Please see this update from the Sheriff Clerk at Livingston :-

“………

General information applicable to all practitioners is noted below.

Access to the building/courts

Other than undertakings and personal appearances ordered by the Sheriff, the court (and indeed the entire civic centre) remain completely closed to members of the public.  There is no public counter service and no facility for friends/family of accused to attend court.  Again I would be grateful if you can advise your clients of this to avoid them having to make an unnecessary journey only to be turned away from the door.  Solicitors should ensure they have the relevant ID to show to the security staff to be granted entry to the building.

Wearing Masks

Current legislation only covers the compulsory wearing of masks within retail environments and public transport.  Government guidance is that you should wear a mask in areas where you cannot safely socially distance.  All of the courts areas currently in use in Livingston (court rooms, agents room, witness rooms, interview rooms) have all been risk assessed and set out in a way to ensure social distancing and the maximum occupancy in each room are displayed on the doors.  Anyone wishing to wear a mask within these areas is free to do so.  I cannot enforce that masks are mandatory for all who enter these areas unless the law changes or the national position across all of SCTS buildings change.

Court rooms

At present there are only Courts 1 and 2 available to hold Sheriff Court business due to current social distancing requirements.  Court 6 is available for limited JP business.  Where possible we will try and keep the custodies, full committals etc separate from the other criminal courts however there are some days where these will need to share a court due to the programmed business (such as when we have trials courts).  Please check the board when you arrive to see what court rooms are in use that day.

New procedures/trying out new ways of working

We are all having to try and adapt how we work to meet the every changing situation with COVID and the restrictions this places on all of us both at work and home.  Unfortunately there is no manual for running a court in such circumstances and every court has its own unique issues which means that Sheriff Clerks are having to try and absorb a lot of every changing information covering all areas of Sheriff Court work, H&S etc and are then trying to put processes in place accordingly.  I am also doing this with a vastly reduced staffing profile as our office in Livingston cannot be distanced accordingly to allow all staff to be back at work at the same time.  We have to accept that some processes may take longer than usual, some may need time to bed in and some may not work as well as we hoped and we may need to go back to the drawing board but I really am trying my best to continue to keep everyone safe and to get business moving again.

Feedback/raising issues

I have managed to chat to a lot of you either in person in the building or by phone/email both during and after lockdown and I am more than happy to discuss any concerns you have or to take any feedback on board.

I hope that has covered everything – if not or if there is anything you want to discuss with me please let me know.

Once again, thank you for your patience and understanding during these challenging times.

Kind regards”

Civil Business

 

We still waiting to find out if we can get the required licences to allow us to use web-ex software to conduct evidential business remotely or possibly run procedural courts entirely by video conference. This means I have had to think about how we can deal with business meantime.

We are continuing to deal with new interim hearings, opposed motions, adoptions, AWI’s etc by either telephone hearings or written submissions.

We have an ordinary court scheduled for Wednesday 5th August which contains some cases that were adjourned administratively from courts due to take place immediately after the court closed in March.

I appreciate that it is now very short notice to ask for full written submissions to be lodged 2 days in advance of the court and that setting up teleconference slots for an entire court within that time frame will be quite a task. I also think it is important that we get an agreed judicial position from all of the Livingston Sheriffs re: what cases are suitable for written/telephone hearings going forward and this will also not be possible within the next couple of days.

As it transpires, having reviewed the August programme for the next 2 weeks, I now have a spare, socially distanced, large court room (court 2) available on 5th and 12th August. I have spoken to the clerks, Sheriff and Greg to get their views on whether it would be possible to run the business currently assigned to those dates in Court 2, with only solicitors in attendance. Court 2 would have a maximum capacity for up to 12 solicitors to be within it at any time whilst all being safely socially distanced. The criminal faculty have been appearing in this court during July in absence of clients without any issues so I thought we could perhaps make it work for these 2 x civil courts too. If anyone has any concerns about coming to court or what measures we have put in place for the safety of all court users I would be happy to discuss this further.

