You need our prior approval for work of an unusual nature [regulation 14(1)(d) of the Criminal Legal Aid (Scotland) Regulations 1996].
Obtaining our prior approval for unusual work operates as a safeguard for you. You may wish to know in advance that we object to some item of expense, rather than finding out after the work has been done and the expense incurred that we will not accept it as a valid charge on the Legal Aid Fund.
Some examples of where prior approval should be sought are:
In any application for the inspection of a locus outside Scotland you should tell us why you think the work proposed is necessary for the proper preparation and conduct of the case. If we are satisfied that the work is necessary then we will consider whether what is proposed is the most cost effective method of achieving what is required. We will consider whether the work could be carried out by some other method eg instructing someone local to the locus.
If we do not think the work is reasonable, we will refuse the application. If the work is reasonable but can be carried out in a more cost effective manner we will part grant the application. If we are satisfied that the work is reasonable and the work cannot be properly carried out any other way, we will grant the application.
Where counsel requires to consult with an expert witness (Crown or defence) who is based outside the UK you should tell us why you think a face to face consultation is required. If it is not apparent from the terms of the application that a face to face consultation is reasonable or necessary for the proper preparation of the case then we will refuse the application on the basis that the work could properly be undertaken remotely (if the consultation can take place remotely then the work would not be unusual and would require to be the subject of a counsel prior approval application).
Where we have approved the employment of a non-UK based expert you must always check the terms of that grant prior to submitting any request to consult with the expert in person as we may have approved the employment of the expert on the condition that all pre-trial consultations are conducted remotely. Where such a condition was attached to the prior approval of the expert, we will refuse the application for unusual work on that basis.
When you are making an application for the employment of a second solicitor to conduct a trial in the Sheriff Court you must tell us why you think this is reasonable for the proper preparation and conduct of the case.
In any case where we have approved the employment of junior counsel to conduct a trial in the Sheriff Court and you have chosen to instruct another solicitor (usually someone who if appearing in the High Court is a solicitor advocate) then we will grant any request submitted for prior approval for the conduct of the trial.
If you are making an application in summary proceedings, then we can only grant a second solicitor where exceptional case status has been granted.
Where we have prior approved the employment of counsel for the conduct of a summary trial and you make a request for the employment of a second solicitor (instead of counsel) then we will grant the application subject to exceptional case status being in place.
If there is no grant of exceptional case status then the application will be refused on the basis that there is no separate payment available for the second solicitor in a fixed fee case.
We will advise you that an exceptional case status application should be submitted and, if granted, then you should apply to review the decision for the second solicitor’s employment.
Where we grant exceptional case status for the purpose of employing the second solicitor then the subsequent request for unusual work will be granted.
Where A and B are prosecuted on the same complaint or indictment (co accused) and A pleads guilty at a point prior to the conclusion of the trial against B and sentence is deferred to await the outcome of the trial against B, any attendance by A’s solicitor at B’s trial is not a watching brief as these proceedings involve A and B.
Where you attend the trial this is NOT a watching brief and we will refuse an application for prior approval but advise you detailed notes should be provided at the accounts stage explaining why it was necessary to listen to the evidence of a particular witness or a number of witnesses.
Where A is accused of assaulting B and B is accused of assaulting A and there are two trials – one prosecution against A for assaulting B and a separate prosecution where B is accused of assaulting A any attendance by A’s solicitor at B’s trial or vice versa IS a watching brief and prior approval is required for that work.
There may also be instances where there are related civil or children’s court cases and any attendance at those proceedings would be considered to be a watching brief.
We will grant where:
We will part grant where:
Where the request for unusual work arises from the number, nature or significance of the productions, you should provide information which demonstrates exceptional difficulties or complexities in the preparation and presentation of the applicant’s defence. A reference to the number and volume will not, of itself, be sufficient.
You should consider the alternative of using a non-legally qualified person, if appropriate, for example, where there is a need for marshalling extensive productions.
You should also consider and compare the costs of employing counsel instead.