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

Assessment

The Lord Justice General is solely responsible for determining which of the applicants should be nominated for appointment. He conducts a detailed assessment of each application, including checking any reported cases mentioned in the applications, and considers the references supplied. I had access to the Lord Justice General’s summary assessment of each applicant.

The Lord Justice General is assisted by the views of all the Senators of the College of Justice – the judges sitting in the Court of Session and in the High Court of Justiciary – and by a scoring panel of Senators appointed by the Lord Justice General to consider the applications in detail.

All judges had access to the applicants’ self–assessments and were invited to indicate if they have knowledge of the applicants’ performance in court and other settings and, if so, to express an opinion on their fitness for nomination as King’s Counsel. Several of the judges made specific reference to the application criteria when making their comments.

The role of the scoring panel is explained in paragraphs 4.8 to 4.10 of the Guide for Applicants. The panel comprises the Lord Justice General, the Lord Justice Clerk and five other judges from the Inner and Outer Houses.

Members of the panel are provided with a form on which to record scores on a five-point scale for the three selection criteria (from very well demonstrated to not demonstrated) and an overall assessment, unless the applicant is not sufficiently well known to them or if they consider the application is premature. The overall assessment can be that the applicant is well fitted now and sufficiently outstanding to merit appointment this year or is possibly ready now but not in the front rank of applicants for appointment this year or is not obviously fitted at present or is not fitted. The panel is also asked to comment on suitability for appointment, including indicating the currency of their knowledge.

The panel met on 27 June. The minutes record that the panel discussed the approach set out in the Guide for Applicants that applications will generally not be considered before the applicant has practiced in the superior courts for at least thirteen years, noting that this general rule would cause issues for some of this year’s applicants. The Guide says that there may be circumstances which make it appropriate to recommend an applicant who has practiced for less than that time, for example where the applicant has relevant prior experience. This year the panel agreed that three of the applicants who were called to the Bar or granted rights of audience as a solicitor advocate less than 13 years ago have sufficient other relevant experience to merit being nominated.

The minutes record that there was broad agreement by the panel with the proposed list of recommendations for appointment and that the panel then focused its discussion on applicants who were borderline or not being recommended. For one of these applicants, who had applied last year and who had received more positive comments from judges this year, additional very positive feedback was obtained from the judge presiding over a current trial in which the applicant was appearing, leading to the applicant being added to the list of nominees.