Recommendation of Solicitor Advocates as suitable for remuneration as “senior” in Criminal Legal Aid cases

The background to accreditation

Since the establishment of Solicitor Advocates the legal aid system has allowed for payment to them according to whether sanction has been granted by the Scottish Legal Aid Board (SLAB) for the employment of “Senior Counsel”. This has meant that Solicitor Advocates conducting the most serious criminal cases have been paid the same as QCs conducting those cases, where such sanction has been granted. Such Solicitor Advocates have required no additional status or recognition to be able to secure these payments. SLAB and the Scottish Government have advised the Law Society of Scotland that the current situation will not be allowed to continue. An accreditation scheme is therefore proposed to create a list of Solicitor Advocates who have been recommended as suitable for remuneration as senior in Criminal Legal Aid cases.

The Law Society of Scotland is keen to stress that this scheme is not an alternative QC structure. The scheme aims to ensure that there is some independent element available to check that payments from public funds are being made appropriately. The QC system still exists and, notwithstanding legitimate concerns and criticisms, it is a path available to Solicitor Advocates.

Accreditation will be given to those Solicitor Advocates who are the most able and experienced and have demonstrated the ability to deal with the most serious cases. The standard to be achieved for this recommendation is that of a Solicitor Advocate who, by his practice, experience, expertise and legal ability has demonstrated that he is of high standard as an advocate in the High Court of Justiciary, whether sitting as a court of first instance or as a Court of Appeal. It is also essential that there is nothing in the conduct, affairs or circumstances of an applicant that would make his recognition inappropriate.

As part of this exercise Solicitor Advocates with four years of experience will automatically be entitled to claim remuneration as “junior as leader.”

The Accreditation Scheme

1. The applicant must have a minimum of 7 years experience as a solicitor advocate. The applicant should, during that time, have exercised his extended rights of audience regularly. In special circumstances extensive experience in the Sheriff or other relevant court or equivalent experience as an advocate will be considered. The applicant must demonstrate a high standard of advocacy and legal ability. Ongoing CPD will also be relevant.

SWA/0020/00012/6367452.1 2 2. An application form must be completed by the applicant and submitted to the Law Society of Scotland. It will be in a similar format to the application to become a solicitor advocate. Confirmation from the Law Society that the candidate is a fit and proper person for remuneration as senior and there are no criminal convictions, matters of professional misconduct or disciplinary matters relevant to the applicant will also be included.

3. Information regarding the applicant's conduct of court business in the last 2 years must be detailed in the form and cases which support the application should be identified. Details should be provided of the judge, prosecutor, instructing solicitor and any co accused's counsel. Such individuals may be approached by the assessment panel to discuss the applicant’s conduct of any of the cases in question. Some information regarding the work undertaken is also required. These details are to provide the committee with an understanding about whether the applicant is dealing with matters which would ordinarily be dealt with by senior counsel.

4. Applicants should provide two references from persons who have a good knowledge of the ability and character of the applicant and his conduct of cases in court. It would be helpful if at least one of the references is from a High Court Judge, failing whom a Sheriff.

5. Names of the applicants will be sent to the President of the Law Society of Scotland who will advise the assessment panel of any adverse comments received in relation to any of the applicants’ conduct in court.

6. The application form will be considered by an assessment panel appointed by the President of the Law Society of Scotland comprising the President of the Society of Solicitor Advocates (“the SSA”), the Criminal Vice President of the SSA, a member of the Council of the Law Society of Scotland and a lay person. The assessment panel shall be considered a Committee of the Law Society of Scotland and have the appropriate delegated authority from Council to discharge its duties and functions.

7. Applicants may be interviewed.

8. The president of the SSA can co-opt another person on to the panel or to carry out enquiry into the relevant cases provided by the applicant.

9. Following consideration of the applications, the Chairman of the Assessment panel will compile a list of Solicitor Advocates suitable for remuneration as senior in Criminal Legal Aid cases which will be intimated to SLAB and the Law Society of Scotland. Confirmation that an individual’s name is included on this list will be given to that person in writing by the Law Society of Scotland.

10. An applicant has a right of appeal to the Court on law or facts.

3 11. The assessment panel will consider the renewal of the accreditation every 5 years. The purpose of review is to check that those accredited continue to be suitable for inclusion on the list. Regard will be had, in particular, to the relevant use of rights of audience in cases appropriate for such recognition. Accreditation can be revoked only if the senior solicitor advocate has had notification of the panel’s concerns and the opportunity to make written and/or oral submissions to the panel. The assessment panel must be unanimous in its decision to revoke accreditation.