Foreword  Part I  Part II  Part III  Part IV Part V Part VI Part VII Part VIII  Part IX Part X  Part XI Part XII Part XIII

Jurisdiction of the British Military Courts
Definition of "War Crime" in the Royal Warrant
Convening of a Military Court
Composition of the Military Court
Mixed Inter-Allied Military Courts
The Judge Advocate
Representation by Counsel
Appeal and Confirmation
The Authority of Decision of Military Courts

Rules of Evidence and Procedure
Questions of Evidence Arising in the Trial

The Admissibility of Affidavit Evidence
The Use of Films as Evidence
A Map of Belsen Used as Evidence
Admissibility of Affidavits Made by one of the Accused
Admissibility of Affidavits Made by an Accused While in Custody

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PART II.-NOTES ON THE CASE

A. INTRODUCTION : THE ROYAL WARRANT OF JUNE 14^TH, 1945

1. Jurisdiction of the British Military Courts

The jurisdiction of British Military Courts for the trial of war criminals is based on the Royal Warrant dated 14^th June, 1945, Army Order 81/45, with amendments. The Royal Warrant states that His Majesty " deems it expedient to make provision for the trial and punishment of violations of the laws and usages of war " committed during any war " in which he has been or may be engaged at any time after the 2^nd September 1939." It is His Majesty’s " will and pleasure " that " the custody, trial and punishment of persons charged with such violation of the laws and usages of war " shall be governed by the Regulations attached to the Warrant. 

The Royal Warrant is based on the Royal Prerogative which, in English law, is " nothing else than the residue of arbitrary authority which at any given time is legally left in the hands of the Crown " (Dicey’s definition).

The constitutionality and legality of the Royal Warrant and of its individual provisions have so far not been challenged in any British Superior Court as have its American counterparts, the orders of the American executive authorities appointing Military Commissions for the trial of war criminals under the law of the United States. The latter have been reviewed by the Supreme Court of the United States in the so-called Saboteur Case, Ex parte Quirin and others (1942) and in the cases In re Yamashita (1946) and In re Homma (1946). (Footnote: See pp. 30-31, 77, 78, 79, 105, 110, 111, 113, 120 and 121 of Volume I of this series)

Provisions similar to those contained in the Royal Warrant have been made in the Commonwealth of Australia by an Act of Parliament (War Crimes Act, 1945, No. 48/1945), and in the Dominion of Canada by an Order in Council, made under the authority of the War Measures Act of Canada, and entitled The War Crimes Regulations (Canada) (P.C. 5831 of 30^th August, 1945 ; Vol. III, No. 10, Canadian War Orders and Regulations). The Canadian Regulations were given statutory form by an Act respecting War Crimes, of 31^st August, 1946.

2. Definition of" War Crime " in the Royal Warrant

Regulation 1 of the Royal Warrant provides that " war crime " means a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2^nd September, 1939. The jurisdiction of the British Military Courts, as far as the scope of the crimes subject to their jurisdiction is concerned, is narrower than the jurisdiction of, e.g., the International Military Tribunal established by the Four Power Agreement of 8^th August, 1945, which, according to Article 6 of its Charter, had jurisdiction not only over violations of the laws and customs of war [Art. 6 (b)] but also over what the Charter called " crimes against peace " and " crimes against humanity " [Art. 6 (a) and (c)].

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3. Convening of a Military Court

Regulation 2 of the Royal Warrant gives to certain Senior Officers power to convene Military Courts for the trial of persons charged with having committed war crimes. The accused is not entitled to object to the President or any member of the Court or the Judge Advocate, or to offer any special plea to the jurisdiction of the Court. (Regulation 6).

During the discussion of the question of securing an additional Defence Counsel to plead in the Belsen Trial on behalf of all the accused, the Judge Advocate quoted the marginal note to Rule of Procedure 32 (Objection by Accused to charge) and added that to Rule of Procedure 34, which provided for another type of objection, there was the marginal note Special Plea to the Jurisdiction. These last five words were also used in Regulation 6 of the Royal Warrant.

There seemed then to be some force in the argument put forward by the Defence and adopted by the Prosecution, that the Defence could attack the charge, but not the jurisdiction of the Court to try war crimes.

