Applying for prior approval

An application for prior approval (also referred to as “sanction”) requires to be made for the following:

• The employment of counsel
• To instruct an expert witness
• For unusual work
• For work likely to involve unusually large expenditure (over £2000.00)

Such an application is required regardless of the nature of the grant of legal aid. Prior approval is required in proceedings at first instance and also in appeal proceedings.

Subject to the reference to the employment of counsel “where appropriate” [section 21(4) of the Legal Aid (Scotland) Act 1986], neither the Act nor regulation 14 state any specific criteria for approval. This is entirely within our discretion and we set out our approach in this guidance.

Where you need our approval, you must obtain this before counsel or an expert witness is instructed. We may approve the employment of counsel or an expert witness retrospectively [regulation 14(2) of the Criminal Legal Aid (Scotland) Regulations 1996] if:

• We consider that there was a “special reason” why our prior approval was not sought.
• We would have granted approval initially.

We do not regard mere oversight or ignorance or a misunderstanding of the legal aid legislation as a special reason.

On a change of solicitor, it may be that counsel has been employed without sanction and this may have temporarily escaped the notice of the incoming solicitor. Although best practice would be for an incoming solicitor to check that all necessary approvals are in place, we may consider this to be a special reason.

The provisions for retrospective authority do not apply where application for prior approval was made but was refused.  We have no discretion to grant retrospectively in these circumstances.

It is not possible retrospectively to approve unusual work or work involving unusually large expenditure [Regulation 14(2) of the Criminal Legal Aid (Scotland) Regulations 1996].

You have to exercise care and ensure that you have any necessary approval before undertaking such work.

You can ask us online to reconsider a decision where we have refused to grant approval. In the request, you should:

• Provide additional information if available.
• Address why you believe the decision we made was incorrect.

If you do not provide any additional information or fail to address why the decision made was incorrect by reference to the reasons for refusal, we are unlikely to change the decision. We will not consider repeat applications for approval unless accompanied by new information.

The application will be reconsidered by a different decision-maker.