment and financial stability. It would also affect my ability to care for my family and fulfill other responsibilities.

3.     Community Contributions: I am an active member of our community. I volunteer at local charities, participate in neighborhood watch programs, and contribute positively to society. Disqualification would hinder my ability to continue these valuable contributions.

[Addressing the potential hardship of disqualification on the offender, their family and the community more broadly are important elements from the relevant sentencing guideline on ‘totting up’ disqualification (listed below in further reading). This would apply if the individual involved had sufficient ‘penalty points’ on their driving licence already (e.g. from previous speeding or other road traffic offences) to put them at risk of a ban, in accordance with s35 Road Traffic Offenders Act 1988. Such hardship would have to be ‘exceptional’ in order to prevent such a ban, but highlighting all these various effects on various different people could be relevant to arguing that it was].

4.     Safety Measures: I am committed to adhering to all safety regulations. I have installed a breathalyzer ignition interlock device in my vehicle, which ensures that I am sober before driving. This device provides real-time data to authorities, demonstrating my commitment to responsible driving.

[The relevance of this is not clear, given the prompt (it referred to a speeding offence rather than drink driving), but most litigants would probably spot this and delete it. Even if they did not, it is hard to see how it might hurt someone’s prospects. At worst, they may be asked to clarify that ‘no, I wasn’t drunk at the time, I am just mentioning this to show just how dedicated I am to making sure I am a safe driver’ etc.]

5.     Rehabilitation and Reform: Rather than disqualifying me outright, I request the court to consider alternative measures. Probation, community service, or additional education on safe driving practices would allow me to demonstrate my commitment to change.

[A bit vague perhaps, and community service is not an alternative to disqualification here (the maximum penalty for speeding is a fine and disqualification), but rehabilitation is still one of the statutory purposes of sentencing which any court must consider in accordance with s57(2)(c) Sentencing Act 2020, so it is not a totally irrelevant point to raise.]

In conclusion, I humbly ask for your leniency and understanding. I promise to be a better driver, to respect traffic laws, and to prioritize safety above all else. Disqualification would not only punish me but also impact my family, my job, and my community.

[The relevant impact of disqualification on others: family, employer and community, is again highlighted, which may be useful to do if the offender is at risk of disqualification here on the above ‘totting up’ basis].

Your Honor, I implore you to consider the broader implications of disqualification and grant me a chance to prove that I can be a responsible and law-abiding driver.

Thank you for your attention and understanding.

[A respectful enough concluding statement, which probably comes across far better than ‘that’s all’, ‘I’m done now’, or ‘so, erm, yeh, thanks’ etc.]

Clearly, there are issues here. Not least, there a lot of claims here about the adverse effects of disqualification on others that the individual would be expected to provide some evidence to substantiate. Further, the American spellings (‘prioritize’ ‘neighborhood’ ‘honor’ etc.), whilst not a problem in themselves (this would be spoken out loud after all), do suggest the potential for the LLM to rely upon US law, which would be of no assistance to our hypothetical English or Welsh litigant here. That said, whether by luck or design, this was not a problem in this particular example. More generally, a criminal lawyer (or come to that, a law student, in case anyone was getting any ideas for an ‘easy’ way to prepare their practical assessments!) would be expected to produce something much, much better.

 

However, for the defendant who is unable (or unwilling) to pay for a criminal lawyer to represent them in this sort of case, the realistic comparison is what an average lay person could come up with by themselves. On that basis, I think this shapes up considerably better than even what a pretty intelligent and articulate lay person could come up with on their own. It addresses relevant parts of the sentencing guidelines and law and focuses attention on some important and relevant issues. Yes, some of the formalities and phrasing (‘Your Honour’ etc.) come across as a bit amateur, but it is still earnest and respectful.

 

Looking ahead, I am not sure how I feel about this. Personally, I would rather everyone was entitled to free legal advice and representation from a professional criminal lawyer, on an NHS-style model, even for this sort of (relatively trivial) charge. However, in the interests of dealing with the world as it is, rather than how I would like it to be, the potential for this to help those in trouble is interesting, particularly as this is the level of technology we are at now. If growth continues at the pace we have seen recently from this baseline, the potential is great, for better or for worse.

 

Further Reading

Dan Milmo ‘Two US Lawyers fined for submitting fake court citations from ChatGPT’ (The Guardian 23 June 2023) https://www.theguardian.com/technology/2023/jun/23/two-us-lawyers-fined-submitting-fake-court-citations-chatgpt


John Hyde ‘LiP presents false citations to court after asking ChatGPT’ (The Law Society Gazette 29 May 2023) https://www.lawgazette.co.uk/news/lip-presents-false-citations-to-court-after-asking-chatgpt/5116143.article




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1 Comment

wjthornton123
Apr 05

This article reminds me of the author’s incredible book on criminal justice in austerity”

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