Appointment of King's Counsel in Scotland 2024 Report by Keith Connal, Independent Observer

2024 Appointment Round

The Right Hon. Lord Carloway, in his capacity as Lord Justice General, intimated to the First Minister on 15 January 2024 his intention to invite applications for appointment as King’s Counsel and as Honorary King’s Counsel. The First Minister replied on 23 February agreeing to these appointment rounds proceeding, noting the intention to introduce these appointments at the opening of the new Legal Year in September.

The Guide for Applicants explains that there is no fixed quota of King’s Counsel to be appointed at any time and that the Lord Justice General endeavours to ensure, in the interests of the public, clients and the courts, that an adequate number of King’s Counsel generally, and in specific areas of specialisation, is maintained. Each year, to inform the appointment round, the Lord Justice General discusses with the Dean of the Faculty of Advocates whether there is a shortage of King’s Counsel with certain specialisms: this year these were in the fields of criminal and family law.

Advertisements were placed on the Judiciary website and via the Law Society of Scotland and Scottish Legal News (including a post on LinkedIn) on 5 March. Notice was also sent by email to the Faculty of Advocates, the Society of Solicitor Advocates and the Law Society of Scotland.

Whilst this is less publicity in comparison with many public appointment processes, it is in line with recent practice and is appropriate given the relatively limited field of potential applicants.

Separate application forms were provided for advocates and solicitor advocates. These require a self-assessment, in which applicants are asked to provide details of their experience and capabilities against the criteria in the Guide for Applicants and to set out why they consider themselves suitable for appointment. The three criteria in paragraphs 3.2 to 3.5 of the Guide are: Advocacy; Legal Ability and Experience; and Professional Qualities.

For this year’s round, some changes were introduced to the wording of the Legal Ability and Experience criteria in the Guide to recognise that, with changing practices in the courts, junior counsel have less opportunity than in the past to undertake appellate work: including because there is now more reliance on written submissions and senior counsel are increasingly being instructed to appear alone to make the oral submissions; the Sheriff Appeal Court now deals with the majority of criminal appeals; and there are now far fewer reparation cases heard by the Divisions of the Inner House. Changes to the availability of appellate court work for junior counsel was noted in my predecessor’s report on last year’s appointments.

The changes to the criteria required applicants to have a high quality practice which will ‘include demanding cases’, rather than requiring a high quality practice ‘based on demanding cases’; and to have ‘experience’ in advocacy at first instance and appellate level, rather than ‘extensive experience’ in advocacy at both first instance and appellate level. The reference to particular significance being attached to cases in the official Session Cases reports was adjusted this year to refer to Session and Justiciary Cases reports.

The Legal Ability and Experience criteria also had new text added to recognise that some applicants may have had limited experience of advocacy in the Civil Divisions of the Court of Session because of the nature of their practices and the absence of opportunities to appear at that level: applicants were asked to provide a brief account of their experience in that regard.

All applicants were required to obtain two references from senior members of the legal profession fully familiar with their work, with many of the applicants providing references from judges. Referees were provided with a simple form to help structure their comments against the three criteria and almost all referees used the form.

Applicants were asked to complete a confidential Equalities Monitoring Form which they were advised would be detached and not used in the decisions on appointment.

The closing date for applications was 2 April and contact details were provided for enquiries.