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| Request for Charges to
be Heard Separately |
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and B is also
charged with obtaining money by false pretences, both in the same town and on
the same day but no connection between them, no joint action, it would, in our
submission, be wrong that those two people should be tried together, at the
same time on those two separate offences, inasmuch as in the eyes of the jury
or Court the evidence against B would tend to prejudice A, and vice versa. We
therefore submit that here there is no justification in joining the two
charges, Belsen and Auschwitz, in the case of those who were only at Belsen and
were never at Auschwitz, because between the two there is no nexus or
connection at all; they merely have this in common, that they were both
concentration camps administered by Germans. We say that there is no connection
between the two charges other than the slight similarity that they both relate
to matters in concentration camps, and my point is that in the absence of
special provision that would be obviously no justification for the two charges
to be joined together. The question therefore arises: is there in this case any
special provision which does justify what would otherwise be improper? In our
submission the answer is that there are only two possible heads under which
this may be justified, Regulation 8 and Rule of Procedure 16.
Rule of
Procedure 16, which provides for joint trials, reads as follows: “Any
number of accused persons may be charged jointly and tried together for an
offence alleged to have been committed by them collectively; where so charged
any one or more of such persons may at the same time be charged and tried for
any other offence alleged to have been committed by him or them individually or
collectively, provided that all the said offences are founded on the same facts
or are part of a series of offences of the same or a similar character.”
In our submission that rule does not in this case justify a joinder of the two
charges, and we say that while there is a certain similarity between the
subject matter of the two charges there is between them nothing in the nature
of a series; all they have in common is this slight surface similarity of them
both being concentration camps administered by Germans. These accused on whose
behalf I am speaking at the moment were never at Auschwitz, they never had any
connection with the place at all, and if they are to be tried at the same time
as the others who were at Auschwitz they will undeniably be prejudiced by the
volume of evidence about Auschwitz which will be admitted and which will be
irrelevant in their case.
Regulation 8 says, “Where there is
evidence that the war crime has been the result of concerted action upon the
part of a unit or group of men . . . .” That does imply that there is such
prima facie evidence arising out of the summary of evidence or, its equivalent
as will justify the Court in coming to the conclusion that there has been a
unit or group and |
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