June 21, 2001 (London)
2 of the Lipstadt appeal
I ARRIVE at 10.32 a.m., as the Court is
already in session. [Counsel]
Adrian Davies is dealing with
judgment, Paragraphs 13.3 and 13.4:
"It is not sufficient to say that Mr
Irving carried out only partial research".
He continued that it was the difference
between negligence and deceit.
Davies continues that he will in fact
adopt many of Mr Justice Gray's
findings as primary fact. But not the
conclusions. He has misdirected himself,
for example at Paragraph 13.70.
Lord Justice Buxton, seated on
the right, interrupts about Paragraphs
13.68 to 13.70.
Mr Davies puts it thus:-
In 1988 Mr Irving was impressed by
Fred Leuchter. Leuchter was a Gas
Chamber Consultant. Professor Roth
changed his mind about Auschwitz,
and then Roth did a re-analysis, coming to
the opposite of his original conclusion.
Buxton then interrupts again to quote
Gray's judgement at Paragraph 13.68:-
"When the trial started, etc."
Adrian Davies explains that there had
been no gassings at Auschwitz I, but there
may have been at Birkenau, otherwise known
as Auschwitz II, he continues, but until
the Leuchter report, Mr Irving was
uninterested in the Holocaust. It was only
one aspect of the history that he
(Lord Justice Pill, the
presiding judge, interrupts to explain to
the Court that we are hearing Mr Davies on
the merits of the case, the Application
for Commission and the Appeal are being
heard both together.)
Mr Davies: Mr Irving is trying to prove
that the weight of the evidence, the later
evidence, "supports and fortifies" his
view. He should have said, "You can't call
me a perverter of the evidence, just
because Leuchter has long after 1988 been
Lord Justice Pill: "Does Judge Gray
analyse where the state of mind of Mr
Irving changed? Mr Irving rather brought
this upon himself by arguing his present
Mr Adrian Davies says: "Judge Gray
should have redirected Mr Irving on the
proper case that he should be following."
Gray J went badly wrong, too -- see
Paragraph 13.70. At 13.73, he does a 180š
volte face: the facts that Gray finds are
not consistent with the conclusion that he
draws. At Page 74, Pelt refers to "a
massive quantity" of eye witnesses and
documents. But Gray says there is no
evidence at all. The only evidence is the
letter from Bischoff. Davies refers
to the letter from Bischoff, and reads out
Paragraphs 13.73-13.74 and 13.75 of the
Lord Justice Buxton requests
that he take it down to Gray J's
conclusion at 13.91. He asks: "Did the
Judge misdirect in his conclusion at
13.91?" Adrian Davies argues at length:
"If Mr Irving had wilfully perverted
(13.91) the evidence on Auschwitz, the
court will be right to say: "Out you
Lord Justice Mantell: "Could that
dispose of the Section 5 point?" [i.e.
section 5 of the Defemation Act]. Lord
Justice Pill says: "But you are arguing
that the timing is important?"
Adrian Davies says: "It is a major
problem to which Mr Justice Gray should
have adverted more closely." Lord Justice
Pill says: "I am just not following. "How
are we to take Paragraphs 13.71 to 13.90?
If the contention is right, then that is
the end of the case."
Adrian Davies: "If at any point between
1988 and 2000 for any sustained period the
Defendants can show that Mr Irving adopted
a perverse position, with wilful blinding
of himself ....
Lord Justice Pill says: "The point of
time includes a trial."
Adrian Davies: (quotes Paragraph
Lord Justice Mantell: "Did he
[Irving] concede under examination
in chief or in cross-examination? Did he
volunteer these statements?"
- Did Judge Gray correctly direct
himself (Adrian Davies says: "No").
i.e. he misdirected.
- Assuming he did not put the
question correctly, did he answer the
Adrian Davies disagrees and quotes the
authority he relies on.
Lord Justice Pill says: "What you now
say is not what Mr Irving said in his
books, today it is what he said at trial.
But you would say Mr Irving has not
written on this point.
