Issue:

January 2025

UK court describes Japan’s criminal procedure as a 'flagrant denial of fair trial protections'

Artwork by Julio Shiiki - Images via Unsplash, Freepik and Pexels

If you were in Tokyo in 2015, you may remember the daring daylight robbery at the Harry Winston shop in Omotesando Hills. Pretending to be customers, three foreign males gained entry to the shop, where they beat the guard and grabbed double handfuls of diamond rings and other valuable jewelry. According to news accounts, the haul has been estimated at as much as ¥100 million. The entire scene was recorded on closed circuit cameras and played out before stunned onlookers, but the three fled the scene, evaded the police, and boarded a flight to freedom two days later. 1

Nearly 10 years have passed, but the three have yet to be brought to justice. Three suspects were apprehended by British police, two in response to extradition requests from the Japanese government, but the cases have been tied up in the British courts since.

In an extraordinary judgment issued on August 11, 2023, Senior District Judge Paul Goldspring formally denied Japan’s request for the extradition of Joe Anthony Chappell and ordered him released. 2 A year later, he issued a similar order for a second suspect. 3

How can this be? The evidence against the three seems overwhelming and was sufficient to persuade a British court to issue arrest warrants. 4 

Goldspring’s decision to deny extradition was not based on any doubt concerning the guilt of the suspects but instead on his judgment that Japan’s judicial system is incapable of protecting their rights. His action is a startling condemnation of criminal justice practices in Japan. In the course of his judgment, he wrote that Japan’s system allows “flagrant denial of fair trial protections”.

Japanese attorneys frequently use the expression “hostage justice” to describe a system in which suspects can be detained for up to 23 days without charges and must endure interrogations throughout this period without the presence of legal counsel. 5 Those who continue to proclaim innocence may be detained for many weeks and months thereafter. Just one example among many, Tsuguhiko Kadokawa, former chairman of the publishing house, appeared at the FCCJ in June to describe his detention for 226 days as his trial on a bribery charge related to the 2020 Olympic Games moved forward. Kadokawa had not been convicted of any crime; his treatment echoes the cry of the Red Queen: “Sentence first - verdict afterwards.” 6  

Japanese practices 'cause for concern'

After more than a decade on the bench, in March 2021 Paul Goldspring was appointed Senior District Judge (Chief Magistrate) with leadership responsibility for over 300 judges who work in magistrate courts in England and Wales. In the British system, magistrate courts are workhorses, trial courts that receive and dispose of more than a million criminal cases per year. 7 In addition to his administrative responsibilities, as the Chief Magistrate, Goldspring is charged with hearing especially sensitive and complex matters such as “terrorism, high profile cases, Royals charged with criminal offences”. 8

The Japanese government and the suspects in the Harry Winston cases are each represented by legal counsel who argue for and against extradition. For their part, Chappell’s attorneys made a detailed presentation of the many ways in which Japan’s procedure hampers the attempt to present a defense, including lengthy detentions and denial of the presence of legal counsel during interrogations.  

It does not appear that Judge Goldspring had prior knowledge of Japan’s practices. After reviewing the defence counsel presentation, he granted Japan’s representatives the opportunity to respond with assurances that, if extradited to Japan, the suspects would be treated fairly. 9 For example, he requested that “in Mr. Chappell’s case interrogations will not be ‘oppressive in length, either individually or cumulatively’”. But he was not satisfied by Japan’s response that simply recited rules that apply to interrogations. He found that the rules are subject to broad exceptions and nothing in Japan’s response “suggests or promises that those exceptions will not be applied to Mr. Chappell”. 10

In addition to the length of interrogations, the judge presented a long list of Japan’s practices that raised concern. One limitation that always attracts the condemnation of international rights bodies is Japan’s ban of defence counsel from police interrogation rooms. Goldspring wrote, “Having found that Japan flatly excludes defence lawyers entirely from the interrogations themselves … I requested a personal assurance that in Mr. Chappell's case there will be 'measures to allow access to legal advice...during the interrogations.”

But Japan's representatives failed to provide such an assurance. Goldspring described the presence of defence counsel during interrogations to be the “internationally accepted minimum standard” and he found the lack of the assurance “a protentional flagrant denial of fair trial protections”.   

