Employment and definition of counsel

The employment of junior counsel is automatic but agents must obtain our approval for the employment of senior counsel except where the proceedings relate to a prosecution or conviction for murder, or of more than one junior counsel.

Where you are instructed in the High Court both advocates and solicitor advocates can be paid as counsel.

Solicitors must obtain our approval for the employment of counsel in the sheriff court.

If you are a solicitor advocate it is important that you are aware that there is no provision to instruct a solicitor advocate in any proceedings in the sheriff court.

In the sheriff court counsel must be a member of the Faculty of Advocates.

The employment of junior counsel is automatic but agents must obtain our approval for the employment of senior counsel or of more than one junior counsel.

In the Sheriff Appeal Court, a solicitor advocate can be paid as counsel.

An application can be made for retrospective approval for the employment of counsel where that employment or work would have been approved had it been applied for timeously and there was a special reason why prior approval was not applied for.

You should refer to the Applications guidance for more information.

For the purposes of the fees regulations and this guidance a reference to “counsel” includes a “solicitor-advocate” subject to the following:

Regulation 2 of the Criminal Fees Regulations provides the following definitions:

“solicitor-advocate” means

1. a solicitor who, in relation to the proceedings, has exercised a right of audience conferred by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980; or
2. in relation to proceedings in the Sheriff Appeal Court, a solicitor who would have been entitled to exercise such a right of audience had the proceedings taken place in a court to which section 25A of that Act applied;

and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.”

Where a High Court indictment has been served and the case is proceeding in the High Court or proceedings are in the UK Supreme Court, the High Court when sitting as an Appeal Court or the Sheriff Appeal Court a solicitor advocate can exercise their rights of audience, and you may be paid as counsel.

Prior to the service of an indictment, where SLAB has authorised the prior approval of counsel in terms of Regulation 14 of the Criminal Legal Aid (Scotland) Regulations 1996, having received intimation from the Crown that the case has been marked as a potential High Court prosecution a solicitor advocate van be paid as counsel.

This continues until a decision is made by the crown not to indict the case to the High Court.

In the event that the case is subsequently indicted in the Sheriff Court a solicitor advocate can only be considered as a solicitor and cannot be paid as counsel.

Where advice is provided in relation to section 74 or section 174 of the 1995 Act (appeals in relation to preliminary pleas) which would proceed in the High Court or Sheriff Appeal Court respectively a solicitor advocate can be paid as counsel.

This applies until a decision is made by the assisted person not to initiate an appeal, or once initiated until such time as the appeal is no longer live.

For the purposes of the fees regulations and this guidance a reference to “junior counsel” or “junior” means counsel who is not senior counsel.

For the purposes of the fees regulations and this guidance a reference to ““senior counsel” and “senior” are to be construed in accordance with paragraphs (1A) and (1B). These state:

“(1A) Subject to paragraph (1B), for the purposes of these Regulations, counsel is senior counsel if –

1. at the time of being employed in relation to the proceedings , the counsel had attained the rank and dignity of Queen’s Counsel; or
2. in the case of a solicitor advocate –
   1. at the time of being employed in relation to the proceedings, the solicitor advocate was accredited by the Law Society to act as senior counsel for the purposes of these Regulations; and
   2. the work undertaken by the solicitor advocate was consistent with the nature of the work ordinarily undertaken by a senior counsel.

For the purposes of the fees regulations and this guidance a reference to “counsel” includes a “solicitor-advocate” subject to the following no counsel is to be treated as senior counsel for the purposes of these Regulations unless –

1. the proceedings relate to a prosecution or conviction for murder; or
2. the Board has approved the employment of senior counsel under regulation 14 of the Criminal Legal Aid (Scotland) Regulations 1996.”

Paragraph 3(b) of the notes on operation states:

“junior counsel’s fees shall be allowable as prescribed in Chapter 1 of Parts I to III of the Table of Fees even where sanction has been granted for the employment of senior counsel in the case, except in any case to which sub-paragraph (c) and sub-paragraph (ca) below applies.”

Where prior approval is in place for more than one counsel, for example for senior and junior, or for two junior, junior counsel can be paid as ‘junior alone’ unless they are leading another junior or where sub-paragraph (c) or (ca) below applies.

Paragraph 3(c) of the notes on the operation states:

“where a junior as leader (that is, the principally instructed junior as leader in the proceedings) is representing an accused person in a multiple accused case at first instance and where any co-accused is represented by senior counsel, the fees payable to junior as leader shall be those prescribed in the Table of Fees for junior as leader, and the fees payable to any junior counsel assisting junior as leader shall be those of junior with leader.”

For the purpose of this paragraph we consider ‘representing’ to be in the context of the conduct of any court hearing where counsel’s attendance is required.

For any other work item this paragraph does not apply.

Where prior approval is in place for more than one counsel to act in the case, and senior counsel is representing any co-accused at a hearing you must assess any such claims on the following basis.

We will allow the principally instructed ‘junior as leader’ in the case to be paid as ‘junior as leader’ where we are satisfied that co-accused is represented by senior counsel at any court hearing even where the ‘junior as leader’ attended alone.

Where another junior counsel covers the principally instructed ‘junior as leader’, and attends any court hearing alone they cannot be paid as ‘junior as leader’ and we will only pay them as ‘junior alone’ given that they are not the principally instructed ‘junior as leader’ in the case.

Where prior approval is in place for senior alone, but junior counsel is instructed, we will pay junior counsel as ‘junior alone’ given they cannot be considered as principally instructed ‘junior as leader’ in the proceedings.

Where it is not clear why the ‘junior as leader’ rate is charged we will allow the relevant fees to ‘junior alone’ and seek further information in support of any such charge.

Paragraph 3(ca) of the notes on the operation states:

“where junior counsel being led is unable to appear at a trial diet hearing, and the junior as leader has sought and has been granted leave of the court to continue alone at the trial diet hearing, the fee payable to junior as leader will be those prescribed in the Table of Fees for junior as leader.”

Where prior approval is in place for more than one counsel to act in the case and during a trial diet ’junior as leader’ continues alone, following the unavailability of ‘junior with leader’, we will allow ‘junior as leader’ rates.

Only where we have information to suggest that court had not granted leave to the ‘junior as leader’ to continue alone will we reduce the relevant fees to junior alone and seek further information in support of the charge that has been claimed.