Trial and error

Josh Noblestone takes a closer look at the case of drug-smuggling suspect Nick Baker and what it reveals about Japan's criminal justice system.

Nicholas John Baker had it all. The trained chef ran a successful gardening business in his hometown of Stroud, Gloucestershire and with his fiancée Beverley was raising their 1-year-old boy, George. That is, until he made the fateful decision to carry a friend's suitcase through customs at Narita International Airport.

"I was tired. I was hungover from the flight. I had no reason to think there was all this shit in his bag. I thought he was a mate," says the 32-year-old Englishman through a scratched and spotted plexiglass partition in one of six small visiting rooms at Chiba Detention Center. "It was the biggest mistake of my life. If there's one thing I could change in my entire life, it would be that one split second."

The suitcase Baker was carrying held 41,120 tablets of MDMA (ecstasy) and 992.5 grams of cocaine hidden in a false bottom. It was the largest single shipment of ecstasy to have ever been brought into Japan and enough justification for a Japanese judge to put Baker away for 14 years. In a country in which 99.9 percent of cases brought to trial end with the conviction of the accused, Baker's verdict comes as no surprise. What is surprising is how the circumstances surrounding his arrest and trial have attracted widespread attention to what experts say is a criminal justice system sorely in need of reform.

Change of plans
According to court documents and Baker himself, Baker and a friend of two years from Stroud, James Prunier, had been traveling in Europe buying up clothes to resell at flea markets in the countryside when Prunier suggested a trip to Japan for the 2002 World Cup. When they realized the World Cup schedule would conflict with Baker's business obligations, Prunier suggested they go earlier to visit the stadiums and buy some souvenirs. Described by his mother as a "football fanatic," Baker decided to take the journey.

On April 12, 2002, the pair left Belgium's Brussels National Airport, passing through London's Heathrow Airport on the way to Narita. They arrived in Japan around 11am on the morning of April 13 and got off the plane together.

According to Baker, Prunier passed through passport control and arrived at the luggage carousel first. When Baker joined him later, Prunier handed him his own bag and told him to line up. "I'll get your bag when it comes out. You'd better hurry up… I'll be right there," Prunier told Baker, who dutifully took his place in line. When the customs official at the gate asked if he could check the bag, Baker replied, "Sure, I don't mind. It's my mate's." Prunier, meanwhile, had already passed through customs and was on his way to the arrival lobby.

What happened next is without dispute. The customs officer searched the bag, X-rayed it, and found the false bottom stuffed with drugs. The Chiba Prefectural Police and Tokyo Customs Office arrested Baker for smuggling narcotics and violating the customs law. He was taken into custody.

Baker's insistence that the bag wasn't his but the property of his traveling companion didn't completely fall upon deaf ears. According to evidence submitted in court, officials tailed Prunier all the way to his hotel in Tokyo and monitored his phone calls. Two days later, he was seen boarding a flight out of Japan. Since then no efforts have been made to contact Prunier, who denied Baker's charges in an interview with the Stroud News & Journal, or have him arrested as an accomplice-and no explanation has been offered for the lack of action.

What we do know is that with Prunier out of the country, the authorities were left with nothing but the man holding the bag.

Under arrest
In Japan, the police can hold a suspect for up to 48 hours-during which time access to a lawyer is limited-before they either have to release him, or file his case with the prosecutor. In most cases, as in Baker's, the accused is turned over to the prosecution, who has 24 hours to indict, conditionally release or completely release the prisoner. They also have the option of asking for ten more days of detention to conduct further interrogation and continue the investigation.

The courts, almost without exception, grant an extension that can be extended yet another ten days. In other words, once arrested for a crime in Japan, suspects can spend up to 23 days in detention during which time access to a lawyer is limited and interrogation, which is not recorded and does not take place in the presence of an attorney, is allowed to take place all day long.

By the end of the 23 days, most Japanese citizens sign their names and place a fingerprint on a confession written out by hand by the interrogating officer. In the case of foreign suspects, confessions are translated orally by a court-approved translator. There is no recording, either audio or video, of the translation, which means the accused and their lawyers are unable to review the confession or dispute it in court.

