Applications for employment of senior counsel, more than one junior counsel and senior counsel acting alone

Junior counsel is available, without the need for prior approval, for proceedings in the:

  • Sheriff Appeal Court
  • High Court
  • UK Supreme Court

You must apply for our prior approval to employ junior counsel in the sheriff court or the Justice of the Peace court.

This section provides guidance on applications for senior counsel and more than one counsel.

Application for senior acting alone

When considering an application for prior approval for the employment of senior counsel acting alone, we will have regard to the following:

  • Whether there are exceptional factors which demonstrate a need for the experience of senior counsel.
  • Whether the case involves particularly complex or novel legal issues.

Application for senior and junior counsel

There will be occasions where it is appropriate to approve junior counsel to support senior counsel in a case where the indictment:

  • Contains multiple charges.
  • Involves a significant number of witnesses and productions.

When making an application for the employment of senior and junior counsel please supply:

  • Detailed information as to why both are required for the proper conduct of the proceedings.
  • A note from senior counsel to support the application.

 

Application for two junior counsel

There will be occasions where it is appropriate to approve the employment of two junior counsel in a case, on the basis of:

  • The number of charges libelled on an indictment.
  • The number of witnesses and productions.

When making an application for the employment of two junior counsel, you should:

  • Provide detailed information as to the need for two junior counsel.
  • Highlight the charges that relate to your client in cases with multiple charges and accused.
  • Provide details of the nature of the productions and their significance in the circumstances of the case in cases where there are a significant number of productions.
  • Address why you, as instructing solicitor, cannot assist counsel in the management and consideration of the material.

Equality of arms

In general, parity of representation between the Crown and defense will not, of itself, be sufficient to grant approval for representation of equal standing. The use of junior or senior counsel by the prosecution may demonstrate the importance placed on the matter by the Crown. Where the Crown allocates a case to junior or senior counsel or a Law Officer, we will consider this in light of all other information provided in support of the application.

Equally, the level of representation instructed by a co-accused, whether privately-funded or in receipt of legal aid, is not determinative of a request by you for similar representation. Where the co-accused has been granted approval for the employment of counsel, there may be a reason for this by reference to the nature of the charges against that accused or some other reason whereby the grant can be distinguished from your client’s circumstances. Again, we will consider your request in the light of all the other information provided in support of your application.

The case of Bank of St Petersburg v Oslo Marine Group Ports [2015] EWHC 3498 (Ch) at paragraph [24] addresses equality of arms. Mr Justice Hildyard commented as follows:

“Equality of arms, for example, cannot connote equal firepower, otherwise the Court would always, for example, have to insist on a party having a QC if the other party did, or a QC of equal standing as another party.”

See also A. B. Petitioner v Scottish Legal Aid Board 1991 S.C.L.R. 702

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