I need to point out that this accommodation will not be free on any other dates so this will not be how our civil courts will be conducted from now on but I thought it would allow a couple of weeks for us to either get web-ex in place to do hearings virtually or alternatively to get the required direction from the Sheriffs re: telephone/submissions hearings going forward.

I know some solicitors have been desperate to get back into court to deal with cases rather than the time it takes to do it administratively/by telephone. However I also know some may not be in a position to attend court at present and in those circumstances the court would look to accommodate this by dealing with those cases by other means (such as telephone hearings). We would not be able to give exact time slots for these hearings however so there would be an expectation that the solicitors involved be completely available to take part in the hearing at any point during the normal court running time (10 am – 1pm).

We will contact all firms who have cases assigned to these courts and will advise them what to do if they are not able to attend. Should the over-riding feeling from the faculty be that they do not want to come to court, I will pull the plug on this idea and we will cobble something alternative together for next week as best we can.

We are not setting up child welfare courts as we currently have no means to operate them. However if anyone has formally requested a child welfare hearing to be assigned in a motion etc, these have all been put to the Sheriff to determine further procedure. Given the restrictions upon the court in terms of accommodation, we really need assistance from the faculty requesting these hearings to also tell the Sheriff by what means they believe the case can call and what they will do to assist the court in facilitating the hearing (i.e. how they intend to take instructions from their client should a telephone hearing be requested).

Simple/Summary Cause procedural cases with future hearings will be dealt with by either telephone conference or written submissions as determined by the Sheriffs. After the 31st July, applications to restart simple cases paused due to COVID can be made and after that date we will also be actively identifying cases where an action was required during the lock down period (such as submitting applications for decision etc) and will be contacting appropriate parties to try and get the cases moving again.

Social Work Referrals/Appeals are continuing to be dealt with entirely administratively at present and are likely to continue in that manner until we are able to facilitate evidential hearings in Livingston either remotely or within a court room.

As I am sure you will have gathered from the points above, we are still not in a position to assign specific dates for physical or remote evidential hearings in any type of cases. We have a list of all cases that had proof/debates assigned during lock down that were put off to “dates to be afterwards fixed” however until we know how we can run these hearings, there is little point in attempting to programme them in to future dates. When we are in a position to assign hearings, cases will be assigned dates depending on their priority (part heard, nature of case, age of case etc). Meantime, as per the Sheriff Principal’s civil guidance published on 22 June 2020, parties should be actively looking at these cases and considering how the cases would be able to proceed with the current restrictions (i.e. agreeing evidence, whether witnesses can be heard remotely etc).

Criminal Update

My previous update covered all criminal business assigned to call in July. As I indicated in that update, I was unable to put plans in place beyond that due to not knowing whether the distancing guidelines would change or whilst awaiting the outcome of pilots being conducted elsewhere.

As it currently stands, nothing has changed in respect of the court accommodation available in Livingston or the building still being closed to the public however we now enter a period where we have increased levels of business and courts programmed we have not had to deal with before during the period since we reopened.

I have been in discussions with the Crown this week and have agreed we can currently only usefully plan for the next couple of weeks of courts with the information we have available to us at present. We are as frustrated as you that we can’t plan beyond that however the COVID situation remains fluid and we cannot predict what the situation will likely be beyond that point.

SHERIFF COURT SUMMARY CRIMINAL BUSINESS

Cited Courts

These remain unchanged from the position in July.

With the exception of undertakings, NO ACCUSED SHOULD ATTEND COURT.

If you have instructions to tender a not guilty plea, this should be intimated to the court in advance of the hearing by way of letter.  Not guilty pleas will be dealt with administratively with dates being intimated by letter.

