June 20, 2001 (London)
1 of the Lipstadt appeal
8:15 a.m. Rolf Hochhuth phones again at
length, I ask him to phone again in a few
From 10:30 a.m. to 4:30 p.m. at the
Court of Appeal. Courtroom crowded with
forty or fifty people, including all the
expert witnesses from the trial -- Prof.
Richard Evans sits glowering and with
brazen effrontery among the others, no
doubt asking himself why we have seven
copies of his book
Hitler at the ready on our
counsels' table. Lipstadt's Marxist expert
on "right wing extremism" Professor Hajo
Funke comes trotting over to shake hands
with me and sich anbiedern; he asks if he
can come and see me privately this weekend
-- I strongly suspect he is an agent of
the Bundesverfassungsschutz; no doubt in
happier days he would have been a Stasi
agent. (hearing report: See below).
At 7:00 p.m. B. phones, how did it go?
Then M. . . An E-mail comes from
(a good friend in Los Angeles) who emails
me: "Any news when Van Pelt will be taking
the witness stand?" I reply to him: "I
suspect that he won't. As he left court
today a woman was heard (by M.) saying to
him, 'No need to be so upset, I am sure it
will be okay in the long run' -- i.e.
Adrian Davies has made some telling
attacks on his abilities. Slow start this
morning, much better in afternoon, two
judges cordial, jovial, one shrewd and
[My courtroom notes read as
COUNSEL Adrian Davies (for me)
began at 10.30 am by saying, "Considerably
to my own surprise I am appearing before
your Lordships." He quotes the advice of
Lord Staines not to whinge about
the Defendant's solicitors. On the
contrary, he has high praise for Messrs.
Davenport Lyons (for Penguin Books Ltd)
who have been put to great inconvenience
by the last-minute dismissal of our
solicitors for negligence.
This libel action was he says a case
which caused great emotion at the first
instance (January to April 2000), but the
issue which caused most emotion was
peripheral to the real issues. There were
large parts of the judgment by Mr.
Justice Gray which we, the Claimants,
wholeheartedly adopt. For example, we
adopt paragraphs 1.1 to 2.16 of the
The main charge is that Mr. Irving
falsifies history. Mr. Richard
Rampton QC (for Lipstadt) also says
that Mr. Irving is a liar, and that is the
charge which sticks. But in one major
aspect we differ from Mr. Justice Gray:
that is paragraph 2.4 of his Judgment. We
do not accept that the Defendants
justified the libel of "internment"; and
the libel about Hamas and Hizbollah which
is also particularly serious.
"The distortion of evidence" is at the
heart of this case. As for the Leuchter
Report, the nucleus is in the tables
of figures produced by the forensic
scientist Dr. Roth, and not in
Leuchter's assessment of them. At worst,
Irving can be accused of "poor judgment".
The question is, what evidence was
available to Mr. Irving at the time he
wrote his books. That is what matters.
Other material, like the Bletchley
intercepts only became available
this point, Lord Justice Buxton
makes the first of many interruptions in
the course of the appeal hearings. He
points out that Mr. Davies has not shown
that Mr. Justice Gray was not aware or
seized of these considerations at the
time. "It is not entirely clear that Mr.
Justice Gray was not seized of these
Then Mr. Davies sets out his reasoning.
One of Mr. Justice Gray's considerations
was based on the evidence of Professor
we shall show that Evans was biased in his
views and in his methods, which fact
destroys the "consensus" approach. Davies
says that if he can show that Mr. Irving
took reasonable position upon various
points, from Policeman Hoffmann
through to the Reichskristallnacht, then
we should win. He submits that Evans had
taken the view that it was unreasonable;
but that is not the libel. The libel is
that Mr. Irving did these things
deliberately. Mr. Justice Gray, possibly
honestly, had reached such a view.
Mr. Irving is "not a specialist
historian of the Holocaust". In short,
says Davies, "the conclusion was reached
for propaganda or other dishonest
purposes." He argues that
- (a) Mr. Justice Gray's findings
were wrong as a matter of history;
- (b) it was reasonable for Mr.