Baker with his now 2-year-old son George, who he has not seen since the arrest.

Now well ingrained in practice if not in law, Japan's criminal procedures have led to calls from the Japan Federation of Bar Associations for greater access to attorneys, recordings of all interrogations and the abolition of forced confessions. But the likelihood of reform at all levels of the system remains extremely low. "I think it's a structural problem deeply rooted in the Japanese criminal justice system," says Futoshi Toyama, deputy director of the association's Office of International Affairs and a former criminal defense lawyer. "It's very difficult to get rid of this problem."

Baker, who maintained his innocence even through almost 11 months in solitary confinement at Chiba-during which time he was only allowed visits from his attorney and British consular staff-says the interpreter would skim four or five pages of Japanese text before providing a cursory summary. Rather than translating Baker's replies, the interpreter would tell him how to respond. In the end, Baker says, they lied.

"The police told me I was incriminating James," says the inmate, wearing brown plastic slippers, navy sweatpants and a white T-shirt with www.justicefornickbaker.org across his chest in red letters. "They told me I can go home. So I said, 'Okay, here's me print. Thank you very much.'"

The confession Baker signed implied that he knew he was carrying drugs in the bags and that he had bought the bag himself five years previously. The judge later dismissed Baker's claims that the statement had been translated differently to him, saying that the police interpreters had obtained high scores on TOEIC exams and in some cases had studied in the US and England.

Common cause
In many ways, Baker's case is not unique. "As a lawyer, I had many sad cases like this which were not famous," says Toyama, referring to problems with translation and allowing documental evidence into trial. "It's common practice in Japan. It's not a special case."

In fact, Toyama says the odds are stacked against anyone accused of a crime in Japan considering that last year only 49 out of 75,570 cases, or .06 percent, of criminal cases ended with an acquittal. "The high conviction rate means any conviction must include some miscarriage of justice," he says. "For individual defendants it's not fair. For innocent defendants it's clearly against them."

Baker with his mother Iris and brothers Wayne and Martin

What sets Baker's situation apart from the rest is the intense pressure being exerted by his family and the British government on his behalf. Baker's mother, Iris, who has two other sons, has been at the forefront of efforts, pleading with everyone from the Japanese media to Prime Minister Tony Blair to look into the case and see that justice is done. "I have told Nick that mother and son [must] unite to survive this terrible miscarriage of justice and we will fight for everyone's human rights. This is a right of birth not privilege," she writes in an email from England. "Nick is not a criminal. He was just stupid and careless and now we are all being treated like criminals because it affects us all."

Of particular concern to Iris Baker is her son's health, with ailments suffered over the course of his detention including bleeding gums, a broken finger, daily headaches, severe depression, and extreme back pain caused by sitting on the concrete floor.

The British Embassy in Tokyo, meanwhile, maintains it is doing everything in its power to monitor Baker's case and his well-being. "Mr Baker has received the full support of our Consular staff in Tokyo, who will continue to do all they properly can to assist him. This ongoing support has also been extended to Mr Baker's family in the UK by Consular staff in London," says an embassy spokesperson. "We will continue to monitor Mr Baker's case closely and to seek explanations on matters of concern whenever it is necessary to do so."

It took an extraordinary piece of information that leaked out during Baker's trial, however, to attract widespread public attention to the case. On May 9, 2002, Prunier was arrested in Belgium for smuggling drugs along with three British youths. Baker's former friend's traveling companions were all found with drugs hidden in false-bottomed suitcases Prunier had bought for them while his bag contained nothing but clothes. After a lengthy investigation, the three youths were released and only Prunier was charged with a crime. He is now free on bail awaiting trial.

Baker knows this information is crucial in backing his claims, saying, "The biggest difference between me and the other people in here is I've got the evidence that proves my innocence." His lawyer, Shunji Miyake, asked the court to confirm the arrest of Prunier through the auspices of the Foreign Ministry. A confirmation was made but further requests to obtain the relevant information and documents from the Belgian courts was opposed by the prosecution and summarily rejected by the judge on two occasions.

