Where legal aid is granted for applying to the UK Supreme Court for special permission to appeal the UK Supreme Court Practice Direction 13 states at 15.8 that the general rule is that only one counsel’s fees is allowed on assessment for any stage of an application for permission to appeal unless a public funding or legal aid certificate authorises two counsel.

Our own guidance at Schedule 3, paragraph 32(b)(ii) of the Criminal legal Aid (Scotland) (Fees) regulations 1989, states that “there is a working assumption that a single fee is allowed for one junior counsel even where sanction is authorised for two counsel and that it would only be in exceptional cases that fees are allowable for two counsel”.

If we receive an application for the prior approval of two counsel at the permission stage we will refuse the application and advise you of the terms of the UK Supreme Court Practice Direction and our own guidance on the matter.

Where there is cover in place for proceedings in the UK Supreme Court one junior counsel, who is counsel qualified at the Scottish bar, can be instructed without our prior approval.

Where approval is sought for additional counsel then we need to be satisfied of the factors set out in the section ‘Two or more junior counsel’.

Where approval is sought to instruct counsel other than Scottish counsel, we will decide whether this is appropriate in all the circumstances of the case. The following factors will be relevant to your consideration:

  • if the case which is the subject of the appeal may not be finally determined by the appeal, meaning that there are likely to be further stages of the case calling before a Scottish court, then the instruction of counsel qualified at the Scottish bar is appropriate, as this would allow counsel to continue to act if the case is returned to a Scottish court. We will refuse the application in those circumstances
  • if the counsel to be instructed has particular expertise in the subject of the appeal which is not shared by counsel at the Scottish bar, we can grant the application
  • you should tell us about any other factors specific to the case which show that it is more appropriate to use counsel other than counsel qualified at the Scottish bar.

In this section