Goldspring also considered the physical conditions of detention in Japan. He seemed dumbfounded that Japan’s representatives would not identify the detention facilities or prison where the suspect would be held: “It is clear that unless a prison is named and specific detail as to how each of the concerns raised is adequately dealt with then the assurances are inadequate.”

In particular, he found that in Japan detainees face “a real risk of exposure in pre-trial detention to “unbearable heat in the summer, severe freezing temperatures and lack of heating in the winter, lights kept on all night and prohibition of unwarranted use of water”. To ensure that Chappell would not have to suffer such conditions, Goldspring requested assurances that “minimum standards” would be respected, including that a “heat exchange system is installed and working, providing heat in the winter and AC in the summer”, and “that the system will in fact be used when required and not just available, 'the cell will be capable of being in darkness if desired, sufficient access to water for personal  care needs, access to proper sanitation facilities,' adequate light and ventilation”, and others.  

The judge was not satisfied by another response filled with generalities such as Japan’s prisons “generally have heating and cooling systems 'as necessary' and these systems are 'used appropriately'”.  He wrote that “this obviously falls short of the specific assurance requested; to meet the evidence accepted by this court that the systems may be installed but are not used in practice for cost-saving purposes”. 

Defense counsel undoubtedly made the judge aware of the treatment of Michael Taylor, the American extradited to Japan in 2021 after assisting in the escape of Carlos Ghosn.  His lawyers told the New York Times that Taylor “has suffered frostbite because of a lack of heating at Fuchu Prison in suburban Tokyo, where he is serving a two-year sentence”. 11

Another practice that has drawn international condemnation is the prohibition on visitors to suspects in detention (sekken kinshi). 12 In response to his request for an assurance that Chappell would be allowed visits from family members and others, Goldspring was startled by Japan’s response that “for pre-trial prisoners, Japanese law permits 'in principle' the warden to 'prohibit' visits altogether”. 13

The judge also seemed astonished to learn that criminal suspects do not enjoy the right to confidentiality in their communications. “No assurances are offered concerning the privacy of Mr. Chappell's correspondence,” he wrote. “Even his legal correspondence will apparently be 'inspected to the extent necessary'. It is not clear whether the principle of legal privilege exists in Japan … the response suggests it does not, it is obvious that a fundamental pilar of article 6 is the right to confidential correspondence with legal advisers, yet Japan fails to assure such protections to Mr. Chappell.” 14 Article 6 refers to a key provision in the European Convention on Human Rights.

The foregoing provides only a partial summary of the long list of problems identified by the Chief Magistrate where an extraditee could be expected to experience treatment that falls short of international legal standards. The court’s judgment also addresses other problems such as the “misuse of restraints,” poor medical care, limited opportunity for physical exercise, “forced or compulsory labor,” and requirements that inmates look straight ahead and refrain from talking. 15

In conclusion, Goldspring refused extradition on the grounds that Japan’s failure to provide the requested assurances left open the “real risk of inhuman treatment contrary to Article 3” of the European Convention on Human Rights.

The Ghosn effect

Like 45 other member states, the United Kingdom is bound by the terms of the European Convention on Human Rights, which protects a long line of individual rights, including rights to fair treatment in criminal proceedings. 16 Goldspring ruled that Japan fails to meet the standard of no fewer than four ECHR provisions, including Article 5, which protects the right to liberty and security and Article 6, which protects the right to a fair trial.

Japan itself is not a member of the ECHR, but it is a signatory to several other international human rights treaties. UN committees that oversee compliance with these treaties repeatedly chastise Japan for failing to provide fundamental guarantees required by treaty. For example, in 2014, the UN Human Rights Committee recommended that the Japanese government provide alternatives to detention, including bail, during the pre-indictment period and the right to have a lawyer present during interrogation. The committee also called for abolition of the “substitute detention system” (daiyo kangoku), whereby suspects are detained in local police cells instead of separate facilities as required by Japanese law. 17

The Carlos Ghosn case was examined by the UN Working Group on Arbitrary Detention, which issued an opinion stating that that “solitary confinement, the deprivation of exercise, constant light, and the absence of heating, as well as limited contact with family and legal counsel” compromised the suspect’s capacity to defend himself. 18

