The substantive and procedural laws of Japanese criminal justice presuppose a monolingual nation. It is axiomatic that this kind of nation will be very lenient towards offenders. Individuals may offend, but it is believed without hesitation that if they repent and turn over a new leaf they will become honest men, rehabilitated into the mainstream of society. Japan has operated successfully to date in accordance with just this principle. However, Japan's criminal justice system is on the verge of a crisis, faced with the internationalisation of crime and the underworld activities of foreign criminals resident in Japan brought about by globalisation. It is proposed to bring this crisis into focus, examining the critical state of affairs caused by the presence of foreign criminals resident in Japan by viewing developments in criminal activity, investigation, trial and sentencing.

The White Paper analyses the crimes of theft, immigration law violation, breach of regulations concerning illegal drugs and violation of the laws concerning the prevention of prostitution committed by foreigners in Japan *1 in the year 2000 according to the nationality of those arrested. Looking firstly at theft, more than half of those arrested were Chinese (54%), followed by Brazilians (10.1%) and then Vietnamese (8.3%). In respect of theft following breaking and entering, more than 80% of offenders were Chinese (80.1%). Chinese committed the most immigration violations (39.2%), followed by Koreans (17.9%) and Filipinos (8.8%). Iranians take up a quarter of arrests relating to breach of regulations concerning illegal drugs (24.3%) followed by Filipinos (19.6%) and Brazilians (15.4%). In respect of violations of the laws concerning the prevention of prostitution, Thais account for the most arrests (32%) followed by Chinese (26.2%) and Columbians (23.8%).

The White Paper proceeds to examine by nationality the new files on 16,074 individuals received by the Public Prosecutors Office in relation to suspicious incidents in the year 2000. Chinese individuals accounted for 42.1% (6,770 suspects), those from the Koreas came to 15.8% (2,545 suspects), Filipinos took up 6.1% (987 suspects), Brazilians accounted for 5.5% (890 suspects) and 4.3% were Thai (688 suspects) and so on, demonstrating that the great majority of suspects, 84.5%, were from the Asian region (13,586 individuals). Viewing the results according to the crime concerned, the most common offence was immigration violation at 7,113 suspects (44.3%), followed by 3,559 persons suspected of theft (22.1%), 737 suspected of violating the law controlling stimulant drugs (4.6%), 714 suspected of inflicting bodily injury (4.4%) and 334 suspected of felony murder.

Examining the crime of theft, bold methods hitherto unimagined by Japanese offenders and not out of place in an action movie stand out. These include the widespread and systematic use of lock picking tools in theft following breaking and entering (so that access is gained in seconds), the use of cranes to steal automatic vending machines and the use of a truck to smash into and destroy the front entrance of a house so that the valuables inside could be removed in broad daylight. This is not crime committed in fear of detection and arrest. Detection and pursuit by the police are expected. It is almost impossible to deter this kind of crime. Accordingly, there is no alternative but to deal with the problem by means of a shoreline policy preventing illegal immigration and at the investigative and sentencing stages following arrest.

Modern navigation instrumentation is making tremendous advances. If GPS technology (ascertaining location with the aid of a satellite) is put to use, a ship of Japanese origin and a suspicious vessel carrying stimulant drugs can easily and accurately pinpoint a rendezvous at sea in the dead of night, making it simple to smuggle illegal drugs into Japan. The enactment of laws establishing new security measures to counter crimes committed utilising high-tech equipment is already necessary in today's Japan.

