Plea Bargaining: Coming To Japan June 2018

Author:Ms Jo Rickards and Matthew Ewens
Profession:Mishcon de Reya

A new regime of plea bargain style cooperation agreements will come into force in Japan this June, in a further instalment to reforms of the Japanese Criminal Procedure Code. The Japanese scheme provides a notable contrast to the regime in the UK and is a notable concern for those doing business in Japan or involved in investigations with a Japanese element. 

Under the "New System", Japanese prosecutors will be able to enter into cooperation agreements with individuals or corporations who are suspects or defendants in relation to particular types of offences. Those offences include bribery, embezzlement and fraud, as well as offences related to tax and financial products.  Deferred Prosecution Agreements ("DPAs") in the UK are only available to companies.

In order to benefit from such agreements in Japan, the suspect or defendant will need to give a statement to the prosecution that implicates a third party, whether in connection with the same wrongdoing or in connection with an unrelated matter. Notably, unlike DPAs in the UK, cooperation agreements will not be available for reporting on one's own misconduct.

In addition to providing a statement to the prosecutor, the suspect or defendant may be required to testify in court and to provide evidence to substantiate their claims. To further safeguard against self-serving accusations, it will be a criminal offence to abuse the system, such as by providing false testimony. On the other hand, the New System will afford the suspect or defendant the benefit of being accompanied by defence...

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