Factors that may justify the employment of junior counsel

As a registered children’s solicitor, you are capable of conducting the vast majority of children’s cases in the sheriff court. We will only approve junior counsel to act in these cases where you can show this is appropriate.

We consider all the circumstances of each individual case.  The existence of a factor or factors will not automatically trigger an approval for counsel but will enable us to make an informed decision on whether or not the employment of counsel is appropriate.

We will take the following factors into consideration when deciding if prior approval for counsel is appropriate in a particular case:

If you intend to rely on this factor then you must tell us if:

• the case is complex and you must explain why this is so
• there are complicated legal arguments to be made and you must tell us what these are
• the legal issues in the case are not something that you would ordinarily face in usual proceedings of this nature. You must explain what these particular legal issues are
• the issues, legal or otherwise, in the case have not been raised before. You must explain what these are
• there is conflicting or evolving case law which applies to the case and you have explained what this is
• counsel’s expertise is likely to help to present the complex , novel and/or sensitive information in a way that will help the court to determine the matter more efficiently
• the court in question has recognised the potential complexity in this case by categorising it as a ‘complex case’ and/or assigning more than one judge to hear the case. A sheriff court case being designated a ‘complex’ case will not automatically satisfy the appropriateness test but it can be a persuasive factor depending on the other issues involved.

In addition to the above, if the application is for counsel to conduct a S101 statement of grounds proof in the sheriff court, you must tell is if:

• the Grounds contain serious and/or particularly sensitive allegations of high level physical and/or emotional abuse or neglect or medium to high level sexual abuse and/or
• the Reporter is relying on complex medical evidence to attempt to prove a non-accidental injury case and you have instructed your own medical expert or experts whose reports show that there are issues or areas of dispute concerning contradictory and complex medical evidence to put forward and cross examine on at proof and/or
• the medical experts you, or another party, have instructed or obtained do not support the Reporter’s position and/or
• there is a realistic prospect that the child will be called to give evidence of a sensitive nature and/or against their parents or relevant persons. A child giving evidence does not automatically satisfy the appropriateness test but it is a persuasive factor depending on the issues involved and the nature of the evidence they are likely to give and be cross examined on.

If the application is for counsel to conduct offence statement of grounds allegedly committed by the child then this factor will not usually be met where:

• the solicitor represents the child and the offence grounds are those which they would usually conduct had they been prosecuted in the JP or Sheriff Court and
• you tell us that you have little or no experience in conducting criminal cases unless there is no possibility of passing the case onto a solicitor/firm in the area local to the child who has such experience.

We acknowledge that any evidence given at a children’s proof and/or any acceptance or findings of established Grounds can be used as evidence in any future criminal trial against the relevant or deemed relevant person. This will not, of itself, automatically satisfy the appropriateness test and can be stated to be the case in the majority of cases.

If the applicant is the child and the Reporter has referred them on offence grounds then the child can never be prosecuted in an adult court for the same alleged offence. If you state this in an application we will ignore it as it is incorrect.

Where you intend to rely on this factor, you must tell us:

• if there are already related criminal proceedings raised against the applicant who is a relevant person or deemed relevant person or
• if not, if there is a realistic possibility that criminal proceedings could be raised in the near future against them and
• that these actual or likely criminal proceedings are serious proceedings which could result in a custodial sentence if proved and
• whether the applicant who is a relevant or deemed relevant person is already, or likely, to be represented by counsel in the related criminal proceedings and
• the stage that the criminal proceedings have reached.

This factor will usually not be met where:

• the applicant is the child and the Reporter has referred them on offence grounds, as the child cannot be prosecuted in an adult court for the same alleged offence
• the actual or likely criminal proceedings are those which a solicitor would usually undertake in the JP or Sheriff Court or
• you tell us that you have little to no experience in conducting criminal cases unless there is little to no possibility of passing the case onto a solicitor/firm in the nearby area who has such experience.

This factor may be met where you tell us that you need to appoint counsel in the case due to exceptional personal or business circumstances you find yourself unexpectedly in.

Where you intend to rely on this factor, you must tell us:

• what exceptional personal or business circumstances have occurred
• when this came to your attention/occurred
• when the case is next calling in court and/or requires further urgent work
• that there is insufficient time to pass the case to another firm or out on an agency basis.

Exceptional personal or business circumstances can include, but are not restricted to:

• the sudden illness or death of a key member of staff
• having a long standing involvement in the case but being unable to continue to conduct it and where the applicant still wants to continue to instruct you
• where you are unable to do some elements of work in the case in the short term and no alternative solicitor is available, including instructing a solicitor on an agency basis.

We consider that it is appropriate for counsel to appear in the majority of children’s appeals before the Sheriff Appeal Court unless they are very straight forward.

Where you intend to rely on this factor, you must tell us:

• what the issues to be looked at are
• in what way the issues are reasonably complex and/or novel. It is helpful to rely on the Stated Case here so if you have it then you should upload it ( assuming it has not already been uploaded on the case) and highlight/refer to the relevant parts and/or
• if counsel conducted the proceedings in the sheriff court or Sheriff Appeal Court that are the subject of this appeal.

If none of the above factors can be put forward to show counsel is appropriate to represent the applicant then it is unlikely that we will consider counsel is appropriate so you will require to put forward other factors to meet the appropriateness test.

Unless the applicant is a respondent in the appeal and fully supports the appellant’s position where the appellant is represented by counsel, this factor may be met where:

• another party in the proceedings is using counsel to conduct the case, and
• where there are no clear reasons to distinguish the position of the applicant from that other party.

Where you intend to rely on this factor, you must tell us:

• who the other party or parties are that are represented by counsel
• what level of counsel representation they have. For example , senior and junior counsel
• why that parties position in the court proof or appeal cannot be distinguished from your client’s position.

We will not, generally, consider the following to be factors in support of counsel:

• where non accidental injuries are alleged to have been inflicted and this has not been investigated further by you. We expect preliminary investigations to be carried out and do not generally consider that counsel is needed to help you with the instruction of medical experts to explain, confirm or refute the Reporter’s medical evidence nor to begin preparing the case. In the majority of such cases you should ask us for approval to instruct medical experts initially
• the need simply to lead evidence of an expert witness or witnesses, without reference to other relevant factors listed above
• cross-examination of social workers, health visitors, teachers, education welfare officers, nurses and doctors, including general practitioners, as we would not normally consider this to require counsel
• the likely length of the court hearing, proof of appeal. We expect a solicitor who takes on work of this nature to be able to set aside the appropriate time to prepare and to conduct the case.  You should consider the question of resources at the outset of a case when deciding to accept instructions and then throughout the progress of the case. Even where you have counsel approved to conduct a case then you still require to be there to instruct and assist them throughout the proceedings
• the need to communicate with your client and/or take evidence through an interpreter without reference to other relevant factors listed above
• the fact that vulnerable witness applications and/or child witness notices have been lodged and such persons are being called to give evidence without reference to other relevant factors listed above.