4. Composition of the Military Court

Regulation 5 of the Royal Warrant provides that a Military Court shall consist of not less than two officers in addition to the President. If the accused is an officer of an enemy or ex-enemy Power, the Convening Officer should, so far as practicable, appoint or detail as many officers as possible of equal or superior relative rank to the accused. He is, however, under no obligation so to do. If the accused belongs to the naval or air force of an enemy or ex-enemy Power, the Convening Officer should appoint or detail, if available, at least one naval officer or one air force officer as a member of the Court, as the case may be.

It was under this last provision that naval officers were appointed to sit on the bench, inter alia, in the Peleus and the Scuttled U-Boats Cases. (Footnote 1: See pp. 1-21 and 55-70 of Volume I of this series)

5. Mixed Inter-Allied Military Courts

Further, under Regulation 5, the Convening Officer may, in a case where he considers it desirable so to do, appoint as a member of the Court, but not as President, one or more officers of an Allied Force serving under his command or placed at his disposal for the purpose, provided that the number of such officers so appointed shall not comprise more than half the members of the Court, excluding the President. It is left to the discretion of the Convening Officer to appoint or not to appoint Allied officers as members of the Court.

In law, a mixed Court constituted under Regulation 5, remains, of course, a British municipal court. 

In the Peleus case and in the Almelo case, (Footnote 2: Ibid, pp. 35-45) Greek and Dutch officers respectively were appointed to serve on the Military Court ; in the first case because a Greek ship and 18 Greek nationals were involved as the victims of the crime ; in the second case because the crime had been committed on Dutch territory and one of the victims was a Netherlands national. In other cases, where the number of Allied nations involved was obviously

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too large, as e.g., in the concentration camp cases, including the Belsen Trial, no allied officers were appointed. In many cases, official observers from all nations interested were invited to attend. Thus the following nations sent representatives to attend the Belsen Trial : Czechoslovakia, Denmark, France, Luxembourg, Greece, Poland, Russia, Yugoslavia and Holland. The Jewish World Congress was also represented. That the appointment of Allied members of the Military Courts is not compulsory is strikingly demonstrated by the trial by a British Military Court at Singapore of W/O Tomono Shimio of the Japanese Army. In that case the accused was charged, found guilty and sentenced to death by hanging, by a Court consisting of British officers only, for having unlawfully killed American prisoners of war at Saigon, French Indo-China. The locus delicti commissi was French territory, the victims were United States nationals.

6. The Judge Advocate

A Judge Advocate may be deputed to assist a British Military Court by the Judge Advocate General of the Forces or in default of such deputation may be appointed by the officer convening the court. The duties of the Judge Advocate, according to Rule 103 of the Rules of Procedure, an Order in Council (S.R. & 0. 989/1926 as amended) promulgated under the authority of Section 70 of the Army Act, (Footnote: As to the relevance of the Rules of Procedure, see p. 130. Rule 103 is among those made applicable to Field General Courts Martial, " so far as practicable," by Rule 121) consist mainly in advising the Court on matters of substantive and procedural law. He must also, unless both he and the Court think it unnecessary, sum up the evidence before the Court deliberates on its findings. Paragraph (h) of Rule 103 lays down that " In fulfilling his duties the Judge Advocate will be careful to maintain an entirely impartial position ". The Judge Advocate has no voting powers. The members of the court are judges of law and fact and consequently the Judge Advocate’s advice need not be accepted by them.

If no Judge Advocate is appointed the Convening Officer must appoint at least one officer having legal qualifications as President or as member of the Court, unless, in his opinion, no such officer is necessary (Rule of Procedure 103 and Regulation 5 of the Royal Warrant, as amended). Since the Legal Member, unlike the Judge Advocate, is a member of the Court, he has the right to vote.

7. Representation by Counsel

Regulation 7 provides that Counsel may appear on behalf of the Prosecutor and accused in like manner as if the Military Court were a General Court Martial. The appropriate provisions of the Rules of Procedure, 1926, apply accordingly.

Rule 88 provides that Counsel shall be allowed to appear on behalf of the Prosecutor and accused at General and District Courts Martial,

(1) when held in the United Kingdom ; and

(2) when held elsewhere than in the United Kingdom, if the Army Council or the Convening Officer declares that it is expedient to allow the appearance of Counsel.

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The Rules of Procedure, 1926, provide that English and Northern Irish barristers-at-law and Solicitors, Scottish Advocates or Law Agents, and the corresponding members of the legal profession in other British territories, are qualified to appear before a Court Martial.

