Working for a Non-Prosecution Decision: What Defence Counsel Puts to the Prosecutor

What exactly is the lawyer doing while the detention continues? We are asked this often, by the person in custody and by the family waiting outside. Little of it is visible from outside, and yet the period before the disposition is decided is where the work is at its most intensive. In a foreign national's drug case especially, the bare fact of a conviction determines the future of the person's residence, so everything is directed at the single question whether charges are brought. This article describes what goes into the meeting with the prosecutor and into the written submission seeking a non-prosecution decision (不起訴処分).

Key points

• Before the disposition is decided, defence counsel submits a written opinion to the prosecutor seeking non-prosecution and, where appropriate, requests a meeting.
• The submission is built in three layers: the circumstances of the offence, general mitigation, and the effect on the person's residence.
• Because in a drug case a conviction leads directly to a ground for deportation (退去強制) under Article 24, item 4, sub-item (chi) (入管法24条4号チ), setting out that gravity by reference to the provisions is worthwhile.
• Material on who will take responsibility for the person, how they will be supervised, medical attendance, and continuity of work or study forms the backbone of the argument.
• Documents should not simply be filed as fast as possible; they should be assembled once the facts have been verified.

What is defence counsel doing before the disposition is decided?

Put simply, we assemble and deliver the material the prosecutor needs in order to decide whether to bring charges. By its nature, the investigative file tends to fill up with evidence pointing one way. Favourable circumstances do not appear before the decision-maker unless they are deliberately gathered and presented.

In practice, that means going over the facts repeatedly with the client, collecting the necessary material from the people involved, and drafting a written opinion on that basis. We then contact the prosecutor handling the case, submit the document and, depending on the matter, ask to meet and explain it in person. The detention period is finite, so the order of work is planned backwards from its end.

What goes into a submission seeking non-prosecution?

We build it in three layers. The first concerns the circumstances of the offence, that is, the assessment of the incident itself. The second is general mitigation, covering the person's living circumstances and what has happened since the incident. The third is the effect on their residence.

In the first layer we examine whether the elements of the offence are made out at all, whether the person can be said to have known what they possessed, and how the evidence was gathered. If there is something to contest, we argue it squarely at this stage, before drifting into mitigation. In the second layer we describe concretely the foundations of the person's life, their family, the reality of their work or studies, and the steps taken since the incident. Expressions of remorse in the abstract do not carry. What is needed is who did what, and when, supported by documents.

• Circumstances of the offence: elements of the offence, intent, manner of the conduct, quantity, involvement of others, lawfulness of the process of gathering evidence
• General mitigation: foundations of daily life, family, work and study, whether anyone was harmed, steps taken to prevent relapse
• Effect on residence: the structure of Article 24(4)(chi) and what a conviction would bring about

Does losing a status of residence bear on the charging decision?

We consider that it can, and we make it one of the pillars of our submissions. A Japanese defendant who receives a suspended sentence continues to live in the community. For a foreign national, Article 24(4)(chi) makes the bare fact of having been convicted of violating drug legislation a ground for deportation. There is no limit by type or length of sentence: a fine, a remission of punishment (刑の免除) and a suspended sentence are treated alike.

Moreover, the exclusion for suspended sentences sits in the proviso to sub-item (ri) of the same item, and that sub-item is expressed to apply in addition to those listed in (ni) through (chi). Drug offences lie outside it from the start, and the proviso does not reach them. A suspended sentence at trial therefore cannot be a destination when measured against residence. Given that structure, the defence of a foreign national's drug case has to be built around obtaining a non-prosecution decision before charges are filed.

The prosecutor handling the case will not always have the architecture of the immigration statute in mind. That is precisely why there is practical value in citing the provisions and setting out concretely what a prosecution would mean for this particular person. As one element of the material bearing on the exercise of discretion, it is worth stating directly.

What material do you assemble?

It depends on the case, but the items we consistently prioritise are set out below. In each instance what matters is that the document functions as support for a fact, not as a composition.

Gathering this material often means asking family members or people at the client's workplace for help. In doing so we think carefully about how much to explain and in what terms, since the person's reputation and standing at work are at stake, and we proceed by identifying the minimum that is genuinely needed.

• A written undertaking from someone taking responsibility for the client, setting out concretely that person's circumstances and how they will supervise
• Medical records, and where dependence is suspected, a treatment plan
• Documents from the employer on continuing employment, and from the school on continued enrolment
• Material on family composition, dependants and remittances showing the reality of the person's life
• A document setting out the person's reflections on the matter, tied to specific facts

What we keep in mind when meeting the prosecutor

A meeting is not, in our view, an occasion for stating our position and nothing else. It is also an occasion for understanding what the investigating side regards as the problem, and for testing whether we have material that answers that concern. Once the concern is identified precisely, the further documents to be submitted become clear.

Where the facts are in dispute, we are careful not to mix mitigation into the argument. Filing a stack of documents about remorse while denying the allegation undermines the consistency of the case. What is contested and what is admitted should be sorted out early; doing so is what makes the submission persuasive. A meeting is not, however, an occasion at which assurances about the outcome can be obtained, and we try to be careful not to raise expectations.

About our office

At Funado International Law Office, attorney Daisuke Matsumura handles every stage personally, from the first detention visit through to the close of trial. He drafts the written opinion and conducts the discussions with the prosecutor himself, because someone who does not know the details of the case cannot respond on the spot to the other side's concerns.

For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is on staff. Alongside the interpreter appointed by the investigating authorities, you have an interpreter working for you throughout the criminal process, so that taking instructions on the facts and confirming points for the written opinion can be done down to fine shades of meaning. For languages other than Chinese, we arrange an interpreter to suit the case. Renewals and changes of status of residence (在留資格) required after the criminal process are handled together with an affiliated administrative scrivener.

From matters we have handled

In the case of a woman in her twenties alleged to have withdrawn money as part of a specialised fraud operation, we set out how she came to act as she did and what she actually understood, and obtained a non-prosecution decision. It illustrates that even where the outward conduct looks difficult, describing the substance of a person's awareness carefully can change the assessment.

In a matter where the client was treated as a collector and re-arrested several times, careful handling of the interrogations and formal objections to improper questioning produced non-prosecution decisions on every count. We have also acted for a person who lost their status of residence and was arrested and prosecuted, negotiating with the authorities until the marriage and the acknowledgment of the child were established and obtaining special permission to stay (在留特別許可) on a single application through analysis of past grants.

The weeks before a disposition is decided may look quiet from outside. In reality, the material assembled and the conversations held in that time shape everything that follows. Let us begin with what can be done, and take it in order. Please note that this article is general commentary only; for your own situation, speak to a lawyer directly. Past matters turned on their own particular facts, and they are not a guarantee of a similar outcome.

This article reflects the law as at August 2026.

About the author

Daisuke Matsumura, Attorney at Law
Dai-Ichi Tokyo Bar Association (registration no. 59077, admitted 2019)
Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)
Practice focused on criminal defence for foreign nationals and immigration proceedings.
Results include an acquittal in a Stimulants Control Act case (possession for the purpose of profit), non-prosecution in organised fraud cases, and special permission to stay in cases regarded as difficult.

Funado International Law Office
Website: https://matsumura-lawoffice.jp/
WeChat ID: matsumura1119