Adrian Davies refers to concessions
made by Pelt and Bischoff. He compares Mr
Justice Gray's Paragraph 13.73 of the
document with Paragraph 138 of his own
Lord Justice Mantell asks Adrian Davies
to give the second point, which Gray
relies on ... Paragraph 13.149.
Lord Justice Mantell refers to the
other Bischoff documents.
Lord Justice Buxton comments that all
this is "a dispute on fact". "What do you
expect us to do?"
Adrian Davies says:-
- If Judge questions the Bischoff
document in Paragraph 13.73, he should
not accept it in 13.149.
- If the Judge himself finds curious
features about the document, and Van
Pelt concedes that two such features
are not to be found in any other
Auschwitz documents, is Mr Irving being
perverse in questioning the
Mr Justice Pill: "That is what I want
your help on."
Adrian Davies: "I would advise you to
answer this question instead. Paragraph
7.129. The conclusion does not follow from
the premises. The conclusion is not that
the Bischoff document is a forgery. It is
that Mr Irving's conclusion is motivated
by an ideological impetus. But Mr Irving
is driven by a political agenda..." Mr
Justice Gray is not justified....(Lord Justice Pill writes all this
Lord Justice Pill: "Van Pelt accepted
it as authentic: the Judge accepted Van
Pelt. Judge Gray was entitled to find as
Adrian Davies: "It is a very, very
large leap to draw the conclusion that Mr
Irving was being perverse and
ideologically driven in disputing the
document."(Lord Justice Buxton intervenes
Adrian Davies then points out: "Van
Pelt was not trained in a forensics
laboratory to determine the authenticity
of the documents. Van Pelt was a "cultural
Lord Mantell: "The question was whether
a reasonable historian was entitled to
doubt its validity.
Adrian Davies praises Van Pelt on the
history, but not on his ability to
Lord Justice Pill says: "Mr Justice
Gray says that Mr Irving applies double
standards."(It is now 11.58am.)
Mr Davies now comes to Paragraph 13.76
and points out that thousands could have
been killed by other means than gas. (Mr
Davies rather loses me with his narrative
and probably the Court as well. He refers
to the British-intercepted
telegrams which Höss sent
to Berlin, to the WVHA.)
13.77 The eye witnesses. Coming to
Henryk Tauber, Davies says that he
was the one who talked of manufacturing
sausages from human bodies in the
crematorium (he confuses Tauber with
David Olère, and I correct
Then Lord Justice Buxton educates
Davies. A Judge first of all warns
hinmself about the evidence, and then he
assesses it. For example, on Paragraph
..., and then he applies "judicial
consideration". The fact is that the Judge
originally warned himself.
Adrian Davies points out that Judge
Gray hasn't actually seen Olere, he was
testifying in 1945.
Lord Justice Buxton said that where
Judge Gray arrived at a conclusion, a
Judge is entitled to come to it.
Asked Adrian Davies concluded by saying
"that this Court must review the Judge's
conclusions." Judge Gray was relying on
"the convergence of evidence". But some
Witnesses were saying things that are
beyond belief. Lord Justice Buxton asks
what is wrong with the Olère
Adrian Davies deals then with the
Olère drawings and he then refers
to Höss's "2.8m" killed, and says all
the eye witnesses are open to doubt. In
that case Mr Irving is entitled to his
doubts about the whole corpus of eye
witnesses evidence. The conclusion of
Paragraph 13.78 depends entirely on the
correction of the premise that the
totality of evidence is so
Lord Justice Mantell: "But Mr Irving
asserts that no gassings took place at
Lord Justice Buxton: ...says ... "at
the beginning of Auschwitz." (Adrian
Davies asks which Auschwitz are you
Lord Justice Mantell asks: "Could a
Lord Justice Mantell asks: "Does Van
Pelt agree that there were no gassings at
Auschwitz I (No). And that he said "that
the gas chamber at Auschwitz I was a fake"
(Yes, and Van Pelt agrees).
