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 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.
Lord Advocate's references commonly arise out of criminal trials that involve the interpretation of new or complex issues of Scots law.
The cost of any counsel or amicus curiae must be met by the Lord Advocate, following a determination of fees payable by the Auditor of the Court of Session.
[citation needed] Section 74 of the Criminal Justice and Licensing (Scotland) Act 2010 introduced the right of the Crown 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.