THE PRESIDENT: Yes, if the state of his knowledge is directly relevant to an issue.
SIR DAVID MAXWELL-FYFE: Yes, My Lord, that is the point here.
THE PRESIDENT: It is a form of expert evidence.
SIR DAVID MAXWELL-FYFE: My Lord, in a sense, it is not as Your Lordship says, in a form, it is not in a usual form, but it is the evidence of somebody who has special knowledge. My Lord, it is a well-known distinction, for example, in the laws of libel between the persons who have expert knowledge and the public at large; and, My Lord, the opinion of someone with a special knowledge of the facts must have probative value within Article 19 of the Charter. My Lord, if the provision that this Tribunal is not bound by the technical rules of evidence is to mean anything at all, I submit it should cover the expression of opinion on a point such as this; that is the ability to have knowledge, which is given by somebody who is in a special position to state such an opinion.
THE PRESIDENT: It is a very small point, Sir David, and we have got to decide the matter and form our own opinion about it; and this man isn’t here for the purpose of being cross-examined for anything of that sort.
SIR DAVID MAXWELL-FYFE: No, that is so, My Lord, but, of course that, with respect, cuts both ways. I mean here he gives an affidavit and part of it as the basis leads up to that conclusion. I should respectfully submit that that conclusion is a statement of fact—but, if Your Lordship says so, the time will come when we can ask Your Lordship to draw that conclusion as a matter of argument ourselves; but, My Lord, on the general position, the only reason that I have occupied even this much of the Tribunal’s time is that Article 19 is an important matter in the view of the Prosecution and, therefore, we have to argue against its being whittled down. It is the only reason that I’ve taken up the Tribunal’s time.
DR. SIEMERS: Mr. President, may I just draw your attention to one point. Sir David has just been mentioning the well-known legal difference. That is just what I want to base my argument on, the difference between facts and opinions. Here it is a question of opinion and please note the following sentence does even go further; there, the witness is coming to a legal opinion and he is stating who is responsible; therefore, he is passing some sort of judgment. Furthermore, I beg you to consider that this is quite a minor official who, after all, cannot possibly make statements of such portent to the effect that higher formations in Kiel and some other places in Germany—he is quite vague—had some sort of knowledge.
THE PRESIDENT: The Tribunal will adjourn.
SIR DAVID MAXWELL-FYFE: My Lord, before the Tribunal adjourn, might I make a correction and an apology? My Lord, I thought that a copy in German had been put to the witness yesterday—of this affidavit; and apparently it was a copy in English. The original affidavit was sent off on the 6th of May; it was verified over the telephone by Colonel Phillimore and it has not yet arrived. An English copy was sent and has been processed and the original will be put in as soon as it arrives. My Lord, I thought that we had got the original but apparently it has not yet arrived, but it is an English document put to the defendant.
THE PRESIDENT: Will you let Dr. Siemers see the original as soon as it arrives?