Irving to reach these conclusions
At 11.02 am Davies starts on paragraph
2.15, "What is the meaning of the
Holocaust?" Davies suggests, "The
Holocaust is the persecution and murder of
millions of Jews by the Nazis and their
collaborators." These outrages did not
have originally a systematic character.
But in 1943 Heinrich
Himmler set about killing all the
available Jews. He refers to Himmler's
speech in October 1943 in Posen. Many
Germans actively joined in the killing and
persecution. He mentions the Daniel
Goldhagen book. These things are not
disputed. But the system was not there in
the beginning. As the Germans moved into
Russia, the atrocities were carried out.
some point in June 1941 Himmler and
started the killing operations. It became
part of State policy, but only at
Himmler's level, not at Hitler's.
Lord Justice Mantell reminds
Davies that he has not yet found a respect
in which he disagrees with the Judgment.
Lord Justice Buxton chimes in, saying the
Judge made findings at paragraphs 13.93
and 13.96 and in what respect did Mr.
Justice Gray get it wrong? At the moment,
he says, Mr. Davies is addressing the
Court in general terms. Where specifically
did Mr. Justice Gray get it wrong?
Mr. Davies says he wishes to take
things in chronological order. He starts
with the need to define the words
Lord Justice Buxton objects that there
is no suggestion in our skeleton
argument that they misunderstood what
Davies argues: "Mr. Justice Gray should
not have taken Evan's definition of
Holocaust". It was for Mr. Justice Gray to
find what "Holocaust denier" means.
The presiding Judge, Lord Justice Pill:
"I understand you were giving a narrative
background. How briefly, before we get on
to specific points?"
Davies: "The definition is
Pill: But you have been giving us a
narrative. I haven't grasped your last
point up to October 1943. Davies says, "My
point is to find out if David Irving was a
Holocaust denier . . . but first you must
establish what is meant by the word
'Holocaust'. Secondly, did Mr. Irving deny
it? In no way did he do so." But by 1943
there was a State-ordered killing
programme at the Himmler level. "One
cannot be a Holocaust denier if one
publishes these facts".
At 11.18 am, Davies gets on to
Hizbollah and Hamas.
Pill: Again asks for a definition of
Holocaust. The whole area is a "moving
target." He deals with Points 1, 2, 3, 4
Lord Justice Mantell: "What is meant by
Holocaust does not come into it at all.
Even if the Defendants showed it was an
inaccurate definition, the Defendants have
to show that Irving lied or distorted the
evidence. The phrase 'Holocaust denier' is
meaningless, and not defamatory in
Mr. Davies raises a small matter of
law, then reverts to the Hizbollah
allegation, "a very serious libel".
Lipstadt's book implied that he condoned
the activities of terrorists, saying that
the Hizbollah and Hamas are seen as
grossly murderous, terrorist
organisations. Mr. Irving's reputation is
damaged, and the allegation exposes him to
violence by opponents of Hizbollah and
Hamas. But he makes a submission in
Lord Justice Pill refers to Section 5
of the Defamation Act, and how Mr. Justice
Gray deals with it in paragraph 2.15.
Mr. Davies continues by pointing out
that Mr. Irving succeeded on the Goebbels
diaries allegation, and that Mr. Irving
should also get damages in that
Lord Justice Pill asks: Doesn't
something further have to be established?
The motives alleged for the
11.43 am. Davies says: "I am now
prepared to deal with the specific
allegations going back to very early
days." He looks at Day
20 of the transcripts,
Page 202, dealing with the Policeman
Rampton interrupts to say that the
Court should look at paragraphs 5.20 to
5.25 of the Judgment. Hoffmann's
background, he now argues, was a
relatively minor point.
Lord Justice Pill already expresses
concern about the time issue. Lord Justice
Buxton says: "Mr. Irving was wrong in
saying that he had read all the
microfilms." The judges then asked what is
the application that Mr. Davies is making
in this respect.
Davies says, "To allow me to examine
Mr. Irving in chief on this question and
allow cross-examination." (This matter is
not, however, pressed further).
Lord Justice Pill says, "It is a very
difficult way to conduct an appeal."
