INFORMATION IN VIETNAMESE YOUTH SENTENCING THE THEORY AND PRACTICE OF A ‘RATIONALIST’ APPROACH TO DECISIONMAKING

INFORMATION IN VIETNAMESE YOUTH SENTENCING
THE THEORY AND PRACTICE OF A ‘RATIONALIST’ APPROACH TO
DECISION-MAKING

CHAU XUAN HOANG
A thesis submitted in partial fulfilments of the University of the West of England,
Bristol for the degree of Doctor of Philosophy

Faculty of Business and Law, University of the West of England, Bristol

May 2011


This copy has been supplied on the understanding that it is
copyright material and that no quotation from the thesis may be
published without proper acknowledgement


ABSTRACT

In Anglo-American jurisdictions, the „rationalist tradition‟ in the field of criminal justice, exemplified
by Bentham and Wigmore, has largely been applied and developed in the field of evidence at the trial
stage of the criminal process. This thesis argues that the „rationalist‟ approach to decision-making is
applicable beyond its original setting to at least the sentencing stage, and to other jurisdictions than
those that have a common law tradition. It then seeks to apply a rational decision-making model to
youth sentencing in Vietnam and in England and Wales, in the context of international norms
applicable to youth justice.
The thesis argues that if compliance with international and domestic law and norms concerning the
administration of juvenile justice is to be achieved other than by chance, sentencers‟ decision-making
must follow a rational approach. This means that sentencing decisions are only made in
circumstances in which sentencers are able to maximize the probability of achieving appropriate

sentencing objectives in each case on the basis of „relevant‟ and „reliable‟ information. To this end,
relevant and reliable information is a necessary pre-condition for rational sentencing. The level of
relevance and reliability of (a piece of) information depends on its nature, its source, and the form of
communication.
The thesis develops and applies a rational decision-making model to the youth justice process up to,
and including, the sentencing stage. In principle this model is, and should be, universal and suitable
for analysing and assessing the rationality of sentencing (in terms of available information necessary
for rational decision-making) in different jurisdictions with different procedural traditions.
By applying the model to youth sentencing in Vietnam and in England and Wales, this thesis
identifies problems in each. A significant finding is that Vietnamese sentencers do not have sufficient
information for the purposes of rational sentencing decisions. It is argued that an additional
mechanism for providing relevant and reliable information to Vietnamese sentencers is therefore
necessary. Given that both Vietnam and England and Wales require a rational youth sentencing
process in order to fulfil their international obligations, the thesis examines the English and Welsh
experience in the field. In particular, the thesis identifies the pre-sentence report as an appropriate a
tool for providing sentencers with the information necessary for rational sentencing, and argues that
suitably adapted it may assist Vietnam in complying with its international obligations.
i


STATEMENTS OF OBJECTIVES

The thesis aims to broaden knowledge of and interest in the field of comparative youth
justice.
The thesis aims to explore the international law relating to children and state parties‟
obligation to comply with those rules and standards.
The thesis aims to argue that the „rationalist tradition‟ can also be applicable to decisionmaking at different stages of the criminal justice process in different jurisdictions.
The thesis aims to build up a model of information flows within criminal justice system.
The thesis aims to compare the youth justice system in Vietnam and in England and Wales,
using the international law and the model of rational decision-making as comparative

criteria.
The thesis aims to assess the level of rationality in sentencing in Vietnam and England and
Wales in terms of sufficient information.
The thesis aims to assess the feasibility of applying the model of pre-sentence reports to
Vietnamese youth sentencing.

The author would like to acknowledge the use of all of the materials listed in the
bibliography. He would also like to acknowledge the invaluable support and assistance of
Professor Ed Cape and Dr Ben Pontin, the cooperation of the respondents surveyed and
interviewed for the empirical framework, the financial support from Project 322 of the
Ministry of Education and Training of the Vietnamese Government, and finally the
enormous sacrifice and support from his family for the thesis to be completed.

ii


ABBREVIATIONS

ASBO Antisocial Behaviour Order
ASSET Young Offender Assessment Profile
CAT Convention Against Torture
CEDAW Convention on the Elimination of Discrimination Against Women
CERD Convention on the Elimination of Racial Discrimination
CPCC Committee for the Protection and Care of Children
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ISSP Intensive Supervision and Surveillance Programme
PSR Pre-sentence Report
The Beijing Rules United Nations Standard Minimum Rules for the Administration
of Youth Justice

The CRC United Nation Convention on the Rights of the Child
The Havana Rules United Nation Rules for the Protection of Youths Deprived of
their Liberty
The Riyadh Guidelines United Nation Guidelines for the Prevention of Youth
Delinquency
The Tokyo Rules United Nations Standard Minimum Rules for Non-custodial
Measures
UNICEF United Nations Children‟s Fund
YJB Youth Justice Board for England and Wales
YOT Youth Offending Team
PCC(S) A 2000 Powers of Criminal Courts (Sentencing) Act 2000
CJA 2003 Criminal Justice Act 2003
CPYA 1969 Children and Young Persons Act 1969

iii


TABLE OF CONTENTS

CHAPTER 1 ..........................................................................................................................1
INTRODUCTION .................................................................................................................1
1

THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS ..................1

2

METHODOLOGY AND METHODS .......................................................................8

3

LIMITATIONS OF THE THESIS ...........................................................................10

4

CHAPTER SUMMARY ..........................................................................................12

CHAPTER 2 ........................................................................................................................15
THE INTERNATIONAL LEGAL CONTEXT OF YOUTH JUSTICE AND THE
CRIMINAL JUSTICE SYSTEMS OF VIETNAM AND ENGLAND AND WALES ......15
1

