A Lord Advocate's Reference is a

procedure Procedure may refer to: * Medical procedure * Instructions or recipes, a set of commands that show how to achieve some result, such as to prepare or make something * Procedure (business), specifying parts of a business process * Standard operat ...

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 po ...

can refer a point of law 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 als ...

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 Cou ...

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 th ...

. 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, 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 v ...

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 In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the ...

, especially in relation to submissions tendered under section 97 of the

Criminal Procedure (Scotland) Act 1995 Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...

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 Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...

. 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. 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 An assault is the act of committing physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in cri ...

* 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 ''Legality of the Threat or Use of Nuclear Weapons'ICJ 3] is a landmark international law case, where the International Court of Justice gave an advisory opinion stating that while the threat or use of nuclear weapons would generally be contrary ...

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 ...

, the equivalent power can be exercised by the

Attorney General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

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

Statutory provisions

Examples

Equivalents

See also

References