A Lord Advocate's Reference is a procedure by which the

Lord Advocate His Majesty's Advocate, known as the Lord Advocate ( gd, Morair Tagraidh, sco, Laird Advocat), is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved p ...

can refer a

point of law In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference ...

that has arisen during the course of

solemn proceedings Solemn proceedings is the term used in Scotland for serious criminal cases prosecuted on indictment before a judge and jury. These are distinct from summary proceedings before a sheriff or justice of the peace sitting without a jury. See also ...

to the

High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...

sitting as the Court of Criminal Appeal, for a determination. The Lord Advocate is the senior law officer of the Scottish Government, chief public prosecutor and head of the

Crown Office and Procurator Fiscal Service The Crown Office and Procurator Fiscal Service is the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by His Majesty's Lord Advocate, who under the ...

Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...

. Lord Advocate's References used to be particularly important because, prior to the coming into force of sections 73–76 of the

Criminal Justice and Licensing (Scotland) Act 2010 In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

, a trial judge sitting alone in solemn proceedings and bound by appeal court

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...

had to rule on points of law without a

Crown A crown is a traditional form of head adornment, or hat, worn by monarchs as a symbol of their power and dignity. A crown is often, by extension, a symbol of the monarch's government or items endorsed by it. The word itself is used, partic ...

right of appeal. This resulted in several controversial verdicts of acquittal, especially in relation to submissions tendered under section 97 of the Criminal Procedure (Scotland) Act 1995.

Statutory provisions

The opinions expressed by the court in response to the reference do not affect the original verdict of the court from which the reference originated, but rather serve to clarify or develop the interpretation of a particular point of law for the benefit of future proceedings. Lord Advocate's references commonly arise out of criminal trials that involve the interpretation of new or complex issues of Scots law. There is no time limit for the reference to be submitted to the court. Lord Advocate's References are provided for by section 123 of the Criminal Procedure (Scotland) Act 1995, which states: The panel (accused) at the trial diet from which the reference originates has a statutory right to be present at the hearing either in person or represented by an advocate. If they decline to appear or be represented, the court will appoint counsel to act at the hearing as . The cost of any counsel or ' must be met by the Lord Advocate, following a determination of fees payable by the

Auditor of the Court of Session An auditor is a person or a firm appointed by a company to execute an audit.Practical Auditing, Kul Narsingh Shrestha, 2012, Nabin Prakashan, Nepal To act as an auditor, a person should be certified by the regulatory agency, regulatory authority o ...

. It is also common for the Advocate General for Scotland to be represented at a Section 123 hearing. Section 74 of the Criminal Justice and Licensing (Scotland) Act 2010 introduced the right of the

to appeal against decisions of a court in solemn proceedings to dismiss a charge on the basis of ''no case to answer'' (under Section 97 of the Criminal Procedure (Scotland) Act 1995), and the right of the Crown to appeal against determinations on the sufficiency of evidence, and acquittals based on sufficiency of evidence.

Examples

* Lord Advocate's Reference (No 2 of 1992), see Assault * Lord Advocate's Reference (No 1 of 2001), see

Laws regarding rape Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapa ...

* Trident Three, see International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

Equivalents

England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...

, the equivalent power can be exercised by the Attorney General under s. 36 of the

Criminal Justice Act 1972 In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...

References

{{CriminalJusticeScotland Scottish criminal law Philosophy of law Evidence law