If you have instructions to CWP a case, this should be intimated to the court in advance of the hearing by way of letter.  CWP cases will be dealt with administratively with dates being intimated by letter.  Please note: the new COVID regulations allow for cases to be CWP for longer than the previous statutory period and continuations may be longer than usual to allow for efficient diary management of business.

No not guilty pleas or defence motions to CWP will be dealt with on the day in court so these must be intimated in advance by letter.  The Sheriff Clerks will intimate the future dates to agents by letter.

If you have instructions to tender a guilty plea, you can do so in court in the absence of your client.  Please ensure you have the following information as the Sheriff will deal with any cases that can be disposed of on the day:

  • Current address and contact telephone number
  • The financial, employment, health and domestic circumstances
  • If it is proposed that the imposition of a monetary penalty is the appropriate disposal the plea in mitigation must fully address the accused’s means (income; outlays and savings) and ability to pay by instalments or by a lump sum.
  • If it is a Road Traffic matter where a disqualification is likely to be imposed, a signed mandate from the accused confirming that they know that they may be disqualified from driving from the hearing date and that they have no intention of driving that day.

Having considered the circumstances and mitigation, should the Sheriff believe that a personal appearance is required or that they need further information prior to disposing of the case, a future date will be provided at that time.

Undertakings

Undertakings assigned to Tuesdays will continue to be given time slots in advance to ensure that the current court capacity is not exceeded and your clients ARE REQUIRED TO ATTEND COURT at that allocated time. The Crown will intimate the specific time slots in advance.

The Lord Advocate has issued a direction to Police Scotland that new undertakings require to be issued with court dates within the timescales that applied pre-COVID. Due to our usual slots already being used within that timeframe, I have agreed to temporarily provide additional slots for the Police for use meantime. Therefore a maximum of 4 x undertaking slots have been allocated at 2pm on Wednesdays, Thursdays and Fridays from w/c 3rd August until further notice.

While the building restrictions are still in place, security and the in court Police Officers will continue to receive a list with the names of those who are expected to attend each day and they will be told to take a seat in the foyer area until they are escorted to court.

If your client advises you they have an undertaking for a Wed – Fri, it should have a time on it for 2pm. If it doesn’t, please advise them not to attend until 2pm that day and let me know ASAP as I will need to go back to the Police to confirm they need to ensure that they allocate that time slot only.

Hopefully the extra slots will not only mean less custodies but it will also mean your clients aren’t on undertaking bail conditions for an extended period and this should also reduce the number of reviews that you need to submit to the court.

 

Intermediate diets

We are unable to conduct full intermediate diet courts due to the current restrictions on court capacity. As per the LJC Criminal Courts Practice note No. 2 of 2020, intermediate diets in Livingston will be dealt with completely administratively and no ID court will be convened until further notice. The only exception to this will be for custody intermediate diets and these will continue to be programmed for video links in to slots within the custody court as per the existing arrangements.

Due to the volumes of cases assigned to intermediate diet courts and the reduced capacity for trials to run, it has been agreed in Lothian & Borders that the Crown will select cases in advance of the intermediate diet court that they believe are likely to be able to proceed to trial on their allocated trial date. These cases will be considered by a Sheriff in chambers on the programmed intermediate diet court date along with both sets of written records and they will decide whether each case should be continued to trial on the basis of all of the information before them. All other cases will be administratively adjourned to new ID/trial dates. The outcome of each intermediate diet will be intimated to the defence by letter from the Sheriff Clerks Office.

As always, any cases that have been assigned future dates that are unsuitable can be accelerated by way of joint minute.

As intermediate diets are being dealt with and case managed administratively, we need all ID’s to be assigned only to a programmed ID court. This means that you should not request that ID’s be assigned to different courts where the accused has other matters calling.