Regulation 7 of the Royal Warrant provides that, in addition to these persons qualified in British law, any person qualified to appear before the Courts of the country of the accused, and any person approved by the Convening Officer of the Court, shall be deemed to be properly qualified as Counsel for the Defence.

In practice accused persons tried as war criminals are defended either by advocates of their own nationality or by British serving officers appointed by the Convening Officer, who may or may not be lawyers. In the Belsen Trial all the Defence Counsel were British or Polish serving officers.

8. Appeal and Confirmation

No right of appeal in the ordinary sense of that word exists against the decision of a Military Court. The accused may, however, within 48 hours give notice of his intention to submit a petition to the Confirming Officer against the finding or the sentence or both. The petition must be submitted within 14 days. If it is against the finding it shall be referred by the Confirming Officer to the Judge Advocate General or to his deputy. The finding and any sentence which the Court had jurisdiction to pass, if confirmed, are valid, notwithstanding any deviation from the Regulations or the Rules of Procedure or any defect or objection, technical or other. An exception exists only in the case where it appears that a substantial miscarriage of justice has actually occurred.

No action has yet been taken. before British civil courts similar to that taken in the United States in the Quirin, Yamashita and Homma cases, where the proceedings of United States Military Commissions were made the subject of judicial review. (See paragraph 1 supra).

9. The Authority of Decisions of Military Courts

The Military Courts are not superior courts and their decisions are therefore not endowed with that special binding authority which Anglo-American law attaches to judicial decisions as precedents. Their relevance for the development of International Law may rather be compared with the relevance of judicial decisions in countries whose legal systems are not based on the Anglo-American doctrine of the binding character of precedents. Although the findings and sentences of British Military Courts trying war criminals do not lay down rules of law in an authoritative way, they are declaratory of the state of the law and illustrative of actual state practice.

B. RULES OF EVIDENCE AND PROCEDURE

The Royal Warrant provides in Regulation 3 that, except in so far as therein otherwise provided, the Rules of Procedure applicable in a Field General Court Martial of the British Army shall be applied so far as applicable to the Military Courts for the trial of war criminals. These rules are contained.

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in the British Army Act and the Rules of Procedure made under the Act by an Order in Council, the latter being a piece of delegated legislation enacted by the Executive in 1926 (S.R. & 0. 989/1926).

According to Section 128 of the Army Act, the rules of evidence of a British Court Martial are the rules applicable in English civil courts. By " civil courts " is meant courts of ordinary criminal jurisdiction in England, including courts of summary jurisdiction. This provision is made applicable, " so far as practicable ", to Field General Courts Martial by Rules of Procedure 73 and 121. Rule of Procedure 122(A) states that " practicable ", as used in the Rules, signifies " practicable having due regard to the public service ".

The rules of civil courts in England and, under the provisions quoted above, also of British Military Courts, differ in certain respects from the rules of procedure under which courts of continental countries exercise jurisdiction. One of the main differences is that in English courts the accused is allowed, if he so chooses, to give evidence on his own behalf as a witness under oath. The reported cases provide numerous instances of this and the Dreierwalde trial  (Footnote: See pp. 81-87 of Volume I of this series) may be taken as an example. There, the Judge Advocate, following the usual practice, told Amberger that, should he decide to give evidence on oath, he would be sworn and would no doubt be questioned to find whether his words were true. Should he decide not to do so, it would be permissible instead for him simply to make a statement, and in such a case his words could not be questioned as to their truth. In either event, his Counsel would be able to address the Court and call any witnesses, but, the Judge Advocate pointed out, if Amberger decided to take the latter course, so that his story could not be tested by questioning, it would not carry the same weight as would the former. The accused decided to give evidence on oath. Both the Defending Counsel and the Judge Advocate subsequently pointed out to the Court that the evidence on oath which he gave must be treated in the same way as that of any of the other witnesses. 

There are, of course, also differences in the way in which witnesses are examined, on the one hand in the law of most Continental countries, where it is the President of the Court who primarily directs the examination, and on the other hand in English law, where it is mainly the responsibility of Counsel for the Prosecution and for the Defence to examine the witnesses " in chief ", to cross-examine and to re-examine them.

In the interest of the reliability of the fact-finding of the Court, English procedure, very similar to most continental codes of procedure, excludes certain types of evidence, e.g. written statements in circumstances where the person can be examined viva voce.