It is common for foreigners to be involved in crimes concerning the fraudulent use of fake credit cards, *2 the theft and export of expensive foreign cars *3 and dealing in illegal stimulants. In relation to these crimes there are problems related to the difficulty of information gathering caused by the language barrier and the secret nature of the crime. It is not possible to get a grip on these cases using the investigative methods based on presumptions about fellow Japanese. New legislation has become necessary. It is desirable that the Wiretapping Law passed in August 1999 be made particular use of in the investigation of crimes committed by foreigners in Japan, however the Law can only be applied in extremely limited circumstances. The crime must fall into one of four categories as a prerequisite for monitoring; illegal drugs, firearms, people smuggling or organised murder. Only public prosecutors and police holding the rank of superintendent or above may seek a wiretapping order. Only judges of the District Court may issue the order and the period of monitoring is set at ten days (with extensions up to 30 days). Moreover, the application process required to put wiretapping into effect is extremely rigorous, involving the presentation of a writ, the attendance of a witness, limits on so-called unrelated matter wiretapping, the authentication of the entire record of wiretapped communications by the witness and its safekeeping by a judge, notification of the wiretapping to those concerned after the event and a system for lodging of complaints. Limitations of this kind are grounded, at a very basic level, in the idea that as those concerned are all blood-related Japanese, the privacy of each should be protected. Whether for this reason, the Wiretapping Law has never been invoked, not even on one occasion, although in reality there are a great many crimes presently taking place that should be investigated utilising the legislation.

Moreover the 'undercover investigation', which enjoys such wide recognition in the United States, is only permissible in our country in the case of drugs crime and where the special approval of the Minister for Health, Labour and Welfare has been obtained. (Narcotics and Hallucinogens Control Law, Article 58, Opiates Law, Article 45, Stimulants Control Law, Article 17 (4)) In relation to the recent frequent and large- scale drug dealing primarily carried out by foreigners resident in Japan there is no time to seek approval case by case and this law too is close to being ineffective. In relation to crimes other than drug-related crimes there is no legislation in place at all (with the exception of Article 27 (3) of the Firearms and Swords Control Law.

Japanese justice is said to be precise justice. In brief this means that at the initial investigative stage, the evidence, the suspect and all persons connected with the case are thoroughly investigated, and everything, from the obvious matter of the facts surrounding the case to even the extenuating circumstances *4 is brought out into the open. As a result the benchmark met before a public prosecutor prosecutes a matter is the same as that the judge must meet, that 'it is expected that guilt is certain'. In Japan 90% of criminal cases involve a confession. The accused stands before the judge and says, " I did it; there is no mistake". Even so the court examines the evidence. The system is impeccably deliberate and scrupulous, it being considered essential to avoid miscarriages of justice at all costs. Accordingly, cases in which the accused is found innocent account for no more that than 0.1% of criminal matters. This is because the perpetrator is actually in effect an esteemed 'colleague' and cases are heard with the aim of preventing the 'colleague' from re-offending and genuinely rehabilitating him.

It is doubtful whether this kind of process is entirely appropriate for the crimes of foreigners in Japan whose culture, code of conduct and standard of living are completely different. It is also uncertain whether this approach will assist them to achieve genuine rehabilitation when they return to their countries of origin. It is impossible to avoid the impression that, whilst in Japanese justice we see a model with a deep and rare lenient tinge, it is more and more the case that this precise justice is far removed from the prevention of recidivism in and rehabilitation of foreign offenders in Japan.

Governor Ishihara of Tokyo has announced a plan to build a detention centre in Harajuku to hold some 500-600 offenders. Local citizens have protested on the grounds that Harajuku is not a suitable location for a detention centre. The dearth of detention facilities has produced a trend whereby all but particularly heinous crimes (especially in the case of foreigners) are overlooked. This cannot fail to produce deterioration in Japan's civil stability. The costs, beginning with the expenses of providing interpreting, of detaining foreigners and of bringing them to trial are considerable. There are no options but to either build more detention centres or enter treaties and enact laws that mean foreign offenders in Japan are brought to trial in their own countries. The government and opposition parties indicated their intention to establish a system for the recognition of the qualification of 'court interpreters' who will interpret for foreigners involved in criminal and other matters by 5 January 2002. The aim is to standardize the level of interpreting provided in order to prevent interpreting errors during the course of police investigations and the giving of testimony in court. It is also necessary to ensure that the truth is accurately revealed.

