B00402250

Advanced Criminal Law Part 2

Part A

My chosen topic is on verdicts. The reason being is that the area of law itself

is relevant and impactful in today’s society as verdicts have real life consequences

for individuals involved in the legal cases. Discussing verdicts allows me to explore

the impact it has on individuals lives and society, which helps me to develop my

critical thinking skills and examine the arguments and reasoning behind different

decisions. This also helps me to empathise with their experiences and validate their

feelings. Due to this I was able to look at the advantages and disadvantages of the

Not Proven verdict and analyse how the public views this area of law. I was able to

learn more while doing my research on the Not Proven verdict. The Not Proven

verdict has a negative impact on individuals who are victims of rape, which I was to

learn more about while doing this research as I was not aware of the effect it had on

some individuals, more than others.

In addition, I found verdicts to be an interesting area of law as it is engaging

and informative especially since I have a personal interest in how a legal decision is

brought about and how different individuals view them and what their opinion is. This

made me more curious about the Not Proven verdict in Scots Law and made me

want to research it in more detail and find out that there are many arguments

whether if the Not Proven verdict should be reformed for not. This also allowed me to

communicate and engage with others who are also interested in verdicts.

Part B: Adversarial System of Justice

Introduction

Adversary is defined as ‘one's opponent in a contest, conflict, or dispute'

according to the Oxford Dictionary. This gives us a sense of the adversarial legal

system in England and Wales. In this system, each party's representatives argue

against each other.

The concept of the adversarial system can be viewed as a spectrum. This is

because it permits varying degrees of opposition based on the distinct circumstances

and legal authority involved. The adversarial system is versatile, balancing dispute

resolution flexibility with consistent principles like unbiased adjudication and

argument competition1.

The Civil Procedure Rules 1998 controls how civil litigation is conducted. The

purpose of the Act is to encourage a just and effective procedure for settling

disagreements between parties. To ensure that cases are handled fairly and

effectively, the act sets out the rules and procedures that parties must follow to

throughout litigation. The act provides the procedural framework that the adversarial

system functions in, which is how the act, and the adversarial system are linked 2.

The authorities

The judge or jury in an adversarial system renders a verdict considering the

arguments and facts that have been presented. In criminal proceedings, the

judgement often consists of a finding of guilty or not guilty, and in civil matters, of

liability or no responsibility.

1
Leslie Thomas KC, ‘Does the adversarial system serve us well?’ (The Law Association, 20 April 2023) <Does the
adversarial system serve us well? - The Law Association> accessed 7 November 2023
2
Rodger Benefiel, ‘Adversarial System of Justice’ (Oxford Bibliographies, 26 May 2022) <Adversarial System of
Justice - Criminology - Oxford Bibliographies> accessed 7 November 2023
 In Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020]3, the courts

emphasised that instead of performing a more general inquisitorial role to determine

the truth, the courts in the adversarial legal system are tasked with enforcing fairness

amongst the parties about how they have framed and prosecuted their individual

case. This also shows that the judge's job is to ensure fairness and stay impartial

until giving the final decision4. In this system, the judge serves as an impartial judge

who makes sure the judicial system is equitable.

Judges do not actively participate in conducting independent investigations or

seeking for evidence, even though they rely their rulings on the arguments and facts

that are given. This could be seen in R v Whithorn (1983)5, as it highlights that the

judge’s role is to settle disputes between the opposing parties without getting

involved.

The selection of points to raise, the evidence to provide in support of those

arguments, and the witnesses to call are all left up to the lawyers6.

Benefits and Drawback

An advantage of the adversarial system is that individuals are given the right

to remain silent, retain legal representation to help them present his case, and

maintain innocence until proven guilty. The prosecution is also permitted to present

the facts in their own interpretations and understandings. In addition, advice is given

to the government on all criminal proceedings7.

