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| Request for Charges to be
Heard Separately |
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of cases in
which they all had some common interest? Not only were certain of the accused
never at Auschwitz, but certain of them did not even arrive in Belsen until
February, and some of them even as late as April of this year. Yet those are
the people who it is said may fitly be tried as having taken part in what is
called a series of offences. I do not deny for one moment that Auschwitz and
Belsen were similar; my point is that they could not properly be said to have
formed part of a series.
The JUDGE ADVOCATE — May it please the
Court. The application by the Defence is that it would not be right, that it
would bee embarrassing and improper, if you were to take the whole of the
evidence together which relates to these two charges, and if you were to try
the accused upon these two charges at one and the same time. There is an
application to sever these charges, that is to say, that this Court should
first of all deal with the first charge and that thereafter this or a different
Court should proceed to deal with the second charge. This is a matter entirely
for you. |
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| (The Court close and
confer.) |
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The JUDGE
ADVOCATE — Captain Phillips, the Court ask me to say that they are
indebted to you for a very clear and cogent argument and they have understood
it very thoroughly. They have considered it, but over-rule this application and
they will not sever the first charge from the second. That being so, the Court
will listen to anything more you want to say.
Captain PHILLIPS —
Having regard to your decision on the question of severing the trials, the
question of whether the defendants, the accused in this case, are correctly
joined together, in our submission depends upon the interpretation which the
Court gives to Regulation 8 of the Royal Warrant or the Regulations made under
the Royal Warrant. The first three lines of the first paragraph says,
“Where there is evidence that a war crime has been the result of concerted
action upon the part of a unit or group of men . . .” and then it goes on
to provide they may be tried jointly, and so on. Clearly, the Court cannot deal
with the matter fully until the case has been tried, so it must mean "Where
there is evidence on the face of the matter that the war crimes have been the
result of concerted action against a unit or group." In our submission unless
the Court is satisfied on prima facie evidence of concerted action there
is no reason why it should not hear an application for a separate trial.
The word “concert ” means to plan, to premeditate, or to
contrive, all of which words clearly imply a certain amount of common intention
or common action between various people. What evidence is there available at
this stage to the Court that what happened at Belsen and
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