Japan is presently undergoing review regarding its obligations under the UN Convention Against Torture. In its most recent recommendations, issued in June 2013, the reviewing committee wrote that Japan’s justice system “relies heavily on confessions in practice, which are often obtained while in the daiyo kangoku without a lawyer present. The committee has received reports about ill-treatment while interrogated, such as beating, intimidation, sleep deprivation, and long periods of interrogations without breaks”. 19

The committee reiterated its previous recommendations that Japan “take all necessary steps to in practice ensure inadmissibility in court of confessions obtained under torture and ill-treatment,” and “establish rules concerning the length of interrogations with appropriate sanctions for non-compliance, improve criminal investigation methods to end practices whereby confession is relied on as the primary and central element of proof, and implement safeguards such as electronic recordings of the entire interrogation process”. 20

All of these warnings have fallen on deaf ears. As they did in Judge Goldspring’s court, Japan’s representatives typically ignored specific requests, instead delivering anodyne responses such as “Japan’s criminal justice system sets out appropriate procedures and is administered properly to clarify the truth in criminal cases while guaranteeing the fundamental human rights of individuals concerned”. 21

Why no extradition treaty?

Another puzzling aspect of the case is that there is no extradition treaty between Japan and the United Kingdom. The UK has concluded extradition treaties with more than 60 countries, so why no treaty with Japan? According to attorney Yuichi Kaido, Japan has entered into only two extradition treaties, with the U.S. and South Korea. The easy explanation is that countries hesitate to conclude treaties with Japan because it applies the death penalty. 22 But the U.S. also executes people every year and has concluded more than 100 extradition treaties. And states have the power to refuse extradition of individuals at risk of execution even though a treaty is in effect. (U.S. UK case)  

The existence of only two Japanese extradition treaties suggests that there is a broader issue. In his 2023 Judgment, Goldspring quoted a statement made in parliament on behalf of the government 20 years earlier. “The countries which we do not have general extradition arrangements are, if I may be blunt, often the kind of countries where we might be unable to extradite for human rights reasons." 23

It appears that Japan is relegated to a category ordinarily reserved for dictatorial regimes where basic rights are denied. 24 As noted above, a U.S. federal court’s approval for extradition in the Taylor case led to maltreatment.

The Japanese government appealed the Harry Winston judgments and a court hearing on the appeal was held in London on October 15 last year. 25 But unless Japan produces a list of assurances satisfactory to the appellate court or persuades the court that Goldspring’s analysis was incorrect, the judgment will stand.

When he learned of the Goldspring judgment, criminal law scholar Makoto Ibusuki said: “Maybe the Chappell case provides an opportunity to tell the world the truth. Suspects are unable to withstand the psychological and physical stress of harsh interrogations and detention conditions in an environment isolated from society and without the presence of a defense attorney and are forced to confess.” Prominent defense attorney Takashi Takano said: “Defense counsel frequently charge that Japan's practices violate international human rights law, but the courts reject these arguments. Maybe our judges can learn from European courts that such practices constitute a severe violation of basic human rights.”

Alongside international human rights committees, Japan’s bar associations and others, experts such as Ibusuki and Takano have long criticized Japan’s practices and demanded reform. But Judge Goldspring’s ruling is not mere criticism; it is the exercise of power. Japan’s representatives may appeal and complain all they like, but their suspects walk free.

Lawrence Repeta, a former professor of law at Meiji University, is author of Japan’s Prisoners of Conscience (Routledge, 2023). 

