General issues in appeals

Where prior approval is in place for more than one counsel to represent the assisted person, and the Table of Fees provides a fee for ‘junior with leader’ for work done assisting ‘junior as leader’ or senior, we will allow a fee to both counsel at the relevant prescribed fee or within the prescribed range.

Where a range of fees exist (for example, ‘written Submissions in Appeal against conviction or conviction and sentence’) we must be satisfied that the work done by each counsel is reasonably reflected in the fee charged.

Where a flat rate is prescribed (for example, ‘drafting Grounds or Note of Appeal against sentence’) both counsel can be paid the prescribed rate.

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

“except on cause shown (and subject to sub-paragraphs (ea) and (eb)), fees for senior counsel or, as the case may be, for both senior and junior counsel or for more than one junior counsel shall not be payable for attendance at hearings which do not require the attendance of senior or, as the case may be, both senior and junior counsel or more than one junior counsel”.

If we are not satisfied that two counsel were necessary at a particular hearing we will allow the attendance of one counsel only and invite the second counsel to provide further information in support of your claim.

Hearings where we would ordinarily consider one counsel to be sufficient include procedural diets, unopposed hearings, bail appeals or at any diet where there is no substantial procedure anticipated.

This is not intended to be an exhaustive list and we will consider each attendance on its own merits having regard to any applications for prior approval that have been authorised and which may specifically allow for the attendance of more than one counsel.

From time to time we may encounters a situation where there are multiple grants of legal aid and where counsel is instructed to make a separate and distinct appeal in each case.

In such cases each case must always be considered on its own individual facts and circumstances and we will consider all information provided in support of any such claims in order that we can reach an informed view as to whether more than one claim would be justified in the particular circumstances of each case.

The majority of legal aid grants will cover a single set of proceedings.

However, where an appeal is initiated following convictions on split indictments we recognise that it may be necessary for counsel to draft and lodge separate documents to meet the court’s requirements.

For example, where the court sentence each matter separately it may be necessary for you to draft and lodge separate grounds of appeal against sentence.

Where we are satisfied that the appeals were dealt with as distinct matters by the court we may may allow separate fees.

Even where the issues are the same, or broadly similar, it will be necessary for separate and distinct documents to be drafted and lodged.

Where the grounds or note of appeal, or written submissions, are payable at a standard rate we will allow the prescribed fee for each case unless we have information that would justify a restriction, in full or in part, to the fees being claimed.

Where the grounds or note of appeal, or written submissions, are payable within a range of fees, and the issues that arise are identical or very similar in nature we would ordinarily expect the complexity of the case to be reflected in any enhanced fee allowed for the primary appeal, where appropriate.

Any similar grounds or note of appeal on any other cases addressing the same or similar points will ordinarily be payable at the relevant base rate.

Each case will be set down to be heard separately.

Where the appeal hearing is payable at a standard rate we will allow the prescribed fee for each case.

Where the appeal hearings are payable within a range of fees, and the issues that arise are identical or very similar in nature we would ordinarily expect the complexity of the case to be reflected in any enhanced fee allowed for the primary appeal, where appropriate.

Any further appeal hearing on the same day addressing the same or similar points will ordinarily be payable at the relevant base rate.

In circumstances where the issues that are subject to opinion are identical, or broadly similar in nature, we would ordinarily expect a single opinion fee to cover all matters.

Where leave to appeal has been refused at the first sift, an appellant may make an application to the second sift.

While it is not expressly required by the court it is reasonable for the agents to obtain an opinion from counsel supporting the application for leave to appeal to the second sift by reference to specific matters which are said to be arguable and explaining why and how they fall to be treated as arguable.

In accordance with Criminal Practice Note 2 of 2015, all documentation must be intimated to the Crown before the court will consider this at the second sift stage.

We will allow a fee for an opinion from counsel in line with Auditor of the Court of Session decision in the case LK v HMA.

A fee for written submissions is not permissible at the sift stage and any such claim will be reduced to the fee for an opinion.

Where you wish to provide some additional commentary that is not to be provided to the court, a single opinion ought to be sufficient, due regard being had to economy.

In such cases, where you charge fees for two opinions we will normally allow one opinion fee only in the absence of information being provided in support of two separate and distinct fees.