Lord Advocate's Reference

A Lord Advocate's Reference is a mechanism by which the Lord Advocate, the chief legal officer of the Scottish Government, can refer a point of law which has arisen during the course of solemn proceedings, to the High Court of Justiciary sitting as the Court of Criminal Appeal, for a determination. 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 Advocates Reference's commonly arise out of criminal trials which involve the interpretation of new or complex issues of Scots law. Crucially, there is no time limit for the reference to be submitted to the court.

Lord Advocates 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, a trial judge sitting alone in solemn proceedings and bound by appeal court precedent had to rule on points of law without a Crown right of appeal. This resulted in several controversial verdicts of acquittal, especially in relation to no case to answer submissions tendered under section 97 of the Criminal Procedure (Scotland) Act 1995.

The ability of the Lord Advocate to refer points of law to the High Court of Justiciary for an opinion, is provided for by section 123 of the Criminal Procedure (Scotland) Act 1995.

The panel at the trial diet from which the reference originates has a statutory right to be present at the hearing and be represented, either by themselves or by counsel. If they decline to appear or be represented, the court will appoint counsel to act at the hearing as amicus curiae. Regardless of whether the person decides to attend or not, the cost of their counsel or amicus curiae must be met by the Lord Advocate. It is also common for the Advocate General for Scotland to be represented at a Section 123 hearing.

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