Footnotes:
  1. https://english.kyodonews.net/news/2022/12/3267349be2ce-3-british-men-held-over-2015-jewelry-store-robbery-in-tokyo.html?phrase=Romania&words=. 
  2. Government of Japan v. Joe Anthony Chappel (sic), Westminster Magistrates’ Court, Judgment of August 11, 2023 (“2023 Judgment”).  The Court notes that the August 2023 judgment was the third issued in relation to the Chappell case.  The first concerned procedural matters and the second concerned the court’s acceptance of evidence presented by the defense.
  3. Sabrina Penty, “Former West Ham player fights extradition to Japan after being accused of taking part in violent raid on Tokyo jewellers,” 16 October 2024 https://www.dailymail.co.uk/news/article-13965457/former-west-ham-player-extradition-japan-violent-raid-tokyo-jewellers.html.  “Extradition to Japan refused,” 25 July 2024. https://www.doughtystreet.co.uk/news/extradition-japan-refused.  The third suspect was imprisoned in an unrelated case.
  4. The arrest warrants were issued on 17 August 2021.  2023 Judgment, section 8.   
  5. “Japan: ‘Hostage Justice’ System Violates Rights,” 25 May 2023. https://www.hrw.org/news/2023/05/25/japan-hostage-justice-system-violates-rights.  (“2023 HRW Report”)
  6. http://www.online-literature.com/carroll/alice/12/  Chapter 12
  7. “Court statistics for England and Wales,” 13 September 2024.  https://commonslibrary.parliament.uk/research-briefings/cbp-8372/, 
  8. “Paul Goldspring” (University of Hertfordshire alumni) https://www.herts.ac.uk/alumni/alumni-stories/paul-goldspring.
  9. In this regard, the court applied the practice approved by the European Court of Human Rights in in a 2012 decision, Othman (Abu Qatada)-v-UK) [2012]55 EHRR1.  The practice allows states requesting extradition to make assurances that will remove the risk of potential violations of the European Human Rights Convention.
  10. All quotations are from 2023 Judgment.
  11. The New York Times report on the treatment of Mr. Taylor and the treatment of convicts more generally recites many of the concerns that trouble Judge Goldspring.  David Yaffe-Bellany and Ben Dooley, “American Behind Carlos Ghosn Escape Is Ailing in Japanese Prison, Lawyers Say,” 4 February 2022. https://www.nytimes.com/2022/02/04/business/michael-taylor-carlos-ghosn-escape-japan.html 
  12. Japan’s courts routinely grant prosecution requests to prohibit visits from anyone other than counsel.  Even family visits are denied.  This is directly contrary to principles adopted by the United Nations General Assembly in 1988.  U.N. Principle 15 expressly declares that communications with the outside world, and in particular family members, "shall not be denied for more than a matter of days.”  Lawrence Repeta, “The silencing of an anti-U.S. base protester in Okinawa,” The Japan Times, 4 January 2017. https://www.japantimes.co.jp/opinion/2017/01/04/commentary/japan-commentary/silencing-anti-u-s-base-protester-okinawa/.
  13. 2023 Judgment, section 46.
  14. 2023 Judgment, section 48.
  15. Goldspring added touching comments regarding unique difficulties faced by foreign detainees: “One must recognize the reality that will exist in custody in Japan, he will be completely isolated from friends and family, he does not speak Japanese, prisoners and/or guards who speak English will potentially be a vital aid to coping, whatever the cultural norms or prison rules, creating conditions that amount to inhumane treatment . . . .”  2023 Judgment, section 49.
  16. Council of Europe, https://www.coe.int/en/web/portal/46-members-states.
  17. 2023 HRW Report.
  18. 2023 HRW Report.
  19. “Concluding observations on the second periodic report of Japan, adopted by the Committee at its fiftieth session,” 6-31 May 2013.  https://www.ohchr.org/en/documents/concluding-observations/catcjpnco2-concluding-observations-second-periodic-report-japan  (“CAT Observations, 2013”)
  20. CAT Observations, 2013.  For a full description of periodic report requirements and committee review see Lawrence Repeta, “U.N. Committee Faults Japan Human Rights Performance, Demands Progress Report on Key Issues,” https://apjjf.org/lawrence-repeta/3147/article.html
  21. 2023 HRW Report.
  22. For a discussion of Japan’s extradition limitations, see  Yuichi Kaido, “Of all the countries in the world, why is it that Japan can conclude extradition treaties with only two?” (author’s translation)
  23. 2023 Judgment, section 10.
  24. Due to the lengthy detention they endured after criticizing deployment of Japan’s Self-Defense Forces to Iraq during the war, Amnesty International labeled three peace protesters “Prisoners of Conscience” in 2004.  See Lawrence Repeta, Japan’s Prisoners of Conscience (Routledge, 2023).  https://www.routledge.com/Japans-Prisoners-of-Conscience-Protest-and-Law-During-the-Iraq-War/Repeta/p/book/9781032046266.
  25. Sabrina Penty, “Former West Ham player fights extradition to Japan after being accused of taking part in violent raid on Tokyo jewellers,” 16 October 2024.  https://www.dailymail.co.uk/news/article-13965457/former-west-ham-player-extradition-japan-violent-raid-tokyo-jewellers.html