At 12.05, the judges go into a huddle
to decide the application. Then invite Mr.
Davies to continue.
Mr. Davies now proceeds to deal with
the matter of SS General Kurt
Daluege. But Mr. Rampton is on his
feet, interrupting again, to say "Daluege
is not terribly important."
Lord Justice Pill says: "It is not for
Mr. Rampton to say what is important and
what is not."
Mr Davies says: "It is the drip-drip
effect." [Note: position on Daluege
reserved to put in writing.]
Lord Justice Pill invites Mr. Davies:
"Can't we hear your views on Prof.
Robert Van Pelt's expertise?" And
also on Mr. Irving's. Rampton is again on
his feet, protesting at the prospect of
Mr. Davies impugning his expert witnesses
without having given due notice.
Mr. Davies deals with Van Pelt. He has
already done so in paragraph 17 of his
argument, and he relies, he says, on
The Ikarian Reefer on the matter of
"Van Pelt isn't an expert on any
relevant issue on this case". There had
been no direction for the Expert Witness
evidence to be given of an Architect, an
Engineer and a Chemist. So Pelt should not
have been heard to give evidence on these
subjects. As if that were not bad enough,
says Mr. Davies, he gave evidence on gas
chambers, although he was "as entitled to
give evidence on gas chambers as a
fishmonger." Van Pelt had dealt with the
David Olère drawings. He was
allowed to authenticate them, as showing
the architecture of the crematoria, with
their bodies. As for the Leuchter report,
"Van Pelt was simply not qualified in any
way to comment on Leuchter."
Lord Mantell interrupted, and then Mr.
Rampton interrupted. Finally, Lord Justice
Buxton interrupted to ask for Mr. Davies's
comments on paragraph 13.79 of the
Judgment. Should this not have been put in
our Notice of Appeal? Lord Justice Mantell
agrees that it does seem "wrong for Mr.
Justice Gray to have accepted Van Pelt's,
but to have refused Germar
Rudolph's figures." He says that the
Leuchter Report is dated 1988, and it
would be wrong to criticise Mr. Irving if
the facts on which Rampton relies for it
came to light much later.==
After lunch, the Court resumes at 2.17
pm. Richard Rampton QC reserves his
position on the new documents that we wish
to introduce. The points are that Mr.
Irving has had legal representation since
May 2000 and he, Rampton, is surprised to
see the documents being put in like this
at the last minute. Lord Justice Pill said
that he would take each document on its
own merit. The argument is:-
- 1. That Mr. Justice Gray shouldn't
have come to the findings that he did;
- 2. That he did not logically
justify the findings.
Mr. Davies looks at paragraph 13.9,
stating that there are only 19 pieces of
evidence, not the 30 or 40 to which Mr.
Rampton had earlier today referred.
Rampton said that Hitler has been
described by Mr. Irving as "a friend of
the Jews". "This was ludicrous", says
Davies. Mr. Irving had said only that
Hitler was the only friend in power that
the Jews had. Mr. Irving had also put the
other side of the case. Mr. Justice Gray's
remark to the contrary is unsupported by
Lord Justice Pill asks, "What is the
link with your application?"
Davies explains, "Anybody saying
something like that would beyond the pale,
as a reputable historian."
Asked about this point, Mr. Rampton
points to the judgment, paragraph 5.7.
Adrian Davies objects, "That is a very
different thing from saying that Hitler
was a friend of the Jews."
Lord Justice Buxton puts it
differently. Encouraged, Mr. Rampton puts
to the Court the text from a 1980s speech
that Mr. Irving made to the IHR. Lord
Justice Pill summarises the position. Lord
Justice Buxton then tries to refine and
clarify the position.
says that Mr. Irving is criticised for
challenging evidence that Adolf Hitler was
not involved in the Reichskristallnacht,
but there is ample evidence that Irving
could reasonably come to that conclusion.
He notes that the 3:35 a.m. telex from
Herr Bartz, of the Gestapo, was
given only a one-word treatment by Mr.
whilst the Groscurth diary entry was not
referred to at all. Upon his showing them
the Groscurth diary page the Judges
protest that it is in German, and there is
no translation. Fortunately, Davies has
included a translation of the Bartz
telegram in his skeleton, and he now gives
very good summary on the case. Lord
Justice Pill again summarises for him.
