Entrapment and Controlled Deliveries in Japan: What Are the Legal Boundaries for These Investigative Techniques?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

In the complex realm of criminal investigations, particularly those targeting organized crime and sophisticated operations like international drug trafficking, law enforcement agencies may employ specialized techniques to gather evidence and apprehend offenders. Among these are "entrapment" (otori sōsa) and "controlled deliveries." While effective, these methods often raise questions about their legality, fairness, and the extent to which the state can be involved in activities that border on or facilitate the commission of a crime. This article examines the legal status, permissibility, and operational boundaries of entrapment and controlled deliveries under Japanese law.

Entrapment generally refers to an investigative method where law enforcement officers, or individuals acting as their agents, induce or encourage a person to commit a crime that they would not otherwise have been predisposed to commit, with the objective of initiating a criminal prosecution against that person. A common example in drug enforcement is an undercover officer posing as a drug user to solicit a purchase from a suspected dealer.

The Japanese Code of Criminal Procedure (CCP) does not contain explicit provisions that specifically authorize or regulate entrapment operations. Instead, such activities are generally considered to fall under the umbrella of "voluntary investigation" (任意捜査 - nin'i sōsa) as permitted by Article 197, Paragraph 1 of the CCP. This classification is because entrapment, in its typical form, does not involve physical force compelling an individual to act against their will, nor does it impose a legal obligation on the target to commit the offense.

However, even as a form of voluntary investigation, entrapment is not without its limitations. Concerns often arise regarding the fairness of such tactics and the propriety of the state potentially playing a role in instigating the very crime it seeks to prosecute.

The leading judicial precedent on this matter is a Supreme Court of Japan decision from July 12, 2004 (Heisei 16). In this case, which involved an investigation into the alleged intent to sell cannabis, the Supreme Court provided crucial guidance. It ruled that entrapment, at least in the context of investigating crimes like drug offenses (which often lack a direct, complaining victim and where evidence gathering through conventional methods can be exceedingly difficult), is permissible as a voluntary investigative technique under CCP Article 197(1) if it targets individuals who are already suspected of harboring the intent to commit such a crime should an opportunity arise.

The Supreme Court laid down three key conditions for the permissibility of such "opportunity-providing" entrapment:

  1. The investigation must pertain to crimes, such as drug offenses, that typically do not have a direct victim who would report the crime.
  2. The nature of the crime must be such that it is difficult to uncover or prosecute effectively using only ordinary or conventional investigative methods.
  3. The target of the entrapment operation must be an individual who is already suspected of possessing the predisposition or intent to commit the crime if a suitable opportunity were to present itself.

The Court's use of the phrase "at least" (少なくとも - sukunakutomo) when outlining these conditions is significant. It suggests that while these three criteria provide a clear framework for permissible entrapment, the door might not be entirely closed to its use in other circumstances, though such situations would likely face intense scrutiny.

A critical distinction, though not always explicitly delineated in Japanese statutes as it is in some other jurisdictions, lies between merely providing an opportunity for a predisposed individual to commit an offense (generally seen as acceptable under the 2004 Supreme Court ruling) and improperly inducing or instigating a crime in someone who had no prior criminal intent or predisposition (which could be deemed illegal or lead to the exclusion of evidence or even acquittal). The Supreme Court's focus is clearly on the former – targeting those already inclined to offend.

Controlled Deliveries (コントロールド・デリバリー - Kontorōrudo Deribarī)

Controlled delivery is another specialized investigative technique, frequently employed in combating transnational drug trafficking. It involves a scenario where law enforcement authorities become aware of an illicit shipment (most commonly drugs, but potentially other contraband) and, instead of immediately seizing the goods and arresting the initial couriers, they allow the shipment to continue its journey towards its intended destination under covert surveillance. The primary objective is to identify and gather evidence against a wider range of individuals involved in the trafficking network, from the initial senders and couriers to the organizers, financiers, and ultimate recipients.

Types of Controlled Deliveries

There are generally two main types of controlled delivery operations:

  1. Live Controlled Delivery: In this type, the actual illicit goods (e.g., the real consignment of drugs) are allowed to proceed to their destination under surveillance.
  2. Clean Controlled Delivery (or Placebo Delivery): To mitigate the risk of the illicit substances being disseminated into the community if surveillance is lost or the operation goes awry, the actual drugs are often surreptitiously removed by law enforcement at an early stage and replaced with a harmless, inert substitute (a placebo). The package containing the substitute is then allowed to continue its journey. This allows investigators to track the shipment and identify participants without the risk of the actual drugs reaching the streets.

Similar to entrapment, controlled delivery is generally considered a form of voluntary investigation permissible under CCP Article 197(1) in Japan. This is because the technique primarily involves surveillance and does not typically exert direct physical coercion on the suspects or impose a specific legal duty upon them; they are, in essence, being allowed to proceed with their pre-existing criminal plan, albeit under the watchful eyes of the law. Therefore, no special statutory provision beyond the general authorization for voluntary investigation is usually required for its execution.