In view of the special character of the war crimes trials and the many technical difficulties involved, the Royal Warrant has introduced a certain relaxation of the rules of evidence otherwise applied in English Courts. Thus Regulation 8 (i) runs as follows :

" At any hearing before a Military Court convened under these Regulations the Court may take into consideration any oral statement or any document appearing on the face of it to be authentic, provided

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the statement or document appears to the Court to be of assistance in proving or disproving the charge, notwithstanding that such statement or document would not be admissible as evidence in proceedings before a Field General Court Martial, and without prejudice to the generality of the foregoing in particular :-

(a) If any witness is dead or is unable to attend or to give evidence or is, in the opinion of the Court, unable so to attend without undue delay, the Court may receive secondary evidence of statements made by or attributable to such witness ;

(b) any document purporting to have been signed or issued officially by any member of any Allied or enemy force or by any official or agency of any Allied, neutral or enemy government, shall be admissible as evidence without proof of the issue or signature thereof ;

(c) the Court may receive as evidence of the facts therein stated any report of the " Comité International de la Croix Rouge " or by any representative thereof, by any member of the medical profession or of any medical service, by any person acting as a " man of confidence " (homme de confiance), or by any other person whom the Court may consider was acting in the course of his duty when making the report ;

(d) the Court may receive as evidence of the facts therein stated any depositions or any record of any military Court of Inquiry or (any Summary) of any examination made by any officer detailed for the purpose by any military authority ;

(e) the Court may receive as evidence of the facts therein stated any diary, letter or other document appearing to contain information relating to the charge ;

(f) if any original document cannot be produced or, in the opinion of the Court, cannot be produced without undue delay, a copy of such document or other secondary evidence of its contents may be received in evidence.

It shall be the duty of the Court to judge of the weight to be attached to any evidence given in pursuance of this Regulation which would not otherwise be admissible."

C. QUESTIONS OF EVIDENCE ARISING IN THE TRIAL

During the course of the trial, a number of disputes arose as to the scope of Regulation 8 (i). These discussions are summarised in the following paragraphs. Comment is also made on some other applications of Regulation 8 (i), and on two further topics : Group Criminality and the Scope of Regulation 8 (ii), and the admissibility of evidence of offences committed outside Auschwitz and Belsen.

1. The Admissibility of Affidavit Evidence

In his opening Speech, the Prosecutor pointed out that although the trial was held under British law, the Regulations had made certain alterations in the laws of evidence for the obvious reason that otherwise many people.

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would be bound to escape justice because of movements of witnesses. A number of affidavits had been taken from ex-prisoners from Belsen, but many of the deponents had since disappeared. Therefore the Prosecution would call all the witnesses available and would then put the affidavits before the Court and ask for the evidence contained therein to be accepted. 

On 3^rd October, 1945, the Judge Advocate asked the Prosecutor what he relied on in putting in the affidavits. The Prosecutor replied that he relied on Regulation 8 (i).

The Judge Advocate asked whether Regulation 8 (i) (a) was not intended to be read, at any rate so far as an affidavit was concerned, to the effect that the Court had first to be satisfied that the witness was dead, or was unable to attend or to give evidence or was, in the opinion of the Court, unable to attend without undue delay.

The Prosecutor replied that the general introductory provision of Regulation 8 (i) made paragraph (a) academic by stating that Regulation 8 (i) (a) was " without prejudice to the generality of the foregoing." To the question whether the Prosecutor took the view that, even if there was a witness in the flesh who could be obtained, the Prosecutor would still be inclined to rely on the affidavits, the Prosecutor replied that technically he should take that view. It would, of course, be a matter for the Court to decide whether they considered that the statement or document appeared to be of assistance. 

The Judge Advocate advised the Court that the regulation was so wide that the Prosecution’s view of it was a correct one.

Captain Phillips then objected to the use of affidavit evidence, which would generally not be admissible before a Court. It was, he said, only admissible, if at all, as a result of Regulation 8 (i), and that Regulation, in his submission, was merely permissive. It said that the Court might take into consideration certain types of evidence. The objection of the Defence was that this was not a case in which the Court should receive such evidence. The Defence did not say that the Court could not do so, but they said that the Court had a discretion and that it should exercise its discretion here in favour of the Defence by refusing to accept the evidence. The whole of the evidence contained in these affidavits was, in the submission of the Defence, completely unreliable, thoroughly slipshod and incompetent.

