Association of Chief Trading Standards Officer and National Training Standards – written evidence (CIC0005)

 

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

 

 

 

Responses to the consultation on Constitutional implications of COVID-19: Courts

 

  1. This response is on behalf of the Association of Chief Trading Standards Officers (ACTSO) and National Trading Standards (NTS). We welcome the opportunity to respond to this consultation. 

 

  1. The NTS is a group of senior and experienced local government heads of trading standards, representing all trading standards services across England and Wales.  It provides leadership influence, support and resources to help combat consumer and business detriment locally, regionally and nationally.

 

  1. The Association of Chief Trading Standards Officers (ACTSO) is the membership organisation representing senior Trading Standards Managers from councils across England and Wales. ACTSO is focussed on providing effective leadership at the national level while supporting members to lead their services both locally and regionally.

 

Questions

 

 

1. How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

 

  1. We think there is a place for virtual courts but restricted to basic (administrative or preparatory) hearings but not for trials by jury.

 

  1. Some Trading Standards Services have participated in some relatively successful virtual proceedings.  These included: appeals against sentence and conviction; a non-contested cash detention hearing in the Magistrates’ Court; and a POCA confiscation hearing with an agreed order. However video technology and telephone reception has been patchy and some local authority officers have been unable to participate directly as they were unable to dial into the hearings.

 

 

Benefits

 

 

Disadvantages

 

 

Challenges

 

  1. Historically the “open Court” goes to the heart of our Justice system it is a challenge to enable those (few) who actually want to be at a hearing/trial to be involved.

 

  1. There will be people who do not have access or competence or other reasons such as disabilities which may mean they have problems in accessing ICT based systems.  

 

  1. It would be difficult to run a jury trial virtually as so many practical issues arise, including challenges on points of law and seeing exhibits clearly. Also in a court room the judge can see everyone and has control; with a video link you cannot see who else is present and out of camera view.  Remotely siting jurors reduces them to a spectator role, whereas advocates need to be able to engage with them.

 

  1. Witness care could be an issue particularly with elderly and vulnerable and those not confident with ICT.

 

  1. Technological i.e. where one person loses a signal, another forgets they are on mute, delays, security breaches etc.

 

  1. How could the media be included and be able to report accurately?

 

  1. As Local Authority prosecutors still do not have access to court digital case management platforms, unlike say, the CPS, participants cannot upload/access/view anything electronically, which is especially unhelpful when LAs are now working remotely.

 

 

2.What is the impact of virtual proceedings on (1) litigants, (2) lawyers, (3) judges, (4) court staff, (5) media, (6) the public? What support is available to them and what is required.

 

  1. Please not we have commented only on some of these at it is not our place to comment, for example, on behalf of judges.

 

 

(2) Litigants

  1. There is a perception that litigants in criminal work treat virtual hearings less seriously.
  2. The system assumes that all litigants have access to suitable technology, internet connection and are IT literate, which is not the case. 
  3. There is less opportunity for discussions with defendants/solicitors/barristers beforehand; this may result in more not guilty pleas because if the defendant is not represented they may not fully understand the charges.
  4. There are also questions concerning a defendant’s understanding of the proceedings and need to consult with legal advisors throughout the hearing. 

 

(2) Lawyers

  1. For lawyers, virtual proceedings are likely to be a welcome step forward.
  2. There are challenges around private consultation with clients.  Hearings have been paused on several occasions to allow defence Counsel to consult with their client during the hearings. Clerks and court staff remained in open court whilst those legally privileged consultations took place. For Trading Standards cases, the Trading Standards/local authority “client” must be able to attend any virtual hearing to enable such discussions and avoid unnecessary delays.

 

 

(5) Media

  1. Their access to hearings will diminish.  Practically, participation requires an electronic invitation from the court staff hearing. 

 

(6) The public

  1. Victims would not have the option to attend and observe proceedings. 
  2. We have concerns that some witnesses, especially those targeted by exploitative crime or those who are not familiar with technology may be intimidated by legal proceedings and may suffer from the absence of witness support measures offered to witnesses who attend in person.

 

 

3. What are the implications of virtual proceedings for: (1) access to justice, (2) participation in and fairness of proceedings, (3) transparency and media reporting, (4) adversarial vs inquisitorial styles of proceeding?

 

(1) Access to justice?

 

  1. We have concerns that virtual proceeding may reduce access to justice.  There is a limit to how many people can attend remotely and we have concerns about litigants’ access to IT equipment.  There are also questions concerning a defendant’s understanding of the proceedings and need to consult with legal advisors throughout the hearing.  This could be overcome to a large extent, by defence lawyers teaming up physically with defendants. Virtual proceedings are not ideal for contested trials with witnesses. Being unable to see a whole witness, their mannerisms, demeanour etc is lost on a virtual platform. 

 

(2) Participation in and fairness of proceedings?

 

  1. If the technology is accessible to all parties and working well it is possible for hearings to proceed satisfactorily.  If it is not working, then there is a problem with participation and transparency.

 

(3) Transparency and media reporting?

  1. Media reporting will diminish as the media needs to be specifically invited to a hearing at a set time to be able to attend. Access to cases by the media and public would be hampered by virtual proceedings. 

 

(4) Adversarial vs inquisitorial styles of proceeding?

  1. Virtual proceedings would certainly foster the environment and opportunities for a more inquisitorial style of proceedings.

