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Wednesday, June 20, 2001 (London)

Day 1 of the Lipstadt appeal

8:15 a.m. Rolf Hochhuth phones again at length, I ask him to phone again in a few days!

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 Lying about 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 quick witted."

[My courtroom notes read as follows:]


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 Judgment. 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 later.

Prof Richard EvansAt 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 points."

Then Mr. Davies sets out his reasoning. One of Mr. Justice Gray's considerations was based on the evidence of Professor Richard Evans (left). But 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; or
(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. HeydrichAt some point in June 1941 Himmler and Heydrich (right) had 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 "Holocaust denier".

Lord Justice Buxton objects that there is no suggestion in our skeleton argument that they misunderstood what was meant.

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 important."

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 (first part).

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 itself."

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 law.

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 respect.

Lord Justice Pill asks: Doesn't something further have to be established? The motives alleged for the distortion.

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 Hoffmann allegations.

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 skeleton argument, and he relies, he says, on The Ikarian Reefer on the matter of Expert Witnesses.

"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; or
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 the evidence.

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.

Davies 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. Justice Gray (right), 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 conclusions.

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 him.

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 writing.

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 immaterial?"

Richard Rampton correctly points out that the error has not been changed in the later, 1991, Avon Books Inc. edition of Hitler's War.

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 by contamination.

It was decided that we should make a Submission on the Wannsee Conference tomorrow.

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 "incontrovertible"?

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