INTRODUCTION ....................................................................................................15

2

THE NATURE OF INTERNATIONAL LAW RELATING TO THE CHILD ......15

3

2.1

The political context .......................................................................................17

2.2

Cultural pluralism ...........................................................................................17

2.3

The vagueness of provisions ...........................................................................19

INTERNATIONAL YOUTH JUSTICE FRAMEWORK .......................................21
3.1

An overview ....................................................................................................21
3.1.1 Instruments and standards ...................................................................21
3.1.2 Mechanism for implementation and enforcement of those international
instruments ..........................................................................................26

3.2

The issues of providing a normative framework across different jurisdictions ..
.............................................................................................................31

4

INTERNATIONAL LAW ON YOUTH SENTENCING .......................................33
4.1

The aims of youth sentencing - rehabilitation/restorative approach in „the best
interests of the child‟.......................................................................................33

5

4.2

Youth sentencing alternatives - non-institutionalisation of children ..............36

4.3

Youth sentencing information - the child‟s circumstances and needs ............40

IMPLEMENTATION OF THE CRC IN VIETNAM AND ENGLAND AND
WALES ....................................................................................................................41
5.1

The motivation and response of the two countries upon ratification ..............42

iv


5.1.1 Vietnam ...............................................................................................42
5.1.2 England and Wales..............................................................................43
5.2

The evolution of youth justice policy in Vietnam and England and Wales in
the light of the CRC ........................................................................................46
5.2.1 The evolution of Vietnamese justice policy ........................................46
5.2.1.1 Historical account of the Vietnamese youth justice prior to
the CRC.................................................................................46
5.2.1.2 The evolution of the Vietnamese youth justice system
following ratification ............................................................49
5.2.2 The evolution of youth justice policy in England and Wales .............54
5.2.2.1 Historical account of the youth justice in England and Wales
..............................................................................................54
5.2.2.2 The evolution of the youth justice system in England and
Wales following ratification .................................................57

6

CONCLUSION ........................................................................................................62

CHAPTER 3 ........................................................................................................................64
THE YOUTH JUSTICE SYSTEM IN VIETNAM AND IN ENGLAND & WALES .......64
1

INTRODUCTION ....................................................................................................64

2

YOUTH JUSTICE SYSTEM IN VIETNAM ..........................................................64
2.1

Preventive system and pre-administrative interventions ................................65

2.2

The handling of administrative violations (administrative system) ................65
2.2.1 The administrative violations ..............................................................66
2.2.2 Principles in handling of administrative violations.............................67
2.2.3 Competent individuals/agency(s) dealing with administrative cases .68
2.2.4 Administrative measures available for young offenders.....................68
2.2.5 Administrative procedure ....................................................................71

2.3

Criminal justice system ...................................................................................72
2.3.1 Criminal offence .................................................................................72
2.3.2 Principles in handling young offenders ..............................................74

2.3.3 Competent individuals/agency(s) dealing with criminal cases ...........76
2.3.4 Punishments and judicial measures available for young offenders ....77
2.3.5 Criminal procedure .............................................................................80

2.4

Interventions and Procedures by reference to age-range ................................81
v


3

THE YOUTH JUSTICE SYSTEM IN ENGLAND & WALES .............................85
3.1

Preventive system and interventions available for those under the age of
criminal responsibility ....................................................................................85
3.1.1 Prevention ...........................................................................................85
3.1.2 Acceptable behaviour contract (ABC) ................................................87
3.1.3 Intervention for children under 10 ......................................................88

3.2

Civil Order ......................................................................................................89
3.2.1 Anti-Social Behaviour.........................................................................89
3.2.2 Anti-social Behaviour Order ...............................................................89

3.3

The criminal system ........................................................................................91

3.3.1 Criminal offences ................................................................................91
3.3.2 Diversion .............................................................................................92
3.3.3 Criminal court .....................................................................................94

4

5

3.4

Principles of youth justice...............................................................................99

3.5

Institutions and tools .....................................................................................101

3.6

Interventions and procedures due to age range .............................................103

THE COMPARATIVE POINTS BETWEEN THE TWO SYSTEMS .................107
4.1

Age range ......................................................................................................107

4.2

Notion of anti-social behaviours/offences ....................................................107

4.3

Principles in dealing with young offenders ..................................................108

4.4

Disposals available .......................................................................................110

4.5

Mechanisms available ...................................................................................111

CONCLUSION ......................................................................................................112

CHAPTER 4 ......................................................................................................................113
THE RATIONALIST APPROACH TO DECISION-MAKING AT THE SENTENCING
STAGE OF THE YOUTH JUSTICE SYSTEM................................................................113
1

INTRODUCTION ..................................................................................................113

2

THE „RATIONALIST TRADITION‟ - SOME BASIC ASSUMPTIONS ...........114

3

THE IMPORTANCE OF INFORMATION FOR RATIONAL DECISIONMAKING IN THE YOUTH JUSTICE SYSTEM .................................................119
3.1

The nature of a decision ................................................................................119

3.2

Decisions about persons in the youth justice system ....................................121

3.3

The concept of rational decision-making in the youth justice system ..........123
vi


3.4

The importance of information for rational decision-making in the youth
justice system ................................................................................................124

4

THE MEANING OF „RELEVANT INFORMATION‟ FOR RATIONAL
DECISION-MAKING IN THE YOUTH JUSTICE SYSTEM .............................126

5

4.1

The meaning of „relevant information‟ .........................................................126

4.2

Relevant information for decision-making in the youth justice system .......128

RELEVANT INFORMATION FOR RATIONAL DECISION-MAKING IN THE
YOUTH JUSTICE SYSTEM.................................................................................132
5.1

