The limitation on fair trial rights in summary criminal processes: implications for Vietnam from the experience of England and Wales
thesisposted on 28.03.2022, 14:36 authored by Dat Tien Bui
Minor offences account for the vast majority of criminal cases and for the most part they are subject to few of the protections of fair trial rights. The extent to which procedural rights can be limited in dealing with these offences is controversial and has not been rigorously examined. This thesis aims to investigate this issue in order to propose reforms to the Vietnamese minor offences legal framework, by offering and drawing upon a critical analysis of the experience of the United Kingdom (and in particular, the criminal jurisdiction of England and Wales). The analysis reveals a natural convergence between the cases of the England-Wales and Vietnam, concerning the expansion, fragmentation and due-process evasion of minor offence justice. Regarding a theoretical framework, this study seeks an account of crime and criminal processes that is most suitable for practice, and most compatible with the broad notion of a criminal charge under international human rights instruments. It is argued that minor offences should be considered forms of public wrong that warrant a short period of imprisonment or a non-custodial punishment. The fragmentation of minor offences into several groups calls for a suitable approach to procedural proportionality: The procedure for each type of offence should be proportionate to the severity of the punishment and should ultimately be fair as a whole. Procedural proportionality is endorsed as key for the constitutionality of summary processes. To assess the constitutionality of limitations on fair trial rights, the thesis develops two analytical tools, serving as prerequisites for the overall balancing of the proportionality test. First, it proposes a form of reasoning about three models of two-stage overall fairness and analyses their suitability for different types of offences. Second, it makes a suggestion about the inviolable core of procedural due process, the latter being comprised of several absolute elements of the right to a fair trial. As a contribution to Vietnam’s legal reform, the thesis analyses the challenges of incorporating a human-rights-limitation principle into the 2013 Constitution and argues for an extension of fair trial rights to minor offence justice. By examining the useful lessons of the English system, this study advocates the idea of treating minor offences as types of criminal offence, and embracing procedural pragmatism and procedural proportionality in Vietnam, rather than a due-process-evading form of justice.