The court and the Crown recognise the additional administrative burden the completion of written records places on both the Crown and Defence and therefore it has been agreed in Livingston that these written records only need to be completed for the cases that have been identified in advance by the Crown as noted above. The Crown will endeavour to issue a note of these cases to the Defence on or before the Friday prior to the ID court and, to assist solicitors in completing their records, the time period for lodging the Defence written records will be extended locally until close of business on the Monday prior to the intermediate diet (as opposed to the 2 clear working days within the practice note).

Hopefully by reducing the volume of written records that need to be submitted and considered by the Sheriff, it will allow everyone to focus clearly on the cases that are likely to be able to proceed to trial on their given dates. Obviously if the Defence wish to submit a written record for every case at an earlier opportunity they are welcome to do so.

As these written records will be considered in isolation by the Sheriff in chambers, it is vital that both the Crown and Defence ensure that they contain all information the Sheriff will need to consider. I know the Solemn written records can sometimes become a generic box ticking exercise however these can always be expanded upon by parties in person at the first diet hearing. This will obviously not be the case with the summary written records.

I have spoken to colleagues in courts that have already dealt with ID cases and note a few points below that were highlighted to me as being issues that have arisen elsewhere.

  • There is a box for detail/explanation at each point which should be used to expand on your Y/N answer where appropriate (for instance if you indicate in section 1 you are not prepared for trial, explain why this is the case within the box).
  • If the matter of identification is in dispute, you must ensure that this is recorded in the written record. This is important incase we do move to virtual trials taking place in Livingston in the future.
  • It is also essential that the expected duration of the trial is properly considered within the written record (taking into account the number of witnesses, interpreters, video evidence etc) as this will determine the trial court loadings in the same way that we would normally do with a jury trial sitting.The practice note and a style copy of the written record can be found here: https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/criminal-courts/criminal-courts-practice-note-no-2-of-2020.pdf?sfvrsn=4Guilty Pleas  Our first rescheduled trials courts are due to commence w/c 17th August. Cases that were assigned to trial courts without an intermediate diet (such as part heard trials or cases continued pre-lockdown) will retain their trial diets unless advised otherwise.We can currently operate physical trials within Livingston however the number of trials assigned to each court will be greatly reduced to allow for safe social distancing of witnesses and accused. The trial loadings will be determined on a court by court basis based on the estimated duration of the trials, number of witnesses required etc to ensure that the maximum capacity within the waiting areas are not exceeded. The Crown are taking these factors into account when selecting the cases at ID stage and this is why it is important that written records contain all of the relevant information.Remand Courts     These remain unchanged from the position in July.NO ACCUSED SHOULD ATTEND COURT. Cases assigned to these courts will initially call in the absence of the accused.  The Sheriff will dispose of any cases that they feel can be dealt with in the absence of the accused.  Agents should be fully instructed and able to provide relevant information. Having considered the case, should the Sheriff believe that a personal appearance is required or a continuation is appropriate, a future date will be provided at that time. First Diet Courts    These will continue to be dealt with in chambers as per the existing Lothian & Borders protocol.JP COURTS JP Cited courts will operate in the same manner as the Sheriff Court Cited courts as explained earlier in this document. With the exception of undertakings, NO ACCUSED SHOULD ATTEND COURT. If you have instructions to tender a not guilty plea, this should be intimated to the court in advance of the hearing by way of letter.  Not guilty pleas will be dealt with administratively with dates being intimated by letter.If you have instructions to CWP a case, this should be intimated to the court in advance of the hearing by way of letter.  CWP cases will be dealt with administratively with dates being intimated by letter.  Please note: the new COVID regulations allow for cases to be CWP for longer than the previous statutory period and continuations may be longer than usual to allow for efficient diary management of business.No not guilty pleas or defence motions to CWP will be dealt with on the day in court so these must be intimated in advance by letter.  The Sheriff Clerks Office will intimate the future dates to agents by letter.If you have instructions to tender a guilty plea, you can do so by letter or in court in the absence of your client.  Please ensure you have the following information as the JP will deal with any cases that can be disposed of on the day:
