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The limitation on fair trial rights in summary criminal processes: implications for Vietnam from the experience of England and Wales

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posted on 28.03.2022, 14:36 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.

History

Table of Contents

Chapter 1. Introduction -- Chapter 2 (Article 1). Procedural proportionality : the remedy for an uncertain jurisprudence of minor offence justice -- Chapter 3 (Article 2). How may tiers of criminal justice in England and Wales? An approach to the limitations on fair trial rights -- Chapter 4 (Article 3). Due-process-evading justice : the case of Vietnam -- Chapter 5 (Article 4). The expansion and fragmentation of minor offence justice : a convergence between the common law and the civil law -- Chapter 6 (Article 5). Assessing the overall unfairness of limitations on fair trial rights in summary criminal processes : a remedy for the due-process-evading justice -- Chapter 7 (Article 6). A quest for due process doctrine in Vietnamese law : from Soviet legacy to global constitutionalism -- Chapter 8. Conclusion -- Bibliography.

Notes

Thesis by publication. Bibliography: pages 221-247

Awarding Institution

Macquarie University

Degree Type

Thesis PhD

Degree

PhD, Macquarie University, Faculty of Arts, Macquarie Law School

Department, Centre or School

Macquarie Law School

Year of Award

2017

Principal Supervisor

Carlos Bernal Pulido

Additional Supervisor 1

Sevaldurai. Niloufer

Rights

Copyright Dat Tien Bui 2017. Copyright disclaimer: http://mq.edu.au/library/copyright

Language

English

Jurisdiction

Great Britain

Extent

1 online resource (x, 247 pages)

Former Identifiers

mq:70208 http://hdl.handle.net/1959.14/1261316