Advocates misleading the courts Part 2

Common law in a time of AI and ‘fake’ citations

The Ayinde ‘fake’ citations case (R (Ayinde) v The London Borough of Haringey [2025] EWHC 1040 (Admin) (3 April 2025) rumbles on, as it must. I provided a preliminary view on my substack here. Further comment comes from eg Richard Moorhead This is not an AI case and David Allen Green A close reading of the "AI" fake cases judgment – Why it is the very plausibility of AI-generated case law that should put lawyers on their guard .

‘Pink tape’ (orse Lucy Reed KC) in the second part of a recent ‘rant’ concludes of Ayinde: ‘Although the judge made no finding that the source of the fakery was the use of AI, and the barrister denied this, it is difficult to think of an alternative explanation’. In a subsequent rant a couple of days later, Pink tape admits Mea culpa: a rather belated clarification to having got an aspect of the law wrong. She concludes: ‘none of my blog posts are intended to contain legal advice. But insofar as they contain useful information I do like to try and make sure they are accurate and not misleading….’.

I am not sure we lawyers have the luxury of such a disclaimer; but that is a subject for another day. (By the way, Lucy, I have looked at your rant. It justifies a longer response from me on another day; but I think your better source for a family courts order for seizure of a device is Senior Courts Act 1981 ss 33 and 34 (both now applied in the family court: SCA 1981 ss 33(3) and 34(5)) and Matrimonial and Family Proceedings Act 1984 s 31J. Rather oddly FPR 2010 r 20.2 to which you refer only refers to s 34. Perhaps rule makers thought r 20.2(1)(c) did the job? And I don’t entirely share your pessimism on legal aid.: an interesting point to analyse in relation to ECF legal aid funding….)

Whether or not the barrister in Ayinde relied on artificial intelligence (AI) the case raises a variety of critical questions about lawyers’ sources and their accuracy. By ‘lawyer’ I mean anyone who writes on law (including court documents); journalists who write authoritatively about law; academics; judges; advocates who appear in court; those who advise HM the King (ie KCs); and any other jurist).

Advocates’ and reliable citation in written documents

The most important of these critical questions is, I believe, whether advocates in a time of AI can always be assumed reliably to cite information to the court or otherwise (to use a wide term: I discuss ‘publication’ and its meaning in law in a later post: see Administration of Justice Act 1960 (AJA 1960) s 12). Central to what follows is the passing on of information to a court; though there may ultimately be a variety of recipients of what a lawyer says.

What is to be done if inaccurate – even untruthful – citation of sources to a court is suspected; or that sources were ‘fake’ as found by Ritchie J in Ayinde. If advocates cannot be relied upon to whom they pass on information – and I take it that hitherto judges have relied upon us – should advocates now be required to annex to their documents prepared for the court a form of statement of truth? And does it make any difference that I am an officer of HM senior courts (I used to be ‘of the Supreme Court’ but, without asking me, Parliament altered my title), where barristers are not?

The general civil proceedings form of statement of truth is provided for in Civil Procedure Rules 1998 (CPR 1998) Part 22. PD22 paras 2.1 and 2.2 says

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

For family proceedings Family Proceedings Rules 2010 (FPR 2010) PD17 para 2.2 says the same thing, save that the family proceedings rule makers prefer to reverse the order of the two sentences. I suspect they intend the meaning to be the same.

Contempt of court: not to tell the truth, recklessly or otherwise

One of the more important – sacred even – jobs which practising advocates have is to look after the common law. One could say the common law is essentially a creature in the hands of practising lawyers. By that I mean: of judges giving judgment; of advocates in court and in preparation for court; and to a lesser degree, perhaps, of those who write on law (in books, journals, blog posts etc: ie anything they intend others to read).

In English and Welsh law there are two forms of substantive law: common law and statute law which overrides all other law which conflicts with it. Statute law is written down, though it sometimes has to be explained – construed – by judges as part of the common law (see recently a couple of Supreme Court cases: CAO v Secretary of State for the Home Department [2024] UKSC (NI) 32, [2024] 3 WLR 847 (23 October 2024) and For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, [2025] WLR(D) 211 (30 April 2025)).

