Circumstances when you need to apply for approval and when this is not required

Whether you need prior approval depends to some extent on the nature of the case or the court dealing with it. Thus, you may do something quite properly without prior approval in a High Court murder case, which would need prior approval in a minor breach of the peace case in the JP court. Regulation 14(1)(d) of the Criminal Legal Aid (Scotland) Regulations 1996 is not, in general, concerned with the nature of the case itself, but with items of work.

You do not need prior approval just because you are acting, for example, in a murder case, a serious fraud case, or a major drugs case.

Serious cases will be expected to:

• Involve many witnesses and productions.
• To extend over many trial days.
• Will result in substantial payments being made out of the Fund.

You do not need our prior approval in that sort of situation, and your claim for fees, outlays and counsel, if appropriate, will be assessed or taxed in the normal way.

The provision is concerned with the way the case is conducted – that is, the work done.

If you consider court proceedings have to be raised in a foreign jurisdiction for, say, production of documents or evidence held by an off-shore company, you need sanction for this.

Some other examples of where prior approval should be sought are:

• Inspecting a locus outside Scotland.
• Copying large volumes of papers, should the cost exceed £2000.
• Instructing counsel to consult with an expert outwith Scotland.
• Keeping a watching brief on some other case.
• Having shorthand notes extended.

This is not an exhaustive list.

If you have any doubt about this you should contact our Criminal Applications Department to discuss your concerns.

You must use the online application system in all cases to allow us to obtain the basic information needed for a prompt decision.

If you are seeking sanction in a case of exceptional urgency, apply by telephone, then promptly complete the online application.

With the application for approval, you should send us:

• A copy of the petition, indictment, complaint or grounds of appeal or otherwise.
• An explanation as to why you consider it reasonable to carry out the unusual work or work involving unusually large expenditure of £2,000 or more.

Where you send us lengthy documents, please highlight the relevant passages.

Where the work involves getting an order of the court (for example, specification of documents), you should get our approval before asking the court to consider the matter. You should:

• Address, in detail, why you believe the work is essential.
• Show that you have considered all other reasonable options, having due regard to economy.
• Provide full costings both for the course of action proposed and for possible alternative courses of action.

• A full breakdown of the costs likely to be incurred.
• What fees are proposed, including fees for reports, attendance at court and travel time, with a statement of the basis of charge – for example, an hourly or daily rate.
• Any likely outlays individually (you should always do this at the initial sanction stage, before incurring the costs of preparing a report).
• With travel costs, a note of the form of travel to be used.
• Subsistence and overnight accommodation charges.

Any sanction we grant may include a condition that costs may not exceed a specified amount or that specified work may not be carried out.

Where appropriate, we need a detailed breakdown of the time spent and the rates charged for our Accounts Assessment Department to properly assess the outlay claimed.

You normally need our prior approval to employ counsel or expert witnesses, but we may grant retrospective sanction if you satisfy us that there is special reason why you did not seek prior approval. Overlooking the need to get prior approval would not by itself be likely to satisfy the special reason test.

There is no provision for retrospective approval of work of an unusual nature or likely to involve unusually large expenditure. If, in examining your account of fees and outlays, we consider that you should have asked for prior approval for some work we consider to be of an unusual nature or likely to involve unusually large expenditure, we will abate those charges concerned.