Approval of counsel at the Petition stage in High Court proceedings

Where we receive notification from Crown Office that a case is to be prosecuted in the High Court we will notify you that automatic approval for the employment of counsel has been put in place. This does not need our prior approval.

Where a case has been identified as a High Court case and is subsequently indicted in the Sheriff Court our prior approval is required for counsel’s continued instruction.

If the application makes reference to the potential for early resolution of the case we will initially part grant that application for a consultation only which will allow counsel to discuss the terms of section 196 of the 1995 Act with the accused.

If, after consultation with counsel, the accused wishes to plead guilty by section 76 indictment then the initial part grant can be extended to include all work required for the section 76 plea.

Where we receive an application for prior approval for counsel very shortly after an accused person has appeared on petition we will refuse the application on the basis that it is premature and much of the early preparation in a case can be carried out by a solicitor (as dealing with the early stages of preparation and initial Crown disclosure is not of itself novel and/or complex).

Where a case has been identified as a High Court prosecution and there are pre indictment hearings calling in the Sheriff Court, a separate grant of prior approval is required for counsel to conduct those proceedings.

Any application for counsel to conduct full committal proceedings or a bail review will normally be refused on the basis that such proceedings are not considered novel and/ or complex.

Where the application relates to a section 65 hearing (application by the Crown to extend the time bar for service of the indictment) that will usually be granted in that the outcome of such a hearing may have a significant impact on the case.

Any application by the Crown for a warrant to obtain samples should be supported by information detailing why the matter is novel or complex. Where sufficient information setting out novelty and/or complexity is provided we will normally grant the application. The fact that the Crown wish to obtain samples from an accused person is not sufficient, of itself, to make the employment of counsel appropriate.

Where approval has been granted for counsel to conduct the trial, the grant includes necessary consultations with the accused and necessary notes (including an opinion or substantive note on the line of evidence that is integral to the accused’s defence.

In High Court prosecutions the grant of prior approval covers all necessary consultations with the accused, any necessary notes and attendances at preliminary hearings. Where multiple counsel have been approved for the conduct of the case, their attendance at continued preliminary hearings and diets of deferred sentence is subject to the terms of paragraph 3(eb) of the Notes on Operation of Schedule 2 of the Criminal Legal Aid (Fees)(Scotland) Regulations 1989.

If we receive an application in those terms it will be refused on the basis that it is not a matter covered by prior approval (see above).

Any consultations with expert witnesses require separate approval and do not form part of the original grant. When assessing applications for prior approval for consultations we will consider the following:

• has sufficient detail been provided to explain the purpose of the consultation and what specific matters require to be discussed and / or clarified with the expert? If the application lacks information it should be refused or continued for additional information
• could the work described be carried out by the instructing solicitor in the form of a precognition? If the matter requiring discussion or clarification does not appear complex then the application should be refused
• does more than one counsel (in cases where we have approved multiple counsel) require to attend? If this does not appear necessary then the application should be part granted (assuming you are satisfied that the consultation is appropriate?
• is a face to face consultation necessary? If counsel intend to travel any distance then you should continue the application and ask whether the work could be conducted remotely (again, assuming you are satisfied that the consultation is appropriate).