The Judge Advocate said that it was entirely a matter for the Court’s discretion whether they accepted this evidence or not. It was for the Court to consider what weight should be attached to any affidavit. In his view, all these exhibits would be admissible in evidence, but what was left for the Court to decide was how much weight they would attach to any particular document, having heard the whole of the circumstances and having considered it in the light of other evidence.

The Court decided that they would receive in evidence the affidavits tendered by the Prosecution. They added, however, that when they came to decide what weight should be attached to any particular affidavit, they would bear in mind any observation which the Defence might address to them..

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On 19^th September, 1945, the affidavit of Colonel Johnston was tendered by the Prosecutor. One of the Defending Officers objected to three paragraphs of the affidavit on the ground that they contained merely comment on points which it was the Court’s duty to decide. A difficulty arose from the fact that the Court must know what was in a paragraph in order to decide whether to admit it or not. The Prosecutor pointed out that this was inevitably so in a system of Courts Martial, under which the Court was judge both of law and of fact. The Court must, in fact read themselves, or have read to them, the paragraphs in order that they might consider the legal point ; then they must do the impossible and say " we refuse to allow this to be put before us and, in our capacity of judges of fact, we will ignore them, although in our capacity of judges of law we must consider them first." 

One of the paragraphs objected to was left out on the advice of the Judge Advocate, who remarked that the deponent was going rather outside his province. As to the two remaining paragraphs, the Court decided that the words " In short such orders and the carrying out of such orders was mass murder " and a reference to " accomplices in mass murder " should not be put in.

During the hearing of the evidence for the defence, the question arose whether, at that stage of the trial, affidavits made by witnesses who had been heard by the Court in person could be put in, in order to show the unreliability not of the witnesses involved but of the affidavits as a whole, all of them having been produced by the same War Crimes Investigation Unit. 

The Defence argued that it was essential, in the present case, where the evidence for the Prosecution was largely documentary, for the Defence to be able to challenge the whole system whereby that documentary evidence was produced by pointing out discrepancies between what witnesses had said in Court and what they had said in written statements not yet entered as evidence.

This was opposed by the Prosecution on the ground that the examination and the cross-examination of the respective witnesses was the proper time to point out discrepancies between the affidavits and the oral evidence of witnesses and that if the defending officers had missed this opportunity, they could not submit the affidavit at a time when the witnesses had no opportunity of explaining the alleged discrepancy in the course of their cross-examination. 

The Court ruled that, if there were any witnesses who gave evidence in Court personally and were cross-examined in regard to affidavits that they had made, and if those affidavits were not put in as evidence, the Court would allow any Defending Officer to put in such affidavits during the course of his defence, for the purpose of establishing the manner in which these affidavits had been taken. 

On the other hand the Court felt that, in the case of witnesses who gave evidence in person and were not cross-examined in regard to their affidavits, the Court should not admit such affidavits, because they would carry no weight with them unless accompanied by a cross-examination of the witnesses so that the Court could appreciate exactly what their evidence would be in regard to the taking of the affidavits.

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On 20^th September, 1945, a film of the scenes which were found at Belsen was shown to the Court. Technically the film was an exhibit attached to an affidavit, made by members of the Army Film and Photographic Unit, stating that they photographed scenes at the camp, that they had seen the cinematographic film made from the negatives of the photographs taken  by them, and that the film negatives were copies of the film taken by them.

On the 13^th October, the Prosecutor applied for permission to show an official documentary film, made by the Soviet official photographers, of the concentration camp at Auschwitz, as part of the Prosecution’s case. Alternatively he suggested that the Court might call for it themselves, the Prosecution’s case having been closed. The film, which had only just been brought to his attention, was an official document of the Soviet Union and therefore admissible under Regulation 8.  (Footnote: Counsel was presumably relying on Regulation 8 (i) (b). (See p. 131)) In any case he could produce a certificate from the photographer. In law, a film had been held to be a document and capable of being a means of committing, not slander but libel. The Defence objected, alleging it to be a propaganda film that was not related in any way to any of the accused in the dock. It might not have been taken until long after they had all left the camp.

The Judge Advocate advised the Court that, provided they were satisfied as to the circumstances and the time of the taking of the film, then it was within the Court’s competence to receive it in evidence and to attach such weight to it as they might think fit.

The Court decided to see the film as a silent film with an official translator indicating in English to the Court relevant points which would help them to follow the position and the layout of the camp. The Court would treat this as evidence called by the Court.