An example of the importance to the common law and of higher courts’ judge’s construction of statute law, can be seen in Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813 (4 May 1976], CA . It is now nearly 50 years old but still extensively cited when judges are working out what Administration of Justice Act 1960 (AJA 1960) s 12 means. This can be seen recently only a month ago in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15, [2025] 2 WLR 815, [2025] WLR(D) 220 (16 April 2025) at [134]). I shall come back to Re F and its importance to legal principle in a later post and in relation to AJA 1960 s 12.

Common law – ‘the books’ – emerges from the case law. This cannot happen if we lawyers – advocates, writers or other jurists – do not carefully check our sources; or if we get the sources plain wrong. Worse still, the common law may be corrupted if we just make up what we tell the court or our readers because we have heard it from someone else, read it in an unreliable book, have been ‘told’ it by a computer – or we have recited the law recklessly.

Citation of a case ‘adverse’ to your client’s case

The near 25-year-old citation of authorities practice direction, Practice Direction of 9 April 2001 (Citation of Authorities) [2001] 1 WLR 1001, [2001] Fam Law 794, was put out by the then Lord Chief Justice (Lord Woolf CJ) with the agreement of the heads of the Chancery and Family Divisions. It includes, as we all know:

4 It will remain the duty of advocates to draw the attention of the court to any authority not cited by an opponent which is adverse to the case being advanced.

To my mind, para 4 has always been one of the most important – if only rarely applicable – aspects of my job as an advocate. We have a duty to ensure that the common law is considered by a court in all its relevant aspects. If advocates do not do this how can the judge be sure the court has got all the relevant law right?

Yes, para 4 of the PD is counter-intuitive; but if you have got a case to trial you must know of ‘adverse authorities’ and be well able to distinguish (ie to tell the court why they don’t apply to your case) them in your case (and see eg Abraham v Jutsun [1963] 1 WLR 658 (23 April 1963), CA. (A funny thing is that my researches for this post have thrown up precisely such an ‘authority… adverse to [my] case’ see the Berry Piling case, shortly.)

And if an advocate is ‘reckless’ in that advocate’s researches?

In Part 1 of this series I cited the Bar Standards Board Code as saying that a barrister ‘must not knowingly or recklessly mislead or attempt to mislead the court’. The Solicitors Regulation Authority Code is not quite the same:

1.4 You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).

For practical purposes my argument here and in Part 3 of this series of posts is that an advocate (solicitor or barrister) must not deliberately mislead the court; but that, so too, an advocate must not ‘recklessly’ mislead or do so by ‘omission’. This will demand in Part 3 my modest understanding of a meaning in law and in this context of ‘reckless’.

I finished my last post with the assertion that ‘The common law does not work where courts are misled, recklessly or not’. This post asks what can judges and courts administrators – Parliament, even – do to support the common law in a time of ‘artificial intelligence’; since surely by any criterion, an accumulation of information so intricate and subtle as the English and Welsh common law depends on an ‘intelligence’ which is anything but ‘artificial’?

Our common law system cannot work if ‘the books’ – the English and Welsh common law – can be treated as fiction, or near fiction, peddled by a computer bot. And if ‘recklessness’ is to be pleaded as mitigation for misleading, let the threshold be low indeed if recklessness can be treated as conduct of litigation; or careless writing by a law writer.

Contempt and reckless citation

The penalty for failure to comply with a statement of truth is contempt of court proceedings with permission of the court (as applicable). The text-book on which I rely for the law on this is Arlidge, Eady & Smith on Contempt (with supplement) 5th Ed, Sweet & Maxwell (2017) (Arlidge, Eady). A first supplement is dated July 2019.

Arlidge, Eady do not seem to contemplate that advocates might not tell the truth (though the behaviour of ‘professional advocates’ is dealt with at 10-139 etseq especially 10-160: cases such as Meek v Fleming [1961] 2 QB 366 (26 June 1961), CA and Saif Ali v Sydney Mitchell & Co [1980] AC 198 (2 November 1978) may call for review in Part 3). Arlidge, Eady deal with the subject of a false statement of truth in at 11-61 and with recklessness as to whether a statement, with statement of truth, is true or not. In their current edition they refer to recklessness by reference to Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC) (28 February 2013), Akenhead J.

Under the heading ‘False Statements’ CPR 1998 r 32.14 (the same words are used for family proceedings in Family Proceedings Rules 2010 (FPR 2010) r 17.6(1)) says:

Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.