The refusal to allow Prunier's arrest to be used in Baker's defense resulted in a strongly worded letter sent by the British Embassy to the Chiba court on December 12, 2002. "If the documentation requested by defence counsel should prove to be of sufficient importance to assist Mr Baker in proving his innocence but is denied being entered into court, the question of a fair trial will undoubtedly be raised in several quarters," the letter stated.

On May 10, 2003, almost a month before Baker's verdict was scheduled, this letter and the growing concerns surrounding the trial were reported in detail in Japan's largest newspaper, the Yomiuri Shimbun. More stories in the international press and the ongoing efforts by Iris Baker helped attract the attention of Fair Trials Abroad, an NGO standing up for fair judicial process around the world.

From left, Baroness Sarah Ludford, Iris Baker and Sabine Zanker in front of 10 Downing Street after submitting a petition urging the prime minister to help secure a fair trial

"We are convinced that he has not received a fair trial according to international recognized standards," says FTA attorney Sabine Zanker. "During the long hours of interviews, his hands were handcuffed at his back… Nick, frightened and confused, was compelled to sign the statement which was later used against him to secure his convictions, as he was promised that he would be allowed home when he would obey as told."

Also campaigning on Baker's behalf has been Baroness Sarah Ludford, a member of the European Parliament, who made a special visit to Japan with Zanker and harshly criticized the legal proceedings. In the end, their efforts had little effect on the court. Judge Kenji Katoya handed down a prison sentence one year shy of the maximum statutory penalty of 15 years, plus the maximum fine of ¥5 million yen (there is no jury system in Japan). According to those present, the verdict was an almost word-for-word copy of the prosecution's indictment document.

At one point, the judge wrote that "we can ascertain that there is an international drug-smuggling ring behind this despicable deed" without offering any supporting evidence. He did, however, allow Baker's days in confinement be included as time served, "even though the defendant made illogical claims and repeatedly denied his guilt." This was seen by many as unintended irony, since the verdict also made a de facto admission that Baker's long stay in solitary confinement was the result of his failure to admit to the crime.

Biding time
Four months after his sentencing, on a clear October morning at Chiba Detention Center, Baker appears older and paler than the photos that have been circulating in the press. He eats, sleeps and goes to the toilet in a cell shared with a three other prisoners, including a newly arrived American. He is allowed to bathe twice a week and to exercise-what Baker describes as standing around in a courtyard-three times a week. He is also allowed to write one letter and receive one 15-minute visit per day. There are no phones and no Internet access, but he does write in a journal every day.

Baker's lawyer, meanwhile, is pursuing an appeal that has yet to be scheduled and is widely seen as having hardly any chance of seeing the conviction overturned. "Generally speaking, there's a very, very small chance," says the JFBA's Toyama, "not just for foreigners but also Japanese."

Indeed, statistics from 2002 show that convictions were upheld in all but 0.25 percent of appeals. Miyake, however, insists the chances "are not low" and asserts that Baker has been the victim of malpractice due to a "systematical problem of criminal procedure." Iris Baker, meanwhile, has petitioned 10 Downing Street and continues to campaign tirelessly for her son's release. If his sentence is upheld, Baker can apply for the newly enacted international transfer agreement to serve out his sentence in the UK. But first he must pay off his ¥5 million fine in cash or by working in a prison factory at a rate of ¥10,000 a day, time which would not be applied to his sentence. There's also a chance Baker could be paroled for good behavior, what Toyama calls an "open secret" as a result of Japan's correctional system's desire to reduce the number of foreign prisoners.

In spite of the odds stacked against him and the nervous blue-suited guard monitoring his conversation at his side, Baker claims he's optimistic. "I gotta believe with all the pressure they're putting on this, they'll have to let it go," he says. "I can't believe that it can continue like this."

Photo credit: Courtesy of Iris Baker
Prison: Tama Miyake Lung