On the 15^th October, an affidavit of one of the producers of the film was read, certifying that the film was an official documentary film prepared for the Union of Soviet Socialist Republics and published by them, that the filming took place at Auschwitz in Poland and that it was a true representation of the conditions there found. The filming began on the first day after liberation and was completed by the end of the investigation carried out by the Soviet War Crimes Commission. As the film was shown an interpreter made a commentary in English.

3. A Map of Belsen Used as Evidence

A second affidavit by Brigadier Glyn Hughes was tendered by the Prosecution during the hearing of the evidence for the Defence. In this he formally identified a plan of Belsen camp delivered to him by the army survey section ; this to the best of his knowledge and belief was a true representation of the camp before it was burnt down. Counsel on both sides considered the plan substantially accurate.

4. Admissibility of Affidavits Made by one of the Accused

On the 5;h October, objection was raised by Major Cranfield to the admission of an affidavit made by the accused Kopper. It was submitted

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that the affidavit was objectionable as evidence against any of the other accused.

Major Cranfield pointed out that while this affidavit was admissible under Regulation 8 of the Royal Warrant, (Footnote 1: see pp. 130-l) that provision was merely permissive. He called on the Court to reject the evidence as being completely worthless. The Prosecution’s own witnesses had called Kopper an informer and one who lied. In support of his argument he quoted a passage from page 94 of the Manual of Military Law governing the procedure followed in Courts Martial : " If the Prosecution find it necessary to call one suspected participator in a crime as a witness against the others the proper course is not to arraign him or, if he has been so arraigned, to offer no evidence and to take a verdict of acquittal." The reason was clear. The spectacle of one criminal turning on his fellow criminals to save his own skin was not one which was attractive to British justice.

The Prosecutor submitted that the meaning of the Regulation was that the Court could admit evidence that would not otherwise be admitted, but that if they found that they might accept it then they must accept it, subject to such weight as they might attach to it afterwards. The Court had not a discretion to say : " All this evidence is legal and we will accept this part and reject that part." The case came within a specific category mentioned under Regulation 8 (i). Any deposition, any summary, or any examination made by any officer detailed for the purpose by any military authority was included, and the Court had heard that Major Champion and Major Smallwood were in fact both detailed. Regulation 8 (ii) (Footnote 2: see p. 138)  rendered it permissible to enter evidence by one accused against another. 

Replying, Major Cranfield said that in his view the object of Regulation 8 (ii) was to introduce into the law of procedure governing the Court the proposition that, if one of the accused were proved a member of a unit, then evidence against another member of that unit would be evidence against the accused, merely because he was a member of the unit. Regulation 8 (ii) did not render the affidavit admissible.

After quoting Regulation 8 (i) the Judge Advocate said that he saw no reason in law why the Court should reject this affidavit. They would have to read the document and then say whether they were satisfied that it appeared to be an authentic document on the face of it. They must then say whether it was a document which would help in proving or disproving the charges. 

The Court decided that the document would be admitted, while reserving the right to judge what weight to place on it.

On the 5^th October, Major Cranfield also objected to certain affidavits made by the accused Irma Grese because at the time the statements were taken the deponent was in custody. The Defence referred to paragraph 78 (3) of Chapter VI of the Manual of Military Law, which said that persons in custody should not be questioned without the usual caution being first administered.

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The Defence made the point that the Prosecution could not put in those affidavits under Regulation 8. The Royal Warrant should, in case of doubt, be construed strictly against the Crown. It should be construed according to its meaning as appeared from its terms, No generality of words, however wide, should operate to embrace something which did not appear to be intended.

Counsel distinguished this question from that involving Kopper. The statement made by Kopper was a statement of evidence against other persons. The statements made by Grese were a confession and admission of the deponent herself. Counsel made a distinction between confessions and evidence. In his submission it was significant that nowhere in the Regulations was there any mention of a confession or an admission by an accused person. The intention of Regulation 8 was to enable the Court to hear secondary evidence in lieu of primary evidence. The Defending Officer referred to Regulation 3 of the Royal Warrant, detailing those sections of the Army Act and those Rules of Procedure which were not to apply to Military Courts. Rule of Procedure 4, stipulating that the usual caution shall be administered, was not so excluded by the Royal Warrant. Unless the evidence stated that Rule of Procedure 4 had been complied with, the Court could not hold that the documents appeared " on the face of it to be authentic " within the meaning of Regulation 8. (Footnote: Rule 4 is among those made applicable to Field General Courts Martial, " so far as practicable," by Rule 121)

The Prosecutor replied that the provisions regarding the cautioning of accused had no application in Military Courts. It was not necessary for the Prosecution to satisfy the Court that Grese’s were voluntary statements. The Royal Warrant was drawn up with the deliberate intention of avoiding legal arguments as to whether evidence was admissible or not. They were drawn widely to admit any evidence whatsoever and to leave the Court to attach what weight they thought fit to it when they had heard it. By " authentic-tic " was signified " genuine ".