Adrian Davies: "It may be wrong, very
wrong, to say that no mass gassings
occurred at Auschwitz. Eventually,
evidence may be strong enough to make a
contrary assertion a perverse position. It
was not perverse in 1988. Nor at the
trial. Then confronted by evidence at the
trial, Mr Irving resiled from his
position. The assertion is supported by
remarkably few documents and credible eye
witness evidence. If the Judges conclude
that Mr Irving is wrong, that would not
dispose of the Appeal. The Defendants must
show that the facts were so monstrously
evident, that no reliable historian could
say the opposite. Mr Irving is not a
perverter, or falsifier, or liar."
Lord Justice Mantell observes: "The
Defendants aren't just saying that Mr
Irving is a "chump".
Lord Justice Buxton interrupts: "Look
at Paragraph 13.80, the first
Mr Davies: "Van Pelt relies on Roth, as
did earlier Mr Irving. If Mr Irving
persisted in this today, relying on Roth,
that would be perverse. I can't rely on
Germar Rudolph to justify as it [the
Rudolf Report] was not before Judge
Lord Justice Pill says: "If Proposition
A relies on material X, Y, should he
abandon it if X, Y is wrong, but material
Z comes along."(We then adjourn for
At 2.30 pm the Court resumes.
Photo No. 38 is not admitted, as it has
not been properly proofed. Adrian Davies
then refers to Judge Gray's misdirection
of himself. We come to the holes
in the roof. Davies says that this
argument was no part of Mr Irving's 1988
scepticism, but by 2000 new matters have
come to his attention. See Paragraphs
13.81, 13.82. He asks them to read the
last lines of Paragraphs 7.92 to the end
Richard Rampton, QC wants the
Judges to read Paragraph 13.83.
Mr Justice Gray says, despite his
speeches, "Irving's argument deserves to
be taken seriously." Davies reads out the
last lines of Paragraph 13.83. He
- It is perverse to conclude that Mr
Irving should not have ... It is a
matter of judgement for a
- If the cumulative evidence is weak,
then the argument is less. Mr Irving
had reasonable grounds for doubt, if
Crematorium No.2 was indeed the
'epicentre" of the murder.
- ... (not recorded).
Lord Justice Pill said something about
"3 issues in a case."
Mr Davies: "Mr Justice Gray wrongly
assessed the relevant weights of
evidence." He notes the extreme thinness
of Paragraph 13.89. Gray talks of the
"strict rule of secrecy" but why should
there have been any secrecy? The code
messages from Auschwitz to Berlin were
'Top Secret', and in code, so why would
Höss have kept things secret?
should the cold-blooded murderer,
Höss, have been coy about mentioning
the gassings, if he had mentioned all the
other killings that were going on?
Lord Justice Buxton asks: "Did
[Prof. Richard] Evans
any evidence on this?"
Adrian Davies explains that this was
not Evans's pitch. Nobody explained and
there is no reference to the gassings in
Lord Justice Mantell: "Mr Justice Gray
gave two reasons. The second, if
conclusive, is right. (That is the fact
that the prisoners due to be gassed were
Davies says: "Nobody suggests that only
the non-registered inmates were
At 3.03pm Adrian Davies gets on to the
question of coke consumption.
Judgment paragraph 13.90 He objects
strenuously to Judge Gray's acceptance of
Pelt's expert evidence on the
subject. Van Pelt had no qualifications
whatsoever on this matter. Van Pelt knows
nothing about cremation technology.(Lord Justice Mantell
Adrian Davies says again that Pelt was
Lord Justice Pill says: "Historians
must be able to make evaluations on
Adrian Davies offers other examples.
HMS Hood was sunk in May 1941 with three
survivors. Naval historians say that the
shell was fired by Prinz Eugen, and not
the Bismarck. A historian could not come
to a technical conclusion on the ability
of the smaller ship to fire such a
Lord Justice Pill suggests: "He could
look at the manuals of German
Lord Justice Mantell "has asked for a
sight of the document." He asks "less than
Adrian Davies interrupts: "I have
not come prepared to argue the underlying
merits of the Pelt document."
Lord Justice Mantell: "Mr Justice Gray
should have said nothing about it on
either eye witness."
