Thursday, June 21, 2001

Irving launches battle to overturn Holocaust libel ruling

By Joshua Rozenberg Legal Editor

DAVID IRVING, the author who was described by a High Court judge last year as an anti-Semite and a falsifier of history, sought permission yesterday to appeal against a ruling that he had not been libelled by an American academic.

During the libel trial, Mr Justice Gray decided that Prof Deborah Lipstadt had justified her assertion that Mr Irving was discredited as a historian because of his denial of the Holocaust. She was at a crowded Court of Appeal for the hearing that began yesterday, along with her publisher, Penguin Books.

They heard Mr Irving's counsel, Adrian Davies, argue that Mr Irving had not denied the Holocaust according to his definition of it. The author accepted that by 1943 the Nazis and their collaborators had decided to murder all the Jews in occupied Europe, although Mr Irving said this had not been so in 1941.

Mr Davies said the distortion of evidence was at the heart of the case against Mr Irving.

At the trial, the author was accused of basing his rejection of the existence of homicidal gas chambers at Auschwitz on a 1988 report by an American, Fred Leuchter. Mr Leuchter had removed samples of brick and concrete and concluded by analysing them that there had not been homicidal gas chambers there.

Prof Lipstadt and her publishers had said the Leuchter report was "bunk" but Mr Irving had ignored its "stupidities" because he wanted it to be true.

Mr Irving, who dismissed witness accounts of gassings as lies, argued at the trial that the broad trend of the document was substantially borne out by later reports. He said there were some gassings on a limited scale at the camp, but claimed that the chamber was used only for fumigation or as an air-raid shelter.

Mr Davies submitted that Mr Leuchter's report was "not such utter bunk" as had been suggested. "Even if, contrary to my primary submission, Leuchter is the most unutterable bunk with no merit whatsoever, even as a starting point for discussion, it is insufficient for the defendants to say that it's proof that David Irving distorts."

The fact that Mr Irving was enthusiastic about Mr Leuchter and wrote a foreword for his report, giving it general publicity, might show poor historiography.

"But just because someone attaches much too much weight to a document or goes off on a tangent about one particular piece of evidence, which on the face of it appeared to be impressive, that does not mean he is wilfully setting about falsifying history. It might just mean that he has rather poor judgment on that particular issue."

Early in the hearing, Lords Justices Pill, Mantell and Buxton frequently asked Mr Davies where he was suggesting that Mr Justice Gray had been in error.

Their attempts to understand Mr Davies's case were not helped by his failure to give them written notice of some of his arguments. Counsel said he had received certain instructions and papers from Mr Irving at the last moment.

Richard Rampton, QC, for Penguin and Prof Lipstadt, said he had not seen documents which Mr Davies wanted to put in evidence.

Mr Davies said he would argue that the judge's findings on specific issues were wrong as a matter of history or that Mr Irving had come to a reasonable alternative position on some issues.

The hearing was adjourned to today.