Thanks to ICLR ‘Case Info’ I know, from my review of Berry Piling, that that case has since 2023 been disapproved. It is now clear that recklessness is not enough to found a contempt application. Berry Piling was disapproved of by the Court of Appeal in Norman v Adler [2023] EWCA Civ 785, [2023] 1 WLR 4232 (7 July 2023). The lead judgment was by Thirlwell LJ, with whom Nicola Davies LJ agreed. Bean LJ’s single paragraph judgment summarises the ratio (essential reasoning) of the decision.

[101] Moore-Bick LJ said in KJM Superbikes Ltd v Hinton [2009] 1 WLR 2406 (following established authority [then cited] that an applicant for permission to bring contempt proceedings in respect of a false statement must establish a strong prima facie case ‘not only that the statement in question was false but that it was known at the time to be false’. Akenhead J should not, in my view, have departed from this principle in Berry Piling Systems Ltd v Sheer Projects Ltd [2013] BLR 232…. KJM lays down a clear and understandable test which I suggest should not be complicated by introducing concepts of recklessness or conscious lack of knowledge. Deliberately misleading the court may be equivalent to knowingly making a false statement, but I do not think that any further gloss is required.

That is consistent with a narrow approach to what may be assumed to reckless and the extent to which anyone deliberately misleads the court. When can they be said to be in contempt under the present law?

Contempt of court and Administration of Justice Act 1960 s 12

Part 3 of this series of posts will bring me to the subjects of AJA 1960 s 12, contempt and Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA for at least three reasons:

(1) The extent to which a clear intent (mens rea) is necessary for a successful application for contempt for ‘publication’ (AJA 1960 s 12(1)) or ‘communication’ (FPR 2010 Part 12 Chapter 7 provided for in effect by the amendment to AJA 12(4)) of information as to what happened in court where a hearing (for whatever reason: often children proceedings) is heard in private.

(2) Re F asserts – and House of Lords authority has since confirmed this – that s 12 does not create a new code for contempt proceedings, that is to say it does not change the pre-1960 (or indeed later) common law.

(3) And what does ‘recklessly’ mean anyway in this or any other context?

To do this I shall review AJA 1960 s 12 and the assertions of law in Re F and especially as put forward by three senior lawyers in their Transparency in the Family Courts: Publicity and privacy in practice Julie Doughty, Lucy Reed, Paul Magrath, Bloomsbury Professional (2023) now in its second edition, especially at 2-97 to 2-101).

Analysis of Re F [1976]

I shall explain in Part 3 of why Re F is part of the common law. A clear understanding what the common law (alongside the relevant statute law) says is crucial where contempt of court (with its threat of committal to prison) may arise (see eg Medway Council v Root [2018] EWHC 1298 (Fam) (15 March 2018), Theis J). Central to that for many journalists and lawyers (and in the Root case, lay people as well) is an understanding of the meaning of AJA 1960 s 12.

I shall show how even judges misunderstand the meaning of s 12 (and see eg A tale of two judges: ‘private’ hearings and permission for publicity. Judges and authors of legal texts, I fear, mislead their readers too…

As to the importance of Re F: the case has 19 entries in the table of cases in Arlidge, Eady and 30 citations in its ICLR ‘case info’. The most recent of these ICLR ‘case info’ cases is of a month ago in Abbasi (above). As a trailer to my Part 3 post, its facts are summarised by Lord Denning MR (with whom the other two lord justice were in agreement). At 82 he said:

This is about a distressed father and mother. They have an errant daughter who has worried them greatly. Last year, 1975, when the daughter was only 15, and still at school, she got into the clutches of a man much older than herself. He was about 28. He was a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair [as far as I know in 1976 Lord Denning had no hair on his heard]. He was one of a ‘hippy’ gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15. She thought that she was in love with him.

Recklessness of advocates in context

And so, back to advocates generally and to the extent that a judge can rely on an advocate in court. What of an advocate’s recklessness generally? What of recklessness under s 12 and of the treatment of the law in relation (on which Lord Denning MR (at p 89) comments in Re F)? Especially how does a lawyer’s recklessness (see eg Derry v Peek (1889) 14 App Cas 337) apply. Should advocates have to expect to sign a statement of truth when submitting any document to the court? Thoughts on these points follow…

David Burrows

13 May 2025