The Judge Advocate said that the affidavits were not, in his view, analogous in any way to the statements or documents which came under Rule of Procedure 4 in the case of a Field General Court Martial.

He advised the Court to accept the Grese affidavits as documents within the meaning of Regulation 8 (i). Even if they were taken in such a way that they would not be accepted as a confession or document at a Field General Court-Martial, that circumstance would not help the Defence, because in Regulation 8 (i) there were the words " notwithstanding that such documents would not be admissible as evidence in proceedings before a Field General Court Martial ". This would not prevent the Defence from attacking the weight of the documents as evidence.

The Court overruled the submission of the Defence and admitted the documents. It would be open to the Defence to attack. their weight. 

Paragraph (E) of Rule of Procedure 4, to which reference was made, states that, during the preliminary investigation of a charge, " After all the evidence against the accused has been given, the accused will be asked : ‘Do you wish to make any statement or to give evidence upon oath ? You 

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are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing, and may be given in evidence ‘. Any statement or evidence of the accused will be taken down, but he will not be cross-examined upon it ". . 

" If the accused is remanded for trial by court martial, no evidence will be admitted at his trial of any statement which he may have made, or evidence which he may have given, at the taking of the summary of evidence before such caution was addressed to him."

In the course of the trial of Eberhard Schoengrath and six others the Defence objected to the admission of statements made by five of the accused, on the grounds that, according to the affidavit of their interrogator, no caution had been administered to the accused, and that the statements were therefore made inadmissible by Rule 4(E).

The Legal Member, however’, advised the Court that it was empowered to receive a statement even though a caution was not administered, provided the Court was satisfied that the statement was made voluntarily. It had been established by long precedent during war crime trials that the regulation which said that the Court might receive oral statements and documents appearing on the face of them to be authentic and would attach such weight to them as it thought fit was to be accepted as relating to affidavits and statements made by an accused. An abstract of evidence was quite different from a summary of evidence. When a summary was taken the accused must be present and must have the opportunity of cross-examining any of the witnesses. He continued : " That is all ruled out by the Royal Warrant. An abstract of evidence is merely supplying you with anything in the nature of evidence which the Prosecution propose to produce."

The rights of one accused before a Court Martial to which the Legal Member made reference are those contained in paragraphs (C) and (D) of Rule 4, which deal with the procedure to be followed where a case is adjourned by the commanding officer " for the purpose of having the evidence reduced to writing ", a process referred to in Rule 4 and in the marginal note to the Rule as adjournment for taking down the summary of evidence. These paragraphs read as follows :

" (c) Where the case is so adjourned, at the adjourned hearing the evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing in the presence of the accused before the commanding officer or such officer as he directs.

" (D) The accused may put questions in cross-examination to any witness, and the questions with the answers shall be added in writing to the evidence taken down."

Regulation 4 of the Royal Warrant, however, provides that :

" The commanding officer of the unit having charge of the accused shall be deemed to be the commanding officer of the accused for the purposes of all matters preliminary and relating to trial and punishments.   . . . He shall without any such preliminary hearing as is

p.138

referred to in Rule of Procedure 3 either cause a Summary of Evidence to be taken in accordance with Rule of Procedure 4 or an abstract of evidence to be prepared as the Convening Officer may direct. The accused shall not have the right of having a Summary taken or of demanding that the evidence at the Summary shall be taken on oath or that any witness shall attend for cross-examination at the taking of the Summary. "

For the trial of Eberhard Schoengrath and six others, as for the Belsen trial, an abstract of evidence had been prepared, and not a Summary of Evidence. In both cases, the submission of the Defence was over ruled. 

The result seems to be that, while in practice the Court will always ascertain whether or not a statement is made voluntarily in order to assess its evidential value, the Defence cannot prevent its being put in as evidence by denying its voluntary nature, but may attack its weight.