The justifications for incarceration of criminals are said to include prevention of crime in general and in specific. In the first instance, prevention of crime in general involves the publication of penalties and the actual application of those penalties to offenders. By this threat of punishment unspecified elements in society are deterred from committing crimes. Specific prevention involves the rehabilitation of specific criminals by means of imprisonment, thus preventing their falling back into criminal activity. Of these, if one focuses solely on retribution and the threat of punishment, heavy penalties are ideal, yet Japan's penalties are amongst the lightest in the world. This is because we have assumed offenders in Japan will be fellow Japanese. Moreover, inmates in Japan are well provided for in terms of food, clothing and accommodation, even medical care being guaranteed and foreign inmates in Japan receive the same treatment. On release inmates are paid wages earned inside prison (roughly 4000 yen per month of imprisonment). Since Japan's prisons are relatively comfortable it cannot be expected that a sentence of imprisonment in Japan will act as a deterrent or as rehabilitation for those foreigners who hail from countries where living conditions are poor. Japan's taxes are being used on ineffective investigations, trials and correction.

The crime of theft is punished by public execution in China and amputation in some Islamic nations. However in Japan theft of even tens of billions of yen carries a maximum sentence of only ten years and there is no capital punishment for theft.*5 It goes without saying that criminals will flow into Japan from these countries that have cruel penalties. The question is what Japan's response will be. It is in Japan's national interests to reform our laws so as to be able to conduct summary trials, sentencing and repatriation of foreign offenders and failing that, so to be able to repatriate the entire investigation file along with the suspect and have them submit to trial in their own country.

In cases where Japan seeks the assistance of a foreign country in the investigation of a criminal matter the Public Prosecutor's Office and the police use diplomatic channels. The supply of information and documents from foreign countries necessary for criminal investigations can also be obtained using ICPO (International Criminal Police Organisation) channels. Regulations are set down in the International Investigations Cooperation Law in relation to the process by which Japan receives requests for cooperation from other countries concerning criminal investigations in those countries.

Both pre-existing bilateral arrangements and case-by-case negotiations found cooperation by means of the investigation of evidence and the sending of documents between Japan and foreign countries.

This kind of international cooperation is indispensable to the investigation of criminals who cross borders. However, in the end, it is fundamental that it is Japan's justice system that is applied to foreign criminals committing crimes within Japan, the systems of foreign countries being applied when Japanese commit crimes overseas. To reiterate, it is not appropriate to apply Japan's justice system to foreign criminals in Japan. Japan should recognise, even within the international criminal justice cooperation framework, that crimes committed by foreigners in Japan should be dealt with according to the law of the foreign national concerned.

The human rights of victims of crime have become highly topical of late, with the enactment in 2000 of the Victims of Crime Protection Law. Under this legislation measures have been adopted to enable a person who has suffered loss as a result of a crime (the victim) and their family to seek compensation for their personal and financial loss. However, in the case of crimes committed by foreigners, Japan's police, public prosecutors and courts incur material and personnel costs clearly well in excess of those incurred in cases where Japanese commit crimes. If those prosecutions are, in the result, substantively without effect, then it is surely impossible to avoid the conclusion that Japan's financial capital is being put to waste.

The Criminal Code contains crimes related to the national legal interest. These are the crimes of interference with a government official in the exercise of his duties, bribery and so on. They belong in the context where the nation is seen as an organisation that supports humanity's social communal life and activities that threaten the very existence of the nation or interfere with its enjoyment are penalised. The reality of crime committed by foreigners in Japan, which incurs waste in terms of time and money of Japan's human and material capital is precisely that, activity interfering with the enjoyment of the nation. To put it in the extreme, it may be appropriate to classify all crime committed by foreigners in Japan as crime relating to the national legal interest.