 

 

4. What difference, if any, might virtual proceedings make to the outcomes of cases?

 

 

  1. The clear advantage of is that of speed and efficiency, especially at first hearings at Magistrates’ Court and administrative or directions hearings at Crown Court. 
  2. However, practical issues arise regarding trials which are outlined in our answers above.

 

 

6. Are the IT systems in the courts fit for purpose to support virtual proceedings?

 

  1. We do not believe that systems are fit currently.

 

  1. For example, Teesside has 13 courts.  Pre-Covid, due to cuts/staffing etc., only about three were being used, of which only one or two are/were set up for virtual/live link hearings. 

 

  1. For Trading Standards, our major problem is that Local Authorities cannot submit electronic files as the Court system does not accept EGRESS for serving documents and local authority prosecutors still do not have access to court digital case management platforms. This must be resolved as a matter of urgency, whether or not there is a move to virtual hearings.

 

  1. Currently there can be major delays in getting the IT functioning and everyone on line. There needs to be a significant investment in infrastructure. However another major weakness is the IT infrastructure of the participants. The system may fail if one participant’s WIFI/internet connection is weak.

 

7. Are certain types of case more/less suitable for virtual proceedings? If so, which ones?

 

 

More suitable:

 

Less suitable:

 

  1. One issue requiring clarification is whether a confiscation hearing is part of the sentencing regime, as there’s a knock-on effect as to whether it can then be held virtually and without the defendant present.

 

8. Should virtual court proceedings continue after the end of social distancing? If so, for what types of proceedings? If so, how might they be used to extend, rather than just maintain, access to justice?

 

  1. We received mixed responses to this question.

 

Should virtual court proceedings continue after the end of social distancing?

 

  1. Yes, to speed up access to court hearings, clear the backlog and avoid unnecessary delays. This could free up more court time which, in turn, should extend access to justice to the more complex cases.

 

  1. See answer to q7 for views on where they can best be used.

 

 

14. What are the benefits and risks of replacing juries with judges for some types of case?

 

  1. There are a variety of views on this issues. This is a question that has attracted much academic debate and calls into question a tried and tested methodology of Criminal Justice. Trial by jury is an ancient concept and is widely accepted as an essential safeguard to the citizen.

 

  1. The most obvious benefits of changing this relate to efficiencies in terms of logistics.

 

  1. Many serious Trading Standards cases relate to fraud. It can be argued that ordinary members of the public should not be asked to hear complicated and lengthy cases and potentially judges, especially those whose expertise lie in this area, should decide upon the facts of the case.  

 

 

15.What types of case are proceeding, both physically and virtually, during lockdown?

 

  1. Administrative, small claims, uncontested hearings, and tribunal cases.  The occasional Crown Court case in respect of non-trial hearings. 

 

What types of case are not making progress and what are the implications of that?

 

  1. Some local authorities have seen delays in animal welfare cases. For example one seized livestock under the Animal Welfare Act and the required S.20 hearing to obtain an order from the court took 72 days. The local authorities had to pay out to keep the livestock during this time.

 

  1. Very little is happening in the Magistrates Courts. 

 

  1. Jury trials were halted during the lockdown and serious Trading Standards cases were the lowest priority in the published guidelines. We have already had one trial scheduled for May 20 that has been adjourned to August 2021 and been advised of other that may now be delayed for 18 months to two years.

 

 

  1. Such delays cause problems where the case is predicated on the evidence of elderly or vulnerable witnesses.

 

  1. The risk is that when cases are heard they become seen as less relevant to a jury or court.

 

  1. Victims are being denied justice through delays.  Defendants are left in limbo not knowing when their cases will be dealt with. 

 

  1. Further, rogue traders who have defrauded customers of significant sums of money are potentially continuing to offend which means others are not being protected. 

 

 

16. What types of case should be prioritised during the pandemic?

 

 

 

 

17. What affect has the pandemic had on the large backlog of criminal cases and what are the consequences of this? How should the backlog be addressed?

 

  1. The pandemic has increased and worsened the pre-existing backlog. 

 

  1. We worry that cases will be considered ‘stale’ by the time they are heard.  We believe this gives more opportunity for defence mitigation to argue that the client has not offended in the long intervening period to further reduce penalties.  Repeated adjournments and delays in coming to trial result in solicitors/barristers needing to review files several times and refresh their knowledge of the case which increases the cost of prosecution for Trading Standards Services that are already operating on ‘tight’ budgets. 

 

  1. Witness recollection of events may be affected by the time elapsed between the event and the trial.

 

 

  1. Due to the current situation POCA matters have not been dealt with and therefore pushed back, this will have an impact on orders made for this year, but also due to cases not getting into Court over the last few months this will have an impact on the expected POCA orders for the next financial year.

 

  1. We suggest that a recovery plan needs to be put in place in the Magistrates’ Court to deal with significant local authority prosecutions, such as fraud cases to prevent a backlog from building up.

 

  1. More suitable court rooms, more judges and staff, sitting longer and at weekend, and better IT could resolve some of the backlog.

 

  1. Judge only jury trials or juries with six members may be an option, as would the use of “Nightingale” courts and encouragement of out-of-court disposals for suitable cases.

 

  1. Cases heard at Magistrates’ Court should be subject to the streamlining of summary justice (single justice procedure) and roll out of the system to the police should be seen as a priority now.