The risk management stage...........................................................................132
5.1.1 Information about the circumstances of the young person - the notion
of „risk/protective‟ factors .................................................................133
5.1.2 Information about options available .................................................137
5.1.3 Information about probable outcome (efficiency feedback) .............137
5.1.4 Information about public policy ........................................................138

5.2

The investigative stage..................................................................................138
5.2.1 Information about the offence - the notion of seriousness ................140
5.2.2 Information about the circumstances of the young person ...............143
5.2.3 Information about options available .................................................145
5.2.4 Information about probable outcome (efficiency feedback) .............145
5.2.5 Information about public policy ........................................................145

5.3

The prosecution stage ...................................................................................146
5.3.1 Information about the fact of the case ...............................................147
5.3.2 Information about options available - the criteria of justifying a charge
...........................................................................................................147
5.3.3 Information about probable outcome (efficiency feedback) .............148
5.3.4 Information about public policy ........................................................148

5.4

The court stage ..............................................................................................149
5.4.1 Determining of guilt ..........................................................................149
5.4.2 Determining of sentence ...................................................................151
5.4.2.1 Information about the seriousness of the offence ...............151
5.4.2.2 Information about the circumstances of the young defendant
............................................................................................152
5.4.2.3 Information about sentencing options available .................152
vii


5.4.2.4 Information about probable outcome (efficiency feedback)
............................................................................................153
5.4.2.5 Information about public policy .........................................153
6

CONCLUSION ......................................................................................................154

CHAPTER 5 ......................................................................................................................156
THE YOUTH SENTENCING SYSTEM IN ENGLAND AND WALES - THE ROLE OF
THE PRE-SENTENCE REPORT .....................................................................................156
1

INTRODUCTION ..................................................................................................156

2

THE SENTENCING FRAMEWORK IN ENGLAND AND WALES .................156
2.1

Procedure and the general communication of information ...........................156

2.2

Sources and corresponding kinds of information available to sentencers ....160
2.2.1 Information which must be taken into consideration in sentencing..160
2.2.2 Sources and kinds of information available at sentencing stage .......163
2.2.2.1 Information from the prosecution .......................................163
2.2.2.2 Information from the defence .............................................165
2.2.2.3 Information from victims ....................................................165
2.2.2.4 Information from other participants at sentencing stage ....166

3

THE PSR - A TOOL TO ASSIST THE COURT IN YOUTH SENTENCING ....168
3.1

The concept of PSRs in England and Wales.................................................168
3.1.1 The history of PSR ............................................................................168
3.1.2 PSRs for young offenders .................................................................172

3.2
5

The role of PSRs in youth sentencing decision-making ...............................177

CONCLUSION ......................................................................................................181

CHAPTER 6 ......................................................................................................................183

THE YOUTH SENTENCING SYSTEM IN VIETNAM AND THE NEED FOR AN
ADDITIONAL INFORMATION PROVIDING MECHANISM .....................................183
1

INTRODUCTION ..................................................................................................183

2

THE VIETNAMESE SENTENCING FRAMEWORK ........................................183
2.1

Procedure and general communication of information at court session .......183

2.2

Sources and corresponding kinds of information available to sentencers ....187
2.2.1 Information which must be taken into consideration in sentencing..187
2.2.2 Sources and kinds of information available in court sessions ..........188
2.2.2.1 Information from the prosecution .......................................188
viii


2.2.2.2 Information from the defence .............................................189
2.2.2.3 Information from victims ....................................................190
2.2.2.4 Information from other participants at court session ..........191
3

INFORMATION AVAILABLE TO SENTENCERS IN PRACTICE ..................191
3.1

Kinds of information .....................................................................................192
3.1.1 Information about the offence ...........................................................192
3.1.2 Information about the offender .........................................................195
3.1.3 Information about options available .................................................199
3.1.4 Information about potential sentencing outcomes ............................199
3.1.5 Information about public policy/opinion ..........................................200

4

3.2

Sources of information..................................................................................202

3.3

Communication of information and the need for information ......................206

SENTENCE REPORTING MECHANISM - A POSSIBLE SOLUTION FOR
MORE INFORMED SENTENCING IN VIETNAM ............................................207
4.1

Improving the provision of information about the offender .............209

4.2

Improving the provision of information about the likely sentencing
outcome .............................................................................................213

4.3
5

Improving the provision of information concerning public policy ...217

CONCLUSION ......................................................................................................218

CHAPTER 7 ......................................................................................................................220
TOWARD MORE RATIONAL YOUTH SENTENCING SYSTEM IN VIETNAM
LESSONS FROM ENGLAND AND WALES .................................................................220
1

INTRODUCTION ..................................................................................................220

2

APPLYING PRE-SENTENCE REPORTS TO THE VIETNAMESE YOUTH
JUSTICE SYSTEM - LESSON FROM ENGLAND AND WALES ....................221

3

THE SEPARATION BETWEEN DETERMINATION OF GUILT AND
SENTENCING IN VIETNAM - LESSON FROM ENGLAND AND WALES...225
3.1

Relevant information for the two court decisions - the risk of contamination ...
...........................................................................................................226

3.2

Different modes of criminal trial around the world ......................................230

3.3

The separation between determination of guilt and sentencing in Vietnam lessons from England and Wales ..................................................................234

4

CONCLUSION ......................................................................................................239
ix


CHAPTER 8 ......................................................................................................................241
CONCLUSION ..................................................................................................................241
1

INTERNATIONAL LAW ON YOUTH JUSTICE AND THE COMPLIANCE OF
VIETNAM AND ENGLAND AND WALES .......................................................245

2

THE „RATIONALIST TRADITION‟ AND THE THEORY OF RATIONAL
DECISION-MAKING ...........................................................................................247

