2017.03.27

2015 (A) 1266

Keishu Vol. 71, No. 3

Decision on a case in which an unsworn witness’ act of making false statements to a police officer based on prearrangement with a criminal is determined to constitute an act of “enabling the escape of” a criminal as referred to in Article 103 of the Penal Code (in the version before revision by Act No. 54 of 2016)

Case of enabling the escape of a criminal and suppression of evidence

Decision of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of July 8, 2015

While knowing that Criminal A offended the Road Traffic Act and committed a crime of negligent driving causing death, the unsworn witness conspired with Criminal A to concoct a fake story concerning theft of the motor vehicle that had caused the traffic accident, and the unsworn witness then made false statements to a police officer based on said fake story. Such conduct of the unsworn witness constitutes an act of “enabling the escape of” a criminal as referred to in Article 103 of the Penal Code (in the version before revision by Act No. 54 of 2016).

(There is a concurring opinion.)

Article 103 of the Penal Code (in the version before revision by Act No. 54 of 2016)



Penal Code (in the version before revision by Act No. 54 of 2016)

Article 103 A person who harbors or enables the escape of another person who has either committed a crime punishable with a fine or greater punishment or has escaped from confinement shall be punished by imprisonment with work for not more than 2 years or a fine of not more than 200,000 yen.

The final appeal shall be dismissed.

The statement of reasons for the final appeal submitted by Attorney OKA Shinichi and Attorney SHIDARA Azusa does not offer grounds for filing a final appeal as prescribed in Article 405 of the Code of Criminal Procedure because the arguments shown in said statement, including alleged contravention of court precedent, merely insist on a violation of law and regulation, an erroneous finding of a fact, and inadequate punishment.

In light of the arguments, the Supreme Court determined by its own authority as follows regarding whether or not the facts constitute a crime of “enabling the escape of” a criminal who has committed a certain crime deserving of a fine or severe punishment as referred to in Article 103 of the Penal Code (in the version before revision by Act No. 54 of 2016; the same applies hereinafter).

1. According to the recognition and records of the judgment in the second instance, the facts regarding the act of enabling the escape of the criminal in this court case are summarized as follows.

(1) On September 18, 2011 at about 3:25 am, when Criminal A was driving a standard two-wheeled Kawasaki ZEPHYR motorcycle (hereinafter referred to as “Vehicle A”), Criminal A recognized a red traffic signal coming toward him in his direction of movement before entering an intersection where traffic control was being conducted through a traffic signal system. Nevertheless, Criminal A negligently failed to stop and entered the intersection, while another driver, Driver B, was driving a standard two-wheeled motorcycle from the right side and entering the intersection. Due to the aforementioned negligence, Criminal A caused Driver B and his motorcycle to fall down and slide on the road, crashing his motorcycle into Vehicle A, resulting in a traffic accident inflicting a traumatic brain injury and other injuries on Driver B (hereinafter referred to as the “Accident”), who soon died of said injuries. However, Criminal A did not fulfill the duty to rescue and the duty to report under the law.

(2) The accused is the leader of a street gang to which Criminal A belongs. Hearing about the news that Criminal A had caused the Accident, the accused expected that the investigative authority would soon identify Criminal A as being responsible for the offense against the Road Traffic Act and the crime of negligent driving causing the death referred to above. Therefore, in advance of the expected arrest, the accused conferred with Criminal A and together they decided to concoct a fake story to the effect that Vehicle A had been stolen by someone.

(3) Based on the alleged facts explained in (1) above, Criminal A was arrested under warrant on July 8, 2012 and subsequently detained. When the accused was interviewed as an unsworn witness, a police officer asked the accused whether or not he knew something about the Accident, whether or not Criminal A had usually ridden Vehicle A, and whether or not the accused knew where Vehicle A was located. Through these questions, the accused became aware that the police had already identified Vehicle A as the vehicle that caused the Accident. Meanwhile, the accused told a lie to the police office as follows: “I have never seen him riding a ZEPHYR motorcycle. I heard him say that his ZEPHYR had been stolen. Since I have heard nothing about any motorcycle accident, I have no idea about who is responsible for the accident.” In this way, the accused offered a false explanation to the effect that someone other than Criminal A had committed the crimes described above because Criminal A had already had his ZEPHYR stolen at the time of the Accident.