Lord Justice Pill queries: has he
noticed the italicised sentence above
correctly, as he finds it a "hard
position:. He is unhappy with Adrian
Davies's example of HMS Hood.
Mr Davies continues: "If it were
suggested that Van Pelt was a self-taught
crematorium expert that would be
Lord Justice Pill again is angry at not
seeing the document.
Adrian Davies says: "I would not
Lord Justice Mantell says "the point is
of no use to you at all."
Mr Davies then comes to the cremation
figures for Gusen Concentration Camp,
which were 35kg of coke per corpse. (That
Day 8, January 24, Page 131.)
Lord Justice Mantell: "So you are
withdrawing the concession."
Lord Justice Pill interrupts: "Well, we
have been over it."
Adrian Davies: "Neither side can
properly give evidence on it. Mr Irving
has cut his own throat by failing to bring
any scientific evidence."
He then deals with Paragraph 13.91.
Mr Davies continues: "The case comes
down to this. Mr Irving asks the Court of
Appeal to consider: Was he being perverse
in 1988 in relying on Fred Leuchter? Did
Mr Irving become perverse by persisting in
his doubts about the received history of
Auschwitz, or was he being perverse, or
was he expressing reasonable doubts
because of the holes, the eye witnesses,
the decrypts, and other matters.
He continues: " If Mr Irving was not
perverse in 1988, and he did not become
perverse later, ... unless their Lordships
are able to conclude to a very high
standard that Mr Irving was not honestly
doubting, but was bent on whitewashing the
Nazi regime, putting a version of history
so utterly unsupported, then the
justification finding against him would
not be upheld."
Davies is drawing to the end of his
submissions, and at 3.35pm I murmur to
him, "Don't forget
Adrian Davies begins by saying: "Because
of the chaos [caused by the previous
solicitors acting for] his Client I
don't know what new materials have been
sent to Davenport Lyons [solicitors
for Penguin Books]." Among the new
materials, is the book by Professor Evans.
He concedes, "This is a Ladd v Marshall
Lord Justice Buxton impatiently asks:
"What is your complaint?"
Adrian Davies says: "Evans was
biased, he disliked David Irving,
and consequently his evidence is to be
given less weight than Gray gave to
Lord Justice Buxton: "Mr Davies must
demonstrate that the bias led to him
giving wrong evidence. And that Gray J
relied on Evans..." Buxton adds with a
degree of menace that what Davies is
alleging in Evans is "mendacity", which is
a serious charge. (It is noticeable that
unlike yesterday and this morning, Evans
is suddenly not present in the courtroom.
I suspect that Rampton has drawn the
appropriate conclusion from the six copies
of the Evans book (US edition) stacked up
on our counsel table.)
Adrian Davies: "My submission is this:
Evans gave the most crucial evidence on a
range of subjects. He was the defence's
key witness. He said: "Irving is not a
historian at all." If Judge Gray had been
of the view that Evans had a pronounced
animus against Mr Irving, the Court is
entitled to disregard his evidence.
Professor Evans is not an impartial,
unbiased witness. What he wrote after the
trial so strongly reveals his state of
mind, his personal animus ... (and Davies
refers to Paragraph 5 of his skeleton
Adrian Davies says that Evans had told
The Times that Mr Irving is "not a
Lord Justice Pill: "Are you going to
pursue the application that you make in
Paragraph 19 of your skeleton?"
(Davies reads out on Day 18,
Page 110, the cross
examination of Evans on oath on
February 10, 2000, in which this expert
witness claimed, when challenged, to be
neutral toward Mr Irving.)
Lord Justice Buxton: "If you are going
to come and say that a Witness has lied,
you have got to say so in a Notice of
Appeal. When did you obtain this evidence
that Evans was a liar?"
Adrian Davies blames Nigel Adams for
having given so little fore-warning on
this and other matters to the other
Lord Justice Buxton: "We are making an
application that a Witness in the Court
below lied to the Judge?"
Lord Justice Pill: "You haven't
answered my question. Are you proposing to
make a case on Paragraph 19?"
Adrian Davies: "The allegation is in
the skeleton argument."