3

THE VIETNAMESE YOUTH SENTENCING AND LESSON TO BE LEARNED
FROM ENGLAND AND WALES ........................................................................250

4

SUGGESTIONS FOR FURTHER RESEARCH ...................................................253

APPENDICES ....................................................................................................................... i
APPENDIX A ....................................................................................................................... ii
METHODOLOGY FOR THE SURVEY ............................................................................. ii
1

THE HYPOTHESIS OF THE SURVEY .................................................................. ii

2

OBJECTIVES AND DESIGN OF THE SURVEY ................................................ vii

3

THE SURVEY SAMPLE ...................................................................................... viii

4

3.1

For self-administered survey ........................................................................ viii

3.2

For interview ................................................................................................... xi

INSTRUMENTS ...................................................................................................... xi
4.1

Self-administered questionnaire ..................................................................... xi

4.2

Sentencing exercises ...................................................................................... xii

4.3

Interview ....................................................................................................... xiii

5

MEASUREMENTS ............................................................................................... xiii

6

ETHICAL CONSIDERATIONS .............................................................................xv

APPENDIX B .................................................................................................................... xvi
THE SURVEY QUESTIONNAIRE, EXERCISES AND INTERVIEW STRUCTURE . xvi
APPENDIX C ................................................................................................................... xvii
THE SURVEY DATA ......................................................................................................... xl
BIBLIOGRAPHY ............................................................................................................... lxi

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CHAPTER 1
1

THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

CHAPTER 1
INTRODUCTION

1

THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

This thesis is concerned with criminal justice for young people. Although it may vary in
different jurisdictions, „criminal justice‟ is regarded in the thesis as the system dealing with
young people who violate the criminal law, or who are accused of violating the criminal
law, from investigation to sentencing. The reference to „young people‟ in conflict with
criminal law is taken to refer to those within the range from the minimum age of criminal
responsibility1 to under 18 years. Although it is universally accepted that there should be a
minimum age of criminal responsibility, the minimum age is set differently in different
jurisdictions.2 Accordingly the age range might not be the same in different jurisdictions
(e.g. 10 years to under 18 years in England and Wales; 14 years to under 18 years in
Vietnam).3 The reason for taking the age of 18 years is that pursuant to the United Nation
Convention on the Right of the Child (CRC),4 offenders under that age must be treated
differently from adults. The thesis particularly focuses on sentencing which, for the
purpose of the thesis, is taken to be sentencers‟ activities to decide an appropriate sentence
for young defendants, whether or not it is carried out as an independent stage.5
The starting point for the thesis is that although only a relatively small number of young
people are dealt with by the criminal justice system in Vietnam,6 for those who are

Fionda defined the minimum age of criminal responsibility as the age at which „any criminal justice system
permits itself to bring criminal proceedings against a child who commits a crime‟. Children below that
minimum age are not dealt with by criminal justice system „regardless of any behaviour committed by the
child‟. See, J Fionda, Devils and Angels - Youth Policy and Crime (Oxford and Portland, Oregon, Hart
Publishing, 2005) p 9.

2
See, D Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility (Surrey, Ashgate,
2010).
3
See, J Fionda, op. cit. note 1 p 11.
4
The CRC was approved in 1990 and ratified by most countries around the world. See Chapter 2, section
3.1.1 for more detail.
5
In adversarial jurisdictions, sentencing is an independent stage which only takes place following a guilty
plea or a guilty verdict, whilst in many if not most inquisitorial jurisdictions it is not separated from guilt
determination. For more detail, see Chapter 4.
6
In Vietnam, there are two separate systems dealing with young people in conflict with the law due to the
nature and seriousness of the offence: administrative system for less serious offence and criminal system for

1

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THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

processed by the criminal justice system, a significant proportion receives a custodial
sentence.7 Research carried out by the Vietnamese Ministry of Justice found that „the
courts rarely use facilities for sending child for re-education school rather [than] prison‟,8
although there is a range of available alternatives such as „education in communes, wards,

district towns‟ and „re-education without detention‟. In 1994, for example, from a total 215
cases in which young people appeared in a criminal court, as many as 188 cases end up
with a custodial sentence (87.44%). Further, the custodial rate in Vietnam has tended to
increase over the time. In 1995, the custodial rate was 94.21%, and in 1996 it was 95%
among every type of sentences and judicial measures applied to young defendants.9
Since the mid-1990s, Vietnam has experienced a sharp increase in the number of young
people being dealt with by the criminal justice system. In 2000, the number of young
people who were found to have violated the criminal law was 11,538, and in 2003 it was
14,038.10 In 2007 there were 10,361 youth cases, involving 15,589 children.11
Approximately one third of those children were the subject of adjudication by the criminal
courts. According to the People‟s Supreme Procuracy, in 2003, the number of cases
involving young defendants that reached trial was 4,578.12 The other two thirds were dealt
with either by the administrative system or by a criminal procedure that did not involve
trial.13 Of those cases that did reach trial, as many as 3,415 (74.60%) young offenders
received a custodial sentence, such as reformatory school or imprisonment. That means by
2003 the rate of custodial sentence was still relatively high, with a much larger number of

more serious offence. Administrative offenders are not tried by a trial but imposed a sanction/intervention by
a competent administrative officer or panel such as police officers, local authority. Most of young people in
Vietnam are dealt with by administrative system, only serious cases go to criminal justice system being dealt
with by way of criminal trial. For more detail, see Chapter 3.
7
The term „young offender‟ is used in the thesis to show those who - within the above age range - have been
caught by the youth justice system (i.e. have been investigated, charged, convicted, sentenced) regardless of
the fact that they have actually committed an offence or not.
8
Radda Barnen, Report of the Evaluation of the Radda Barnen Supported Juvenile Justice Programme
(Hanoi, National Political Publishing House, 2001) p 132.
9
Radda Barnen & Vietnamese Ministry of Justice, Strengthening the Capacity of the Youth Justice System in

