Approval for counsel – test, definitions and principles

Guidance in this Approval for Counsel section provides detail on how to apply for prior approval (also referred to as “sanction”) for counsel. We have identified the broad factors that you should address when applying for approval.

Information can be found on:

  • circumstances where counsel is automatically approved
  • circumstances where we cannot grant approval for counsel
  • the factors likely to support the employment of counsel
  • the work that counsel can do under the approval
  • retrospective approval applications for counsel
  • the delegation of duties between solicitor and counsel
  • employment of a solicitor advocate.

Definition of “counsel” in different courts

In the UK Supreme Court, the High Court of Justiciary and the Sheriff Appeal Court “counsel” means an advocate or a solicitor holding and exercising extended rights of audience (a “solicitor advocate”).

In the sheriff court and Justice of the Peace court, “counsel” means a member of the Faculty of Advocates. A solicitor advocate is a “solicitor” in the inferior courts.

All approval applications for counsel should be directed accordingly.

The legal test: representation by counsel is “appropriate”

The leading case on the issue of approval for counsel under the legal aid legislation is the Petition of Matthew McAllister [2010] CSOH 112. It was stated in the Opinion of Lady Stacey, for the first time, that section 21(4) (a) of the Legal Aid (Scotland) Act 1986 in addition to providing a definition also sets a test, in very wide terms, which has to be satisfied in order that we may grant approval for counsel (the term “sanction” was used throughout the Judgement). There is no test set out in the regulations.

21. (4) (a) Criminal legal aid shall consist of representation, on terms provided for by this Act

(a)by a solicitor and, where appropriate, by counsel…”

In arriving at this conclusion the court made a number of observations.

We do not require to give reasons for our refusal, although we do so in the exercise of our functions as a public body.

There is no “magic” in the use of the word “appropriate”, although we do as a matter of course tend to state the application of the test in our reasons for refusal.

All that is required of us in issuing a reason for refusal is a decision whether, in the circumstances of the case as described, it is appropriate to approve the employment of counsel, without replying in detail to the various issues described “serially in notes”, to use the words of Lady Stacey. In practice and in the context of a request where we have been addressed on a number of issues, we may specifically refer to some of them to more fully explain how we arrived at our decision. This does not mean that we have failed to consider the remaining issues.

Lastly, it was concluded by the court that:

  • it should be explained by a solicitor how issues raised in support of an approval request actually arise in the circumstances of the case (and are not simply theoretical)
  • we have a wide discretion to exercise in making our decision
  • the weight we place on various circumstances is for us to decide.

In applying the test, as identified by the court, the question of whether the conduct of a case, as described in a request for approval, appears to be beyond the competence of an experienced solicitor is a factor, along with other factors and contra-indicators in arriving at a decision.

Before accepting instructions

In general we consider that solicitors are capable of conducting most proceedings in the lower courts and proceed on the assumption that the firm and the solicitors working in that firm have the legal skill, knowledge and experience to conduct the majority of cases before accepting instructions. Our Criminal Code of Practice makes it clear that a firm and its solicitors must have the knowledge and experience necessary for each case in which instructions are accepted.

In deciding to accept instructions a firm should be satisfied that the appropriate resources are available. This includes technical and administrative support and the day to day skill and experience of its practitioners in the criminal courts to ensure the proper preparation of the case and conduct of any related court proceedings. Any application for counsel should be made only where the nature of the case or the facts and circumstances objectively justifies such an application.

You should consider the terms of the Law Society of Scotland’s Code of Conduct for Criminal Work which states

“…No instructions should be accepted in circumstances where those instructions are subject for whatever reason to restrictions or constraints which compromise the solicitor’s freedom to give appropriate legal advice.”

When considering whether to accept instructions you should consider:

  • do you have sufficient resources to properly prepare and present the case?
  • is there any conflict of interest which would cause you difficulty in conducting the proceedings?
  • does your firm act for any complainer or witness in the case?
  • will a member of your firm be called to give evidence?

Where you accept instructions or continue to act in a case where you are aware, or should reasonably have anticipated, that your ability to act might be constrained or restricted, we are unlikely to regard this as a good reason for sanctioning the employment of counsel. In those circumstances you should normally pass the case to another firm or solicitor not subject to such a restriction or constraint.

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