30 Nov. 45

was quoted quite inaccurately. In the summary submitted by defense counsel, it is pointed out that the mental condition of the Defendant Hess does not permit him to defend himself, to reply to the witnesses or to understand all the details of the evidence. This is contrary to the decision submitted by the experts in their statement. The final conclusion of the experts definitely states that his loss of memory would not entirely prevent him from understanding the trial; it would, however, make it impossible for him to defend himself and to remember particulars of the past. I consider that these particulars, which Hess is unable to remember' would not unduly interest the Tribunal. The most important point is that emphasized by the experts in their decision, a point which they themselves never doubted and which, incidentally, was never doubted by Hess' defense counsel, namely-that Hess is sane; and in that case Hess comes under the jurisdiction of the International Tribunal. On the basis of these facts I consider that the application of the Defense should be denied as being unsubstantiated.

SIR DAVID MAXWELL-FYFE: May it please the Tribunal, it has been suggested that I might say just a word, and as shortly as the Tribunal desires, as to the legal conceptions which govern the position with which the Tribunal and this defendant are placed at the present time. The question before the Tribunal is whether this defendant is able to plead to the Indictment and should be tried at the present time.

If I might very briefly refer the Tribunal to the short passages in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the order, which I have, the first report is that signed by the British doctors on the 19th November 1945. And in that report I beg the Tribunal to refer to Paragraph 3, in which the signatories say that at the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defense and to understand details of the past, which arise in evidence.

The next report is that signed by the American and French doctors, and in Paragraph 1, the Tribunal will see:

"We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past and will interfere with his undertaking his defense."