As the day of the trial approached, Martin Bormann, although named as a defendant in the Indictment, had not yet been apprehended despite the efforts of numerous special investigators. On 17 November 1945 the Tribunal requested the views of the prosecution on the question of trial in absentia. Sir David Maxwell-Fyfe, Deputy Chief Prosecutor of Great Britain, reviewed the information available and, on behalf of the United States and France as well as Great Britain, stated that: “The prosecution cannot say that the matter is beyond a probability that Bormann is dead. There is still the clear possibility that he is alive.” Notice had been publicly given, in the manner prescribed by the Tribunal, that Bormann had been named a defendant, and it was therefore suggested that the case fell within Article 12 of the Charter authorizing trial in absentia. The Soviet representative expressed concurrence; whereupon Lord Justice Lawrence, presiding, orally announced the Tribunal’s ruling, on the same date:

Thereafter, the counsel named to defend Bormann moved for postponement of the proceedings against the defendant. The Tribunal announced on 22 November through Lord Justice Lawrence, presiding, that: