| THE JUDGE ADVOCATE - If any of the Defending Officers wish to make any application before the accused are asked to plead to the first charge, the Court will hear what you have to say.
Major CRANFIELD - I wish to make a application which, by agreement with all the defending officers, is made on behalf of all the accused. The application falls under two heads, and the first part arises out of Rule of Procedure 3 and is an objection that the charge does not disclose an offence. My application on that is that the right of the Defence to make such an objection should be reserved and that the trial should proceed without prejudice to the right to make the objection at a later stage. The second part of my application arises under Rule of Procedure 39. It is an application to the Court for assistance in the preparation of the defence.
On 7th September the Defence Officers, commenced work and on 10th September a conference was held by them. Subsequently a meeting was held which was attended by an officer from the J.A.G.’s Department and by the Staff Captain "A" of 43 Division. Certain requests for assistance were made by the Defending Officers and a letter was dispatched to 30 Corps District. The material requests were that the Defending Officers should be allowed to seek the services of a British and a Belgian expert on International Law, that the expense should be borne by the public, and that the Defence should be supplied with legal books, at the public expense, together with certain documents and publications material to the matter at issue.
The request for an expert on International Law has become one of the major points in the preparation of the defence. After a certain number of telephone conversations we have been told, first, that experts could not be brought from England and, later, that they could be brought; that is, the Rhine Army would provide passages, authorities and so forth, but the fees would have to be paid by the Defence. Unfortunately this last information was received too late for the Defending Officers' representative, who had already gone to London, to get a volunteer expert to come here without remuneration. We have had the assistance of a Major Woodhouse until yesterday when, we were informed, he had to leave. The Defence now apply for Professor Lauterpacht of Cambridge University, or, failing him, Professor Brierly of Oxford University, or, failing him, an English authority on International Law to be nominated by Professor Lauterpacht, to be dispatched here at the earliest opportunity to advise and assist the Defence on matters of International Law and, if required by us, to present an argument to the Court on behalf of the Defence on any, points of International Law, that arise.
The JUDGE ADVOCATE - Is it your point that you would like to attack the charge sheet but that you cannot do it until you have had expert advice?
Major CRANFIELD - Yes. We find ourselves in a considerable difficulty in that between us we have very little knowledge of International Law. It appears to us that there are some points on International Law which arise in this case and we do not know where we are because we have not sufficient knowledge to apply our minds to the points.
The JUDGE ADVOCATE - Are you putting up a plea under Rule of Procedure 32, but saying you would like to have that argued at a later stage in the proceedings when you are in a position to do it?
Major CRANFIELD - Yes.
The JUDGE ADVOCATE - The Rule says this: "The accused, when required to plead to any charge, may object to the charge on the grounds
that it does not disclose any offence under the Army Act" - or under the Regulations in this case - "and is not in accordance with the Regulations." It is a matter for the Court. It seems to me that the fair way of dealing with this matter is for the Court to take the evidence and to agree that the right of the Defence to make the objection should be preserved, but that they should be allowed to do it at the close of the case for the Prosecution.
(The Court confer.)
The JUDGE ADVOCATE - The Court are of the opinion that it is desirable to go on and hear the evidence now. They will preserve your right to object to the validity of this charge, or the other charge, or both, at some suitable time when you feel competent to deal with the argument in law. Can we clear the other matter up by leaving you to discuss it with the Prosecutor? If there are any difficulties and you think the President should be asked to intervene, you can make an application to the Court later. |