Vietnam (vol.1, in Vietnamese, Hanoi, Institute of Law Research, 2000) p 150. For more details about types
of sentence in Vietnam, see Chapter 3, section 3.6.
10
The figures were extracted from the Committee on Population, Family and Children, The Report of
Children in Conflict with Criminal Law in Hai Phong Province (in Vietnamese, Hai Phong, the Committee
on Population, Family and Children, 2004).
11
in Vietnamese, last access
date: 05/11/2010.
12
The figures were extracted from the Committee on Population, Family and Children, op. cit. note 10.
13
For more detail about Vietnamese youth justice system, see Chapter 3, section 2.
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CHAPTER 1
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THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

young people in conflict with criminal law than a decade earlier. Such a sharply increasing
trend of youth offending, and a high custodial rate, alerted the government and others to
the need for a more effective and rational way of dealing with young offenders.
There is no straightforward international comparative data by which the use of custodial
sentences in Vietnam can be compared to other jurisdictions. Nevertheless, the rate in
Vietnam appears to be extremely high given a context in which custody is regarded as a
problematic measure which should be used in a limited way. Research in Vietnam shows
that there is no difference between the recidivism rate following a custodial sentence and
that following alternative measures,14 whilst it is much more costly to institutionalise

people than other measures in the community.15 Furthermore, in the case of young people,
custody can have side-effects on their development as the youth is separated from their
family and their usual living environment. This point of view was confirmed by the CRC,
which has been ratified by the Vietnamese government. Pursuant to the CRC, detention or
imprisonment of a child (i.e. a young person) should be used only as a measure of last
resort; strictly punitive approaches are not appropriate in youth cases.16 At this point two
initial questions emerged: (1) why is custody regularly imposed on young defendants in
Vietnam; and (2) what needs to be done to improve the Vietnamese sentencing system with
a view to full compliance with international rules and standards, especially ‘custody as a
measure of last resort’?
The first initial question may be approached in a number of different ways. First, it might
be that there is a punitive youth sentencing policy in Vietnam which encourages the use of
custody for young people. In principle, this is not the case since the statutory objective of
youth sentencing is not only to prevent delinquency but also to ensure the welfare of
offenders and of the society.17 Article 69(1) of the Penal Code 1999 clearly states that the
main purpose of dealing with youth offenders is „to educate and help them redress their
wrongs, to develop healthily and to become constructive citizens in society‟. The
Vietnamese government has also made a number of promises regarding the treatment of
young people in its justice system, including the promotion of community-based

14

See, Radda Barnen, op. cit. note 9 p 221.
ibid. p 126
16
The CRC, Article 37(b).
17
The Penal Code 1999, 15/1999/QH10, Article 69 (1) (in Vietnamese).
15

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THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

alternatives, in the Third East Asia and Pacific Regional Consultation on the Convention of
the Rights of the Child (1995).18
Second, it might be because cases involving young people that reach the criminal courts in
Vietnam are so serious as to warrant a custodial sentence. This hypothesis may appear to
be reasonable as there are actually two different systems dealing with young people in
conflict with the law in Vietnam - the administrative system and the criminal system - and
the criminal system only deals with more serious violations. However, the criminal justice
system deals with a full range of offences, of a different nature and of different levels of
seriousness. Correspondingly, a full range of sentencing options, including alternatives to
custody, is available in the criminal justice system. In fact, the evidence shows that young
people commit a range of offences at different levels of seriousness.19 This should mean
that the full range of sentencing options is available to a court when sentencing a young
person. In addition, the evidence suggests that offences committed by young people are
normally more simple and less serious than those committed by adults.20
The third reason might be that Vietnamese sentencers are punitive, and who believe that
young defendants deserve custody. In fact, there has been no rigorous research on
Vietnamese sentencers‟ attitudes towards young offenders. However, the survey carried
out for the purposes of this research shows that most Vietnamese judges in the sample
were sympathetic to the idea of using less punitive sentences and seemed to recognise the
side-effects of imprisonment on young people.21 The reasons they gave for their use of
custodial sentences was that the young people they sentence have already been dealt with
several times in the community using administrative measures before arriving at a criminal

trial, and therefore they are not quite confident of using yet another community sentencing
option.
This leads to another possibility, that alternatives community sentences are not sufficiently
effective in Vietnam so that custodial sentences are preferred. In fact, the UN Committee
on the Rights of the Child referred to this issue in its comments on Vietnamese compliance

18

B Vu, Selected International Documents on Child Protection (in Vietnamese, Hanoi, National Political
Publishing House, 1998) p 79.
19
See, Hanoi Law University, Criminology (textbook, in Vietnamese, Hanoi, HLU, 2009) pp 125-140.
20
See, ibid. p. 129.
21
See Chapter 6 and Appendix C for more detail.
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CHAPTER 1
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THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

with the CRC,22 although there is no evidence that the recidivism rate following custody is
lower than following alternative sentences. In research carried out by the Ministry of
Justice it appears that the recidivism rate is no different as between custody and
probation.23 This means that even if community interventions are not sufficiently effective
at present, custodial sentences should not be preferred over alternatives, especially given
their adverse side-effects.