Pill blames Mr Davies for not giving
notice of the application for
introducing Evans' book as evidence of
Mr Rampton is on his feet: "Professor
Evans is not present" he shouts, and is Mr
Davies not aware of the rule of the Bar
Council which states that Counsel should
not raise matters concerning the testimony
of Expert Witnesses unless that Witness is
present in Court. This leads to a heated
discussion. Judge Pill finds that hard to
Mr Davies says that in an appelate
Court like this, a witness is not normally
Justice Pill demands that Mr Davies now
state a formal application about Evans. Mr
Davies makes the application, namely to
put the Evans book to the three appeal
court judges, as the book carries the
clear proof that Evans has "animus,
hostility, and loathing of Mr Irving."
Rampton leaps to his feet to protest at
the inclusion of these words.
Lord Justice Pill refers to the
evidence. Paragraph 19 and Paragraph 71 of
the skeleton are already strong
Mr Rampton again objects to this late
application. The Evans book was published
earlier this year. On March 24 the Irving
website already reviewed
the book. On January 17, the Court had
ordered that all documents should be put
to the Defendants. "Mr Davies has brought
out this application from under the
carpet." Professor Evans, says Rampton,
did not give any evidence susceptible to
any challenge to his credibility. Mr
Davies must demonstrate the actual
credibility cause, and again he points out
that Evans is absent from the
Adrian Davies doggedly states:
"Professor Evans was a key witness on the
Defendant's side." The Defendants chose
not to call either Defendant, Lipstadt or
Penguin. Professor Evans led the attack on
Mr Irving's reputation as a historian.
Adrian Davies reads out some parts of
Evans's Expert report until Lord Justice
Buxton stops him.
Davies states that the weight to be
attached to Evans's evidence depends on
his credibility as an Expert Witness. He
must be impartial and unbiased. If he is
biased, Evans might not have gone out of
his way to look for material which would
support Mr Irving. He had abandoned the
position of a neutral Expert Witness, and
had become an advocate for his side,
namely the Defendants.
Lord Justice Pill refers to Mr Irving's
attacks on Evans's credibility, and uses
the phrase, "absurd attacks."
Davies: "Yes, it was proof of his
(Lord Justice Pill refers to points
that Mr Davies has not covered. Dresden,
the public meetings, etc. Adrian Davies
says: "I feel confident that I have made
my most important submissions on the
Lord Justice Pill says: "You must
present your case as a whole. What about
your other applications?"
Adrian Davies now says: "I do not intend
to move the application for the
presentation of the Germar Rudolph
Affidavit. I am in difficulty. Nobody has
provided me with the key documents. If my
Lords felt that there was merit to my
application for permission to appeal, then
it would be a matter for consideration
that your Lordships would then allow me to
apply to put in this evidence.
Pill says: "No. You must be plain. I
asked whether you are pursuing your
application in the Rudolph
Adrian Davies says: "No, I am not
pursuing the Rudolph application."
The Court then retires to consider our
application to introduce in evidence the
Professor Evans book Lying about Hitler,
and at 4.25pm makes the ruling on our
application. Lord Justice Pill reads it
"The application is refused.
- The extreme lateness and the
context of the seriousness of the
- In the skeleton
argument there is an allegation in
similar terms, at Paragraph 19: Mr
Davies does not intend to pursue the
application. It is customary to
establish animus by analysis of the
- The emphasis of the Court is on
Auschwitz, so fresh evidence is not
Lord Justice Pill asks Mr Davies to
help by summarising the submissions he
will make tomorrow.
Mr Davies, as briefly as he can: He
will be making submissions on the
of the Jews in Riga. He hopes to
finish before lunchtime. He will deal with
Riga; Mr Irving's treatment of the entries
in the Goebbels Diary, March 1942;
with Admiral Horthy; Dresden;
and lastly the fate of the Rome Jews, and
Irving's treatment of Ribbentrop's
statement at Nuremberg.
Rampton: "Where does that leave me? Our
time runs out at the end of tomorrow.
Unless I am given more than half a
Lord Justice Pill says: "We are
constituted until Tuesday."
Related items on this website
for the appeal