Again, unhelpfully, Lord Justice Buxton
says: "Do you object to any of Mr. Justice
Gray's other findings on
Reichskristallnacht?" The accumulation of
evidence is against Mr. Irving, he
suggests, and Mr. Davies's remarks have
not been very destructive of the Judge's
Undeterred, Adrian Davies says, "That
is not quite the test in law of how this
Court should approach the conclusion."
Lord Justice Buxton is still sceptical,
and asks "what previous order" was
reversed by the Bartz telegram.
Lord Justice Buxton says that it is
plain Mr. Irving honestly holds the
opinion, but it is incumbent on the
historian to cite evidence on both sides.
What Mr. Justice Gray is saying is that
Irving cited only the evidence before
Adrian Davies says that Professor
Evans, in his expert witness report,
suppressed inconvenient documents like
Bartz telegram. Moreover, Mr. Irving has
been writing for a general public, not an
academic public. This is not the same as a
Judge who has to analyse the whole corpus
of evidence. Mr. Irving had to write an
enjoyable book and make a living by his
Lord Justice Pill says: "But it seems
to me that Mr. Justice Gray grasped that."
He then refers to the 1.20 a.m. telegram,
which Mr. Irving had, he said, got
completely wrong. Davies suggests that it
was not an important misconstruction.
Another telex later went out that night
with that very construction. So the "gist"
of Mr. Irving's account is correct.
Lord Justice Pill says it is a matter
of judgment. Mr. Justice Gray says in
effect that "a reputable historian" could
not have taken those views. He asks Mr.
Davies what approach he is going to say
that the Court should adopt to the verdict
of a Judge.
Adrian Davies says that these are
matters of law. Lord Justice Buxton is
particularly sceptical about the Bartz
telegram. He asks why it was not put to
Evans in cross-examination.
(I asked to instruct Davies,
and advise him that Mr. Evans and Mr.
Justice Gray had hastened me along, and
Davies makes the point very well.)
Lord Justice Buxton hints: "We need to
hear the Defendants' response to this
document". Adrian Davies agrees that it
renders it more difficult that Evans did
not address it. But the Court tries to do
its best even so.
Lord Justice Pill gets into a
complicated argument beginning, "If Mr.
Irving is right about the 2.56 a.m.
message..." And Mr. Davies makes the same
brief points as before.
At 3.55 p.m. Davies is looking at the
Judentransport document (November
30, 1941), and gets himself into
something of a mess. He doesn't seem to
have grasped the significance of the
various documents and arguments.
Lord Justice Mantell asks whether this
formed part of the Judgment.
Lord Justice Pill comments that Mr.
Justice Gray finds that Mr. Irving
misrepresented the document. And Lord
Justice Buxton asks, "Was the error
Richard Rampton correctly points out
that the error has not been changed in the
later, 1991, Avon Books Inc. edition of
Adrian Davies points out that when
licenses in books are sold to other
foreign publishers the author has little
or no opportunity to make changes. He
quoted the finding of Yehuda Bauer
on the Wannsee
Conference, where he said that it was
"silly" for anyone to say that the
decision was taken there to liquidate the
Jews. Davies suggests that Yehuda Bauer is
right and that Mr. Justice Gray is wrong.
Lord Justice Buxton asks, quite correctly,
what was discussed at the Wannsee
Conference at the trial. Adrian Davies
says, "very little", because it was
accepted by the Lipstadt book that the
Wannsee Conference had discussed the
liquidation. There had been no such
concession made at the trial, so Mr.
Justice Gray's words were findings caused
It was decided that we should make a
Submission on the Wannsee Conference
Adrian Davies concluded by making a
short submission, pointing to the words
frequently used in the Judgment about Mr.
Irving's arguments in court as being "not
without merit" and "worthy of
consideration". So my views can hardly be
described as perverse.
Lord Justice Pill asked however about
the use of words like "decisive" and
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