The evidence suggests that the variables identified in the preceding paragraphs are not
sufficient to explain the significant use of custodial sentences in Vietnam. At this point,
another variable can be considered; that is, the decision-making process by which judges
determine what sentence is appropriate in any particular case, based on the facts of the case
and the legal requirements. In order to achieve sentencing objectives, it can be argued that
sentencing decisions must be rationally based on sufficient information. The rational
decision-making approach to sentencing may explain not only the question why there is a
high rate of custodial sentences in Vietnam, but may help in finding solutions to the
compliance issue referred to earlier. If international rules and standards on sentencing
(which set out the objectives and principles of sentencing) are the objectives that any
sentencing system must pursue then sentencing must be approached as a rational process.
Otherwise whether the objective is achieved will simply be a matter of coincidence. On
this view, the international standard for the sentencing of young people, of „custody as the
last resort‟ can only be fully complied with if every other available sentencing option has
been rationally determined as being inappropriate.
Explaining why there is a high level of custodial sentences in youth cases in Vietnam using
a rational decision-making approach is the central feature of the thesis. It addresses that
question of how rational is the Vietnamese system of youth sentencing. In order to answer
the question, a rational decision-making model has been developed and then applied to the
whole youth justice system, including sentencing.24 According to the model, there are three
requirements for rational decision within the youth justice system. First, there must be an
adequate operational definition of the specific objectives of each phase of the youth justice
22

UN Committee on the Rights of the Child, Periodic reports of States Parties Due in 1997: Vietnam
(CRC/C/65/Add.20, 2002).
23
Radda Barnen, Report of the Evaluation of the Radda Barnen Supported the Juvenile Justice Programme
(in Vietnamese , Hanoi, People‟s Public Security Publisher, 1999).
24

See Chapter 4 for more detail.
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CHAPTER 1
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THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

process. Second, there must be the identification of and an adequate description of the
alternative choices in each phase. The third requirement is that of information. Amongst
those three requirements, information is crucial to decision-makers as their decision must
be based on sufficient information about the relevant objectives, about the alternatives, and
about the case in question. The level of rationality in the youth justice system, including
sentencing, clearly depends on the information available for the decisions that have to be
made. To this end, a further research question emerged: how rational is the Vietnamese
youth sentencing process having particular regard to the information on which sentencing
is based?
With regard to the second initial question identified above,25 it is necessary to explore how
the CRC translates into domestic law and practice, and how particular jurisdictions can go
about ensuring that they comply with their international obligations. In addressing that
question, the need for a rational decision-making approach was essential since, as
previously noted, otherwise international obligation, even if they are met, will be met
merely by chance. That insight took me into exploring the „rationalist tradition‟ and what I
sought to explore was how the „rationalist tradition‟ might in turn provide the underpinning
for rational decision-making in sentencing.
In approaching that I have been faced with the twin problem that the „rationalist tradition‟
has largely, almost exclusively, been developed in relation to guilt determination and the
evidential process, and that it has been largely developed in the context of common law
adversarial jurisdictions. What I set out to do, then, was to explore how and whether the

„rationalist tradition‟ might be relevant to sentence determination and also how and
whether it might be relevant beyond those countries with an adversarial tradition. This
issue will be explored more fully in chapter 4. Although, these questions arrived fairly late
in the research process they proved to be very important in providing the missing
theoretical justification for my concern with rational decision-making.

That is „what needs to be done to improve the Vietnamese youth sentencing system towards full
compliance with relevant international rules and standards, especially „custody as a measure of last resort‟?
25

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THE RESEARCH QUESTIONS AND THE SCOPE OF THE THESIS

Making progress towards full compliance with international rules and standards requires
cooperation between countries, and especially scientific exchange. The Tokyo Rules26
clearly state that comparative studies and the harmonisation of legislative provisions
should be furthered in order to expand the range of non-institutional options and to
facilitate their application across national frontiers.27 In addition, law reform should be
undertaken with a broad view, and using lessons from other countries. Following this
strategy, the youth justice system in England and Wales was chosen as a comparator,
where the author is living and conducting research. This means that the research question
above is addressed comparatively by reference to the youth sentencing process in England
and Wales, and in order to discover whether lessons may be learned in relation to making
progress towards full compliance with international rules and standards. Of course, it is not
necessarily the case that because a certain approach works in one country that it will also

work in another, but it may provide useful insights, and new ideas and concepts, that may
be relevant to the Vietnamese youth justice system.
Following the logic outlined above, the thesis addresses three main issues. First it will
establish a model of rational decision-making applicable to the youth justice system, with
particular reference to the information requirements of a rational decision-making
approach. The model is situated within a theoretical context, the „rationalist tradition‟ as
applied to trial. It will then be used as the theoretical basis for comparing the youth justice
systems in Vietnam and in England and Wales, with particular focus on sentencing. Third,
based on that comparison, a number of issues will be identified as providing relevant and
useful lessons for Vietnam with a view to making proposals for the purpose of improving
its youth sentencing system. Of course, throughout the whole thesis, the international rules
and standards established by the CRC and other international instruments will be used as
the standards that the two countries are obliged to pursue. The „rationalist tradition‟ will
also be explored to establish whether it can provide a theoretical underpinning for the
notion of rational decision-making in respect of sentencing.
Finally, as I write, having agreed a „roadmap‟ of procedural rights in criminal proceedings,
the European Union has embarked on a programme of legislation, in the form of

26

The Tokyo Rules, available at last access date:
10/06/2010.
27
The Tokyo Rules, Subsection 23.2.
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CHAPTER 1
2

METHODOLOGY AND METHODS

Directives, which will require the United Kingdom to ensure that its law and procedures
are in compliance with the standards established. Measure E of the „roadmap‟ concerns the
procedural rights of vulnerable suspect and defendants, which includes young people.28 It
is too early for this to have had a direct effect on the law of England and Wales in respect
of the youth justice system, but it does reinforce the importance of taking a comparative
approach to youth justice and the sentencing of young offenders.
2