3
Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24
4
Andrew Perkins, ‘Differences between an Adversarial and an Inquisitorial Legal System’ (Ashfords, 1 October
2015) <Differences between an Adversarial and an Inquisitorial Legal System | Ashfords> accessed 7 November
2023
5
R v Whithorn (1983) 152 CLR 657
6
All Answers ltd, ‘Adversarial and Inquisitorial Systems of Justice’ (Lawteacher.net, 26 August 2021)
<Adversarial and Inquisitorial Systems of Justice (lawteacher.net)> accessed 7 November 2023
7
Editor in Chief, ‘11 Advantages and Disadvantages of Adversarial System’ (Connectus, 27 July 2016) <11
Advantages and Disadvantages of Adversarial System – ConnectUS (connectusfund.org)> accessed 9 November
 Opponents of the adversarial system contend that it may disadvantage some

parties, especially those without access to resources or legal counsel, and that it

might cause an emphasis on winning rather than discovering the truth 8. The system

allows lawyers to frequently use a variety of ways to weaken or discredit the

opposing side's case, including hiding or even altering evidence, failing to summon

witnesses, and employing rhetorical techniques to sway the jury or judge. While

some of these strategies could be valid, others might not be9.

Reforming Adversarial System of Justice

According to those who argue for an inquisitorial approach to “inquisitorial”

criminal justice, a criminal trial should serve the purpose of attaining a high degree of

factual accuracy, and an inquisitorial system may provide a better way to determine

'the truth'.

There is a belief that the adversarial criminal justice system is ineffective and

that trials are too expensive. We may consider how the complexity of the world has

increased, resulting in an extensive and intricate body of criminal law. Reformers

have instead advocated for the adoption of some parts of an inquisitorial procedure

to increase the speed of fact-finding, but this ignores the principles of due process

that are fundamental to the adversarial method10.

2023
8
Leslie Thomas KC ‘Does the adversarial system serve us well?’ (The Law Association, 20 April 2023) <Does the
adversarial system serve us well? - The Law Association> accessed 9 November 2023
9
Professor Leslie Thomas KC, ‘The adversarial system of justice – a flawed approach?’ (Counsel, May 2023)
<The adversarial system of justice – a flawed approach? | COUNSEL | The Magazine of the Bar of England and
Wales (counselmagazine.co.uk)> accessed 9 November 2023
10
Pamela R Ferguson ‘Reforming Criminal Procedure: Should Adversarial Systems of Justice Become More Like
Inquisitorial Ones?’
Bibliography
All Answers ltd, ‘Adversarial and Inquisitorial Systems of Justice’ (Lawteacher.net, 26
August 2021) <Adversarial and Inquisitorial Systems of Justice (lawteacher.net)>
accessed 7 November 2023
Benefiel, R, ‘Adversarial System of Justice’ (Oxford Bibliographies, 26 May 2022)
<Adversarial System of Justice - Criminology - Oxford Bibliographies> accessed 7
November 2023
Editor in Chief, ‘11 Advantages and Disadvantages of Adversarial System’
(Connectus, 27 July 2016) <11 Advantages and Disadvantages of Adversarial
System – ConnectUS (connectusfund.org)> accessed 9 November 2023
Ferguson R, P, ‘Reforming Criminal Procedure: Should Adversarial Systems of
Justice Become More Like Inquisitorial Ones?’
Perkins, A, ‘Differences between an Adversarial and an Inquisitorial Legal System’
(Ashfords, 1 October 2015) <Differences between an Adversarial and an Inquisitorial
Legal System | Ashfords> accessed 7 November 2023
Thomas KC, L, ‘Does the adversarial system serve us well?’ (The Law Association,
20 April 2023) <Does the adversarial system serve us well? - The Law Association>
accessed 7 November 2023
Thomas KC, L, ‘Does the adversarial system serve us well?’ (The Law Association,
20 April 2023) <Does the adversarial system serve us well? - The Law Association>
accessed 9 November 2023
Thomas KC, L, ‘The adversarial system of justice – a flawed approach?’ (Counsel,
May 2023) <The adversarial system of justice – a flawed approach? | COUNSEL |
The Magazine of the Bar of England and Wales (counselmagazine.co.uk)> accessed
9 November 2023

Case laws
R v Whithorn (1983) 152 CLR 657
Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24

Legislation
Civil Procedure Rules 1998

Declaration

I hereby declare that:

I have read and understood Regulations 3.49—3.55 of Chapter 3 of the Regulatory

Framework of the University of the West of Scotland regarding cheating and
plagiarism.
This assessment is the result of my own work, except for those parts that are
explicitly referenced, and contribution of others is clearly indicated.

No material presented in this assessment has been presented or written, wholly or in

parts, by any other person(s).

This assessment has not been submitted — partially or in full — in support of the
completion of assessment(s) on any other module, regardless of previously or the
current academic year (self-plagiarism).

Date: 12/11/2023