  • Cited Courts
  • The JP courts will begin to resume again next month, starting with the cited court on 5th August. No accused should attend the JP court unless appearing on an undertaking or specifically directed to attend personally by the JP.
  • Bail reviews
  • S76 hearings and reductions to summary cases will be scheduled into these courts however the number of slots for these will be limited and again time slots will be assigned (as per the undertakings arrangements) to ensure the court capacity is not exceeded as the accused will require to attend personally for these hearings.  At present the slot for reductions to summary cases will be 12 noon however that will remain under review.
  • NO ACCUSED SHOULD ATTEND COURT UNLESS A PLEA HAS BEEN AGREED. Cases will either call in the absence of the accused or will be administratively re-fixed by way of S75 minutes.  Accused remanded in custody will only appear via videolink if a plea is agreed or there will be a motion for bail. The Crown will liaise with agents on a case by case basis.
  • These remain unchanged from the position in July.
  • SHERIFF COURT SOLEMN BUSINESS
  • DTTO/Breach Proof Courts
  • The only exception to this is when a case has already called in the absence of the accused since the beginning of July 2020 and, on that date, the Sheriff specifically instructed that the personal appearance of the accused would be required at the future hearing.
  • Having considered the circumstances and mitigation, should the Sheriff believe that a personal appearance is required, or that they need further information prior to disposing of the case, a future date/time slot will be provided at that time.
  • Cases assigned to remand courts will initially call in the absence of the accused.  As per the arrangements for guilty pleas being dealt with in the cited court, the Sheriff will dispose of any cases that they feel can be dealt with in the absence of the accused.  Agents should be fully instructed and able to provide the information as previously indicated.
  • NO ACCUSED SHOULD ATTEND COURT (except in the circumstances that are underlined below).
  • Trial Courts
  • As always, the ability to accelerate a case by way of joint minute to tender an agreed guilty plea remains and the Crown and Sheriff Clerks Office will identify a suitable date for the acceleration to call based upon the court diary at that time.
  • No further dedicated guilty pleas courts are able to be programmed in Livingston going forward. Any case where a guilty plea (that is acceptable to the Crown) is being tendered at intermediate diet stage, can be tendered by letter. There is no need to complete a written record in these cases. The plea will be recorded and the Sheriff will thereafter assign a suitable deferred sentence date for narration/mitigation. If the Sheriff believes that the personal appearance of the accused is required at that date, this will be intimated.
  • Current address and contact telephone number
  • The financial, employment, health and domestic circumstances
  • If it is proposed that the imposition of a monetary penalty is the appropriate disposal the plea in mitigation must fully address the accused’s means (income; outlays and savings) and ability to pay by instalments or by a lump sum.
  • If it is a Road Traffic matter where a disqualification is likely to be imposed, a signed mandate from the accused confirming that they know that they may be disqualified from driving from the hearing date and that they have no intention of driving that day.

Having considered the circumstances and mitigation, should the JP believe that a personal appearance is required or that they need further information prior to disposing of the case, a future date will be provided at that time.

Intermediate diets

NO ACCUSED SHOULD ATTEND COURT. Due to the smaller number of these cases assigned to call in JP courts, Defence written records should be completed and submitted to the court for all cases. The Crown will operate under the same principals as with the Sheriff Court business by identifying cases where trials are likely to proceed on their allocated trial date and the remaining cases will be given new intermediate and trial dates. The outcome of each intermediate diet will be intimated to the Defence by letter from the Sheriff Clerks Office.

Trial Courts

There are no trial courts programmed in August. Thereafter it is expected that they will operate in the same manner as the Sheriff Court trials as explained earlier.

Sentence Deferred cases

No accused should attend court unless specifically directed to attend personally by the JP. As with the Sheriff court cases, the JPs will deal with as much business as they can in the absence of the accused and any agent appearing on behalf of a client should ensure they are fully instructed with the relevant information as noted in the cited court section above.