METHODOLOGY AND METHODS

The first two issues are mainly approached using library-based methods. First, the thesis
examines the CRC and other international treaties in order to identify the international
requirements that apply to decisions regarding young people in conflict with the law.
Those requirements are assumed to be a goal that almost, but not, all countries are
committed to pursue, including Vietnam and England and Wales. Among those
requirements, the standards of fair trial, custody as a measure of last resort, and
consideration of both the offence and the circumstances of the offender, are to be
emphasised. Although there are many obstacles, both objective and subjective, which
prevent a particular country from achieving full compliance with those requirements,
domestic law reform is necessary to make the youth justice system sufficiently rational in
order to achieve that goal. Second, based on the concept of „rational decision-making‟, as
defined by Gottfredson et al (1975),29 the thesis builds up a model for providing
information - an essential component for a rational decision to be made - throughout the
whole youth justice system. Within the model three different dimensions - (1) the type of
information, (2) the source of information, and (3) the communication of information - are
found to be important. That model of information provision is then assumed as a necessary
condition for rational decision-making within youth justice and therefore can be used as a
measurement to assess the rationality of decision-making in any youth justice system,

including Vietnam and England and Wales. Therefore, analysing the rationality of the
Vietnamese youth justice system by using the model can help explain to some degree the
problems that have led to the high custodial sentence rate referred to at the beginning of the
28

See, Council of the European Union, Draft Resolution of the Council on a roadmap for strengthening
procedural rights of suspected or accused persons in criminal proceedings (Council of the European Union,
2009) Measure E: Special Safeguards for Vulnerable Persons, Annex to Annex, p 7.
29
DM Gottfredson (ed), Decision-making in the Criminal Justice System: Review and Essays (Washington,
DHEW Publication, 1975).
8


CHAPTER 1
2

METHODOLOGY AND METHODS

thesis, and can assist in discovering whether it is sufficiently rational to enable the
international standards referred to above to be achieved. To the extent that problems are
discovered, a way of dealing with them is to examine the legal doctrines and techniques by
which different jurisdictions tackle, or avoid, the same problem.
To this end, a comparative approach is necessary, and a common approach has been
chosen in which following steps are to be pursued:
Step 1: Identify some aspect of domestic law which seems confused or which lacks
a clear rationale.
Step 2: Identify the social problem... which this aspect of the domestic law
addresses.
Step 3: Examine the legal doctrines and techniques by which one or more foreign

legal systems tackles the same problem (or avoids it).
Step 4: Evaluate the foreign legal system to decide whether its approach is superior
either in technique or result.
Step 5: Analyse the domestic legal system once again to reveal the conceptual
obstacles to the achievement of more satisfactory results either in technique or
policy goals.30
England and Wales was chosen as the foreign reference. The youth justice system in
England and Wales is also analysed using the model as a means of discovering whether the
problem of high proportionate use of custody in youth cases, identified in respect of
Vietnam, are being dealt with or avoided in England and Wales. By this process, lessons
may be learned that may have relevance to Vietnam. All of the above tasks involve
researching a variety of sources of data, including policy, law and jurisprudence,
mechanisms for disseminating sentencing policy and for providing information in practice.
For this purpose, doctrinal research of law and jurisprudence, the analysis of policy
documents, internal regulations, and statistics, in respect of law enforcement agencies (for

H Collins, „Methods and Aims of Comparative Contract Law‟ [1991] Oxford Journal of Legal Studies,
vol.11, pp 396-406.

30

9


CHAPTER 1
3

LIMITATIONS OF THE THESIS

example, the police, Youth Offending Teams, etc.), government ministries and agencies,

and the courts, is chosen as a method of collecting data.
As the most difficult aspect of the comparative approach is that a „solution‟ in the
reference country may not be feasible, or may not work, in the other subject country
because, for example, of differences in legal cultures and traditions, empirical research and
analysis will be used to assess the feasibility of any lessons found. In order to discover
sentencing practices in Vietnam a survey of judges will be conducted. The purpose of this
empirical method is to attempt to reveal what information is actually available to
sentencers in the Vietnamese youth justice system, and the needs of judges in terms of
sufficient information for sentencing purposes. In particular, the use of pre-sentence
reports in England and Wales is identified as a model which may be of relevance to
Vietnam. Consequently, the Vietnamese judges were asked about the concept of presentence reports in order to discover their opinions as to whether such a mechanism is
necessary, and would be of assistance, in contributing to rational sentencing in Vietnam.
The empirical research of the judiciary in Vietnam is described in depth in Appendix A:
Methodology for the Survey.31 In outline the empirical research was conducted between
July 2006 and April 2007, and concerned a total of 233 respondents (226 judges completed
a self-administered questionnaire and seven judges took part in semi-structured
interviews). It was only small scale, but was useful in providing an insight of judicial
attitudes to rational decision-making and pre-sentenced reports.
3

LIMITATIONS OF THE THESIS

Due to the time available and the word limit, it is inevitable that the thesis can only address
a limited number of questions in a broader field of enquiry, and there is significant scope
for further research to be carried out. In the author‟s view, there are three major limitations
to the study that need further consideration.
First, there is the limitation of the comparative approach in general. The two predetermined comparators in the thesis, Vietnam and England and Wales, have significantly
different legal systems, legal cultures and traditions. A primary reason for selecting these