2. According to the facts explained above, the accused conspired with Criminal A to concoct a fake story to the effect that Vehicle A had been stolen, all the while knowing that Criminal A had committed the offense against the Road Traffic Act and the crime of negligent driving causing the death referred to above. The said fake story would make the continuation of the detention of Criminal A unfounded; and the accused, as an unsworn witness, made false statements to the police officer based on said fake story. Such conduct of the accused is recognized as an act performed with an attempt to excuse a “person who has committed a certain crime” from ongoing detention, as referred to in Article 103 of the Penal Code, and such conduct can therefore be interpreted as an act of “enabling the escape of” a criminal referred to therein (cf. Supreme Court 1988 (A) 247, decided by the First Petty Bench on May 1, 1989, as shown on page 405, Keishu Vol. 43, No. 5). In consequence, the Supreme Court upholds the judgment in the second instance in which the accused is determined to have committed the crime of enabling the escape of a criminal.

Therefore, the justices unanimously render a decision as stated in the main text in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure. In this regard, there is a concurring opinion delivered by Justice ONUKI Yoshinobu.

The concurring opinion of Justice ONUKI Yoshinobu is as follows.

While I agree with the court’s opinion, I would like to additionally express my opinions as to why the conduct of the accused constitutes an act of enabling the escape of a criminal.

1. As instructed in the court’s opinion, an act of enabling the escape of a criminal refers to an “act performed with an attempt to excuse the criminal from detention.” In order to determine that an act of making false statements falls under the act of enabling the escape of a criminal, such false statements must be objectively likely to mislead the enforcement of criminal justice, in other words, must be likely to make it unjustifiable to continue the detention of the criminal.

2. In order to recognize an act of making false statements as an “act performed with an attempt to excuse a criminal from detention,” statements that are merely related in some way to the decision as to whether a detention is reasonable or not are not sufficient. Since a very broad range of statements may be related to such decision-making, the scope of punishment cannot be clearly defined merely based on the existence of a certain degree of relation. For the purpose of recognition as an act performed with the attempt to excuse a criminal from detention, the statements must directly and closely affect such decision-making. Looking into the statements made by the accused from this perspective, the accused said, “I have never seen him riding a ZEPHYR motorcycle. I heard him say his ZEPHYR had been stolen.” These statements were intended to demonstrate that it would have been impossible for Criminal A to use Vehicle A at the time of the Accident and that he could not in any way be the driver of the vehicle that caused the Accident. Therefore, the statements made by the accused can directly affect the decision as to whether or not to release Criminal A from detention, since investigations were being conducted based on the requisite condition that the real criminal was using Vehicle A at the time of the Accident.

3. The statements made by the accused in this court case do not merely constitute false statements, but also are based on the fake story concocted by the accused and Criminal A after conspiring. Whether or not statements made by an unsworn witness are credible is usually determined after checking their consistency with statements made by other relevant persons and objective evidence. Conspiracy to concoct a fake story invalidates one of the routes for such consistency checking and thus nullifies the credibility verification process. Depending on the circumstances, such a conspiracy may contribute to increasing the credibility of the false statements and eventually mislead the direction of the investigation. Therefore, the statements made by the accused can be determined to carry the risk of objectively misleading the enforcement of criminal justice. In terms of the degree of such risk, the conspiracy to concoct a fake story is virtually equivalent to a situation where someone other than the real criminal confesses to an alleged crime, and such a scapegoat confession is treated as a crime of enabling the escape of a criminal in prevailing legal practice. In this sense, the fact of the conspiracy to concoct a fake story is one of the important factors to be taken into consideration when determining that the false statements made by the accused constitute the crime of enabling the escape of a criminal.

4. In summary, the false statements made by the accused based on the conspiracy to concoct a fake story can be interpreted as an “act of excusing the criminal from detention” and therefore constitutes a crime of enabling the escape of a criminal as prescribed in Article 103 of the Penal Code. This court case is similar to the Supreme Court decision of May 1, 1989 rendered by the First Petty Bench, as quoted in the court opinion, in that the accused communicated with the criminal under detention and then made false statements. In addition, the conspiracy in this court case is considered to undermine the enforcement of criminal justice to the same degree as a confession made by a scapegoat in place of the real criminal, as determined in the May 1, 1989 decision. Therefore, this court case can be classified into the same category of cases as the May 1, 1989 decision.

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki