THE PRESIDENT: And does not relate to his memory at that time.
SIR DAVID MAXWELL-FYFE: That is, I respectfully agree with Your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence has not got a memory as to what happened at the time. That, of course, is entirely a different question which does not arise either on these reports or on this application as to what was the defendant’s state of mind when the acts were committed. No one here suggests that the defendant’s state of mind when the action charged was committed was abnormal, and it does not come into this case.
THE PRESIDENT: He will, it seems to me, be able to put forward his amnesia as part of his defense.
SIR DAVID MAXWELL-FYFE: Certainly, My Lord.
THE PRESIDENT: And to say, “I should have been able to make a better defense if I had been able to remember what took place at the time.”
SIR DAVID MAXWELL-FYFE: Yes, My Lord. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, “Because of the accident my memory is not good or fails as to the acts charged.” That should not, and no one has ever suggested that it could, be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.
THE TRIBUNAL (Mr. Biddle): Sir David, so I can understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defense, is it not?
SIR DAVID MAXWELL-FYFE: With the greatest respect, you have got to read that with the preceding words, which limit it. They say, “Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense.”
THE TRIBUNAL: (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defense under the procedure of the trial if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane—now I quote that he did not understand, or rather:
“His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defense, and understand details of the past. . . .”