1. What Is Arrest?
The purpose of the investigation is for a public prosecutor to make a suspicion of a crime clear and to determine whether it will prosecute a suspect, as well as to prepare for the trial after the prosecution. If the evidence necessary to determine whether a public prosecutor prosecutes or not and to do trial activities is destroyed or concealed, or the suspect runs away, the purpose of the investigation may not be achieved.
Then, as a mean to carry out the investigation with preventing the suspect from fleeing or destroying/concealing evidence, a judge may give a permission to place the suspect under physical restraint. This is called an “arrest” (to deprive the suspect of his/her liberty coercively and bring him/her to a designated location).
2. What Is the Procedure of Arrest?
The procedure of arrest is categorized into two type: “arrest with an arrest warrant,” and “arrest of a flagrant offender & arrest of a quasi-flagrant offender” which does not need an arrest warrant.
The former is also categorized into two type: the “ordinary arrest” that is carried out with an arrest warrant permitted by the judge in advance; and, the “emergency arrest” that the police first arrests the suspect and then requests an arrest warrant issued by the judge in cases where the suspected is suspected of having committed a certain amount of serious crime and there is no time to request for an arrest warrant.
(1) Ordinary Arrest
Ordinary arrest is to deprive temporarily the suspect of his/her liberty based on an arrest warrant issued by the judge.
There are two requirements of ordinary arrest: One is “grounds for arrest”, and the other is “necessity for arrest”.
①Grounds for Arrest
‘When there exists sufficient probable cause to suspect that an offense has been committed by a suspect’ (Article 199(1) of the Code of the Criminal Procedure).
It is necessary to deem the connection between the existence of a certain crime and the fact that the suspect has committed the crime to exist with an appreciable extent of probability.
Put simply, there is a high possibility that the suspect has committed the crime.
②Necessity for Arrest
Where the grounds for arrest is deemed, an arrest warrant will be issued; except where a judge deems that there is clearly no need for arrest the suspect.
As for the necessity, ‘if [the judge] finds that there is clearly no need for an arrest, because, for example, there is no concern that the suspect would flee or conceal evidence, in light of the age and environment of the suspect, the gravity and mode of the offense, and various other circumstances, the judge shall dismiss the request for an arrest warrant’ (Article 143-3 of the Rules of the Criminal Procedure)
Also, the “necessity for arrest” shall be denied in cases where there is clearly lack of the balance between the benefits gained from the arrest (the prevention of fleeing or destroying/concealing evidence) and the degree of violation of the rights of the suspect raised by arrest. So, the necessity for arrest is considered as a concept including that arrest is appropriate (appropriateness of arrest).
Moreover, regarding the crimes punishable with a fine of no more than 300,000 yen, misdemeanor or petty fine, only in cases where the suspect has no fixed residence or that he/she disobeys the request for appearance without justifiable reason, the arrest would be permitted.
(2) Arrest of a Flagrant Offender
A person who is in the very act of committing or has just committed an offense is a flagrant offender. “Any person” may arrest him/her without an arrest warrant.
For example, in a case of being sexually molested in the office, the victim and people around him/her is able to arrest the suspect. However, the requirements of the “arrest of a flagrant offender” is strict in order to prevent a wrong arrest as a layperson may arrest a flagrant offender (without an arrest warrant).
Although there are various theories on the requirements of the “arrest of a flagrant offender,” it is considered that mainly there are two requirements.
There are: ①it is obvious that a person who is suspected of having committed a crime has actually committed the crime (hanninsei in Japanese); and, ➁a temporal adhesiveness between the perpetration and the arrest.
As well, even though these two requirements are fulfilled, the arrest of a flagrant offender may not be permitted where there is clearly no need for arrest (no likely to flee or conceal/destroy evidence).
Also, when the public arrests a flagrant offender, those have to immediately hand him/her over to an investigative authority (for example, a police officer).
(3) Arrest of a Quasi-Flagrant Offender
According to article 212 (2) of the Code of Criminal Procedure, ‘[w]here any person who falls under one of the following items is clearly deemed to have committed an offense a short time before, he/she shall be deemed a flagrant offender;
- A person being engaged in fresh pursuit;
- A person carrying with him/her goods obtained through an offense against property or a dangerous weapon or other things which are manifestly believed to have been used in the commission of a criminal act;
- A person with visible traces of the offense on his/her body; or,
- A person who attempts to run away when challenged.’
For example, a person who has a gigantic wad of cash in his/her bag near the bank at which a bank robbery was carried out meets the definition of article 212(2) of the Code of the Criminal Procedure, so any person may arrest him/her without an arrest warrant.
(4) Emergency Arrest
Where there is a person who is believed to be a perpetrator right in front even though that person does not meet the requirements of arrest of a flagrant/ quasi-flagrant offender, the perpetrator would go somewhere while requesting an arrest warrant, and no one could arrest him/her.
In that case, one may arrest the perpetrator utilizing the proceeding of warrantless arrest in case of urgency. In this case, an arrest warrant is not needed at the time of arrest, and it is sufficient to request for it after the fact.
The requirements of warrantless arrest in case of urgency is as follows:
- A certain amount of serious crime cases (crime punishable with the death penalty, life imprisonment or imprisonment with or without work for a long term of 3 years or more);
- There is enough suspicion (higher amount of suspicion is required than that in case of ordinary arrest);
- It is too urgent to request for an arrest warrant and there is a necesity to arrest; and,
- After the fact “immediately” file the procedure of the request for an arrest warrant.
3. What happens if I get arrested?
Once arrested, generally one is prohibited from getting out of a detention facility within the police station (in certain cases not at the police office but at the detention house) and cannot freely have outside contact.