The key distinction between controlled delivery and entrapment lies in the origin of the criminal activity being investigated. In a controlled delivery, law enforcement is reacting to an already ongoing criminal act or illicit shipment; their role is to monitor this existing activity and strategically delay intervention to maximize investigative reach. Entrapment, by contrast, typically involves law enforcement (or their agent) playing a more active role in initiating or prompting the specific criminal transaction that subsequently becomes the subject of the investigation.

Interaction with Customs and Immigration Laws: The Narcotics Special Provisions Act

While controlled deliveries are generally permissible as a voluntary investigative technique, "live" controlled deliveries involving the international transit of actual drugs can create legal complexities with other Japanese laws. Japan has very strict legislation prohibiting the unauthorized import and export of controlled substances, including the Stimulant Control Act, the Narcotics and Psychotropics Control Act, the Opium Act, and the Cannabis Control Act. Furthermore, the Immigration Control and Refugee Recognition Act generally prohibits the entry into Japan of any foreigner who is unlawfully possessing such controlled drugs. The Customs Act also designates these substances as goods that must not be imported.

If law enforcement knowingly allows a live shipment of drugs to enter or transit through Japan under surveillance, the customs and immigration officials involved could technically find themselves in a position of appearing to permit an illegal act, potentially giving rise to questions of administrative responsibility or even aiding and abetting.

To address this specific legal challenge and to facilitate international cooperation in tackling drug trafficking, Japan enacted the "Act on Special Provisions for Narcotics and Psychotropics Control, etc., and Other Matters for the Prevention of Activities Encouraging Illicit Conducts and Other Activities Involving Controlled Substances through International Cooperation" (commonly abbreviated as the 麻薬特例法 - Mayaku Tokureihō, or Narcotics Special Provisions Act). This Act contains crucial exceptions to the standard application of the Immigration Control Act and the Customs Act in the context of controlled delivery investigations.

Specifically, Articles 3 and 4 of the Narcotics Special Provisions Act empower immigration inspectors to grant landing permission to a foreigner who is unlawfully possessing controlled substances, and empower the director-general of a customs house to permit the unlawful bringing into or taking out of Japan of controlled substances, provided these actions are deemed necessary for the execution of a live controlled delivery investigation aimed at drug crimes. This legislation provides a clear and necessary legal safe harbor for officials participating in such operations, ensuring that the controlled delivery technique can be effectively utilized in international drug trafficking cases without contravening other domestic laws.

Admissibility of Evidence from Foreign Investigations Employing Entrapment-like Methods

A related issue arises when foreign law enforcement agencies use methods that resemble entrapment within their own jurisdictions, and this investigation leads to the seizure of stimulants that are either destined for Japan or have some other connection to Japanese criminal proceedings. The question then becomes whether evidence derived from such foreign operations is admissible in a Japanese court.

A Tokyo High Court decision on September 21, 2017 (Heisei 29) (unpublished), shed light on this. The case involved evidence stemming from an investigation by Thai police that had employed tactics similar to entrapment within Thailand. The Tokyo High Court reasoned as follows:

  • The actions of the Thai police were conducted under Thai law, within Thailand's sovereign territory. Therefore, Japanese law concerning investigative procedures did not directly apply to their conduct. As such, the question of whether the evidence was "illegally collected" under Japanese law (and thus potentially subject to exclusion) did not directly arise from the actions of the foreign agency.
  • However, the High Court introduced an important caveat. It stated that if a foreign investigation, even if lawful within its own jurisdiction, was conducted in a manner that "grossly violates the fundamental principles of due process" as understood within the Japanese Constitution and Code of Criminal Procedure, and if admitting the evidence derived from such a tainted investigation would "contravene the sense of justice," then Japanese courts could exercise their discretion to exclude such evidence.
  • In the specific 2017 case, the Tokyo High Court ultimately found the evidence in question to be admissible, implying that the methods used by the Thai police, while perhaps resembling entrapment, did not reach the high threshold of a gross violation of Japanese due process principles that would warrant exclusion. This suggests a degree of judicial deference to the investigative practices of foreign sovereign nations, unless those practices are so egregious as to shock the conscience of the Japanese legal system.

Conclusion

Both entrapment and controlled deliveries are recognized investigative techniques in Japan, falling under the general category of voluntary investigations, albeit with distinct legal considerations and frameworks.

The permissibility of entrapment is primarily guided by the 2004 Supreme Court precedent, which emphasizes the need for investigative necessity (especially in victimless crimes like drug trafficking) and focuses on targeting individuals already predisposed to commit the offense, rather than instigating crime in the innocent.

Controlled deliveries are viewed more as a method of surveilling and managing an already existing criminal enterprise. While generally permissible as a voluntary investigation, "live" controlled deliveries that involve the international movement of actual drugs necessitate specific authorizations under the Narcotics Special Provisions Act to navigate conflicts with customs and immigration laws.

Finally, evidence obtained from foreign investigations, even those employing methods that might be contentious under Japanese domestic standards, faces a high bar for exclusion in Japanese courts. Such exclusion typically requires a finding that the foreign investigative conduct constituted a severe violation of fundamental due process principles deeply embedded in Japanese law. These nuanced legal boundaries reflect Japan's efforts to combat serious crime effectively while endeavoring to uphold principles of fairness and justice in its investigative processes.