31

See, Appendix A for more detail.
10


CHAPTER 1
3

LIMITATIONS OF THE THESIS

two jurisdictions was the convenience of the author, although England and Wales was an
important candidate for a comparator jurisdiction because of its development of the PSR.
The comparative approach taken in the thesis cannot ensure the typicality of the research,
and that makes it difficult to generalise the results to other countries. Nevertheless, the
thesis touches on the issue of rationality of inquisitorial sentencing systems. Using the case
of Vietnamese it appears that non-separation of guilt determination and sentencing is a
tradition, albeit an important tradition, rather than being in the nature of inquisitorial
systems. The similarities and differences found between the two criminal justice systems
are not fully explored in the thesis, and different aspects such as legal culture, tradition and
infrastructure in the two countries have not been fully taken into account. In order to avoid
the influence of such aspects on the in-depth analysis carried out, the most neutral and
universal factor - information - is selected in the later part of the thesis. Generally
speaking, experience of one country is not transferrable to others without rigorous
consideration of the target country‟s political, legal and cultural context. The experience of
the pre-sentence report in England and Wales is not an exception. Nevertheless,
examination of the pre-sentence report in England and Wales does enable certain lessons to
be learned in terms of application of a similar device in Vietnam.
Second, in approaching the issue of the significance of sufficient information for rational
decision-making, the issue of human agency is taken out of the equation. Although three
dimensions (type, source and communication) of information are referred to, it can only be

regarded as a necessary (but necessarily a sufficient) condition for rational decisionmaking. The thesis leaves the question of how sentencers process and take such
information into consideration for further consideration as it requires a multi-disciplinary
approach rather than simply a legal approach. However, it is argued that without
satisfaction of the necessary condition, rational decision-making cannot be achieved and,
therefore, the thesis can be seen as a foundation for such multi-disciplinary research.
Third, given that the idea of providing relevant and reliable information is necessary, the
pre-sentence report in England and Wales is simply to be regarded as a tool for providing
such information. There might be different tools in use in other countries which are used
for the same task. Such tools might be more efficient in assisting sentencers in their
rational decision-making process. However, it is worth noting that the pre-sentence report
is a form of social inquiry report which is recommended by the Beijing Rules (Rules 16(1))
11


CHAPTER 1
4

CHAPTER SUMMARY

as a tool to facilitate judicious adjudication of the case by the competent authority. In
addition, pre-sentence reports have been being developed in England and Wales for at least
20 years and as the thesis develops, it is argued that such a tool can be used as a lesson for
Vietnam.
Another limitation is that even if PSRs should be regarded as suitable model for adoption
in Vietnam, it does not mean that the idea of PSRs is directly applicable in the Vietnamese
context. The thesis seeks to assess the feasibility of applying the idea of PSRs in Vietnam
by investigating Vietnamese sentencers‟ need for information within the existing
institutional structure. For the feasibility to become a reality requires further research to be
carried out.
4

CHAPTER SUMMARY

The thesis is divided into eight chapters, each addressing particular questions which are
closely related and which, by linking those answers, generally address the research
questions. The structure of the thesis is as follows.
Chapter 1: Introduction This chapter sets out the research questions, the rationale for the
thesis, and introduces the method of addressing the questions in the thesis.
Chapter 2: International context of youth justice and the case of Vietnam and
England and Wales This chapter explores the nature of international law relating to young
people in relation to the criminal law, and the international framework for youth justice. It
then discusses the youth justice systems in Vietnam and in England and Wales in the light
of that international framework and relevant principles. The chapter attempts to address the
question of whether the two countries have the same international obligations in respect of
their youth justice system, having regard to the rights of the child, and the extent to which
they comply with those principles and standards.
Chapter 3: Youth justice system in Vietnam and in England and Wales. This chapter
offers a critical, comparative overview of the youth justice systems in Vietnam and in
England and Wales. Based on the constitution and statutory foundations in the jurisdictions
of the two countries under consideration, this chapter explores how young people can be
dealt with in both countries, and the processes by which the conduct of young people
12


CHAPTER 1
4

CHAPTER SUMMARY

comes to be dealt with as criminal. It sets out to reveal: what interventions are available for

young offenders according to their ages and conduct; under those interventions, what
conditions/restrictions may be imposed on young offenders; who are involved in imposing
and implementing those interventions; and what procedures can be applied. It also
establishes some comparative points between the two jurisdictions in order to examine
whether young offenders in both countries are treated in compliance with the standards and
principles which prescribed in the CRC, especially the requirement that custody be used as
a last resort. In turn, it provides a context for the following chapters.
Chapter 4: The Rationalist Approach to decision-making at the sentencing stage of
the youth justice system Based on the question of how domestic and international
objectives for sentencing can be achieved without adopting a rationalist approach, this
chapter explores the „rationalist tradition‟ and takes it beyond its original setting to the
sentencing stage in jurisdictions other than those that have a common law tradition. It also
provides an account of rational decision-making theory and develops a rational decisionmaking model it in the context of the youth justice system, taking into account the
particular features of the youth justice system and the information needs for rational
decision-making at each stage of the criminal process.
Chapter 5: The youth sentencing system in England and Wales - the role of presentence report Following earlier discussion of the need for relevant and reliable
information at the sentencing stage, this chapter explores the current status of sentencing in
England and Wales. The questions to be addressed in the chapter consist of: (1) what kinds
of information are available for sentencing in England and Wales; (2) from what sources is
such information provided; and (3) how such information becomes available to the
sentencing decision-makers. The chapter then concentrates on the pre-sentence report
(PSR), which is a form of social inquiry report - an information provision tool to assist the
court in sentencing. It addresses the questions of what the PSR is, who prepares PSRs and
how they are prepared, what is a „good‟ PSR, and how PSRs influence decision-making in
the sentencing process.
Chapter 6: The youth sentencing system in Vietnam and the need for an additional
information providing mechanism This chapter is approached using the same format as
chapter 5, and explores the current status of youth sentencing in Vietnam both in terms of
13