Arrest deprives the suspect of his/her freedom for up to 72 hours. However, where during this period a public prosecutor requests the maximum term of custody and a judge permits it, the suspect may be unable to get out of the detention facility for additional 10 days (maximum 20 days). When a public prosecutor subsequently deems prosecution to be appropriate, the suspect will be released, or in many cases unable to get out of the detention facility until the end of a trial as long as the bail is not permitted. During detention each and every day a police official or a public prosecutor examines with the suspect, they may carry out the on-site inspection or search the suspect’s house.
In principle, only lawyers may have an interview with the suspect during arrest. Therefore, the lawyers can provide with advice on the future policy and tell a message from the family of one arrested to him/her, vice versa. Also, regarding a crime that created the victim, the lawyer can launch activities for the settlement at the early stage, which would lead to favorable solution (shortening of the term of custody, light punishment, and so on).
4. Q&A concerning Arrest
①Police officers came home and took my child to the police station. Is this arrest?
Article 201(1) of the Code of the Criminal Procedure provides that ‘[w]hen a suspect is arrested upon an arrest warrant, the arrest warrant shall be shown to the suspect.’ In a case of the ordinary arrest, in principle an arrest warrant is shown in advance and then arrest a suspect.
Therefore, when police officers came home and took the child after showing an arrest warrant, one can say that this act falls into arrest.
On the other hand, if police officers did not show an arrest warrant, it’s highly likely that the suspect was required for voluntary accompanying and questioning. Where required to accompany voluntarily, there are two scenarios: one case that the suspect may go home after voluntary questioning; and, another case that he/she gets arrested after voluntary questioning.
AICHI Criminal Cases Law Firm provides with “free consultation” personally given by our rich experienced criminal lawyers. In cases where the suspect got arrested, our law firm provides with “the first interview service” that our lawyers visit to interview with the suspect at the earliest on that very day.
➁The police called me. If I do not appear at the police station, will I get arrested?
Only when there is a suspicion of having committed a crime (grounds for arrest) and a suspect may destroy/conceal evidence or flee (necessity for arrest), an arrest warrant is issued. In the case above, as the police asked to appear at the police station, it seems that there is a suspicion and the grounds for arrest is met.
Then, will a judge determine that there is the necessity for arrest due to rejection to the request for appearance? The rejection to the request for appearance is only one of various contexts which indicate the risk of fleeing or destroying/concealing evidence. So, it is considered that a judge determines the need for arrest taking the times of the rejection together with the age and circumstances of the suspect into account.
Therefore, it is unlikely that the suspect will get arrested immediately as he/she rejected the request for appearance just one time.
If one has a reason not to able to appear at the police station, it would be safe to contact with the police to make the arrangement.
③At which stage can I appoint a lawyer?
One can appoint a privately-appointed defense counsel whom he/she carries the costs, at any time, no matter before/after arrest.
On the other hand, there is the system of court-appointed defense counsel in which before the prosecution the state pays for legal fees and a court or a judge appoints the counsel. However, at present, the system is applied to only cases punishable with the death penalty, life imprisonment with/without work or imprisonment with/without work for a long term of over 3 years (the amended code of the criminal procedure which is planned to come into force by June 2018 will extends the application of the system to all detention cases).
④My husband got arrested. I am worried if his arrest will get to his office.
Unless the arrest gets a media coverage, the police does not necessarily inform a suspect’s place of work of his/her arrest even if he/she got arrested. However, when the detention is permitted and the suspect is taken into custody for several days, he/she will absent him/herself from work for the duration. Then it is going to be more likely that his/her office will get known about the case. There, to avoid from the long-term custody it is significant to appoint a lawyer and demand an early release. It is also important to consider measures in case that the suspect’s office gets known about his/her arrest.
⑤When arrested, can I have a contact with my family?
Family members (those other than a counsel) of a suspect who is under arrest are not permitted to have an interview with the suspect in principle. Only when the suspect is under detention, the interview with his/her family members is permitted. However, the interview with family members of the suspect is restricted in the sense that the interview is permitted in the presence of the investigative officials and with a time limit. Moreover, a judge may prohibit the family members from interviewing with the suspect when there is probable cause to suspect that the suspect may flee or conceal/destroy evidence.
On the other hand, a lawyer may freely interview with the suspect in principle. In add, the interview can be carried out without the presence of the investigative officials nor with a time limit.
One who is under arrest or detention often gets mentally tired from the prolonged examination in a closed room and a breakdown in contact with outside. Under such circumstances a suspect may make a mistake in corresponding to questioning, which may bring an irreparable situation.
Therefore, it is important to make a person in custody feel secure by sending a lawyer promptly.
AICHI Criminal Cases Law Firm will be committed to resolve a case in the best way in sending criminal lawyer to interview with one arrested on the day when contacted, supporting him/her and his/her family, and getting rid of their anxiety.
Those who are in trouble with their family member’s getting arrested or being unable to contact with him/her, please consult with us.
⑥Once arrested, will I inevitably get a previous conviction?
A person has a previous conviction (「前科」zenka) only when the person was convicted in a criminal trial.
Whether a public prosecutor prosecutes or not depends on his discretion. Where not prosecuted (suspension of prosecution), a criminal trial is not held. In this case, the suspect will not have a previous conviction (but have a criminal record (「前歴」zenreki).
AICHI Criminal Cases Law Firm provides with “free consultation” personally given by our rich experienced criminal lawyers. In cases where the suspect got arrested, our law firm provides with “the first interview service” that our lawyers visit to interview with the suspect at the earliest on that very day.
