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In the High Court of Justice

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Penguin Books Ltd and Deborah Lipstadt

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In 1993 American scholar Deborah Lipstadt published Denying the Holocaust, product of a research contract funded by an Israeli agency.

British writer David Irving claims that it libels him.


Skeleton Grounds for Appeal against the Judgment



1. The Claimant, Mr David John Cawdell Irving ("Irving") seeks permission to appeal against two orders of Gray J, the first dated 11th April 2000, and the second dated 5th May 2000.

2. By his order of 11th April 2000, Gray J ordered inter alia that judgment should be for the Defendants, Penguin Books Limited, ("Penguin") and Professor Deborah Lipstadt ("Lipstadt"), that the Claimant should be refused permission to appeal, and that the Claimant should pay the costs of the First and Second Defendants, to be the subject of a detailed assessment.

3. By his order of 5th May 2000, Gray J ordered inter alia that, by four o'clock on Friday 16th June, 2000, the Claimant should pay the sum of £150,000 on account of costs to the First and Second Defendants, pending the detailed assessment directed by his order of 11th April 2000.

4. References in this skeleton argument to paragraphs by number are to the paragraphs so numbered in Gray J's judgment, save where otherwise stated.

Background and Dramatis Personae

5. The background to the action and its Dramatis Personae are so well known that little need be said about them, save that Irving does wish to draw the Court of Appeal's attention to the intimidating atmosphere of hysterical press hostility in which the trial took place, whipped up in particular by The Guardian, which is a defendant in separate proceedings brought by Irving against one Gitta Sereny and Guardian Newspaper Limited.

The issues as pleaded

6. There is a very fair summary by Gray J at paragraphs 1.1 to 2.16 of his judgment, which Irving adopts, subject only to one point on paragraph 2.16, set out at paragraph 7 below. Irving also adopts Gray J's words at 13.1:-

"The charges levelled at Irving's historiography appear to me to lie at the heart of what Lipstadt wrote about him in Denying the Holocaust."

i.e., not charges of "racism" (whatever that might be) or anti-Semitism, which (as Gray J rightly observed) were not alleged by Lipstadt in Denying the Holocaust, nor pleaded by Irving as a libel upon him by his Statement of Claim, nor yet pleaded or relied upon by way of particulars of justification in either Defendant's Defence.

7. While Irving generally adopts Gray J's summary, he submits that the natural and ordinary meaning of Lipstadt's words at p. 213 of Denying the Holocaust, viz. "Nolte, echoing David Irving, argues that the Nazi 'internment' of Jews was justified because of Chaim Weizmann's September 1939 declaration that the Jews of the world would fight Nazism" is that Irving approves of the imprisonment and (by the popular innuendo apparent from the use of quotation marks around the word 'internment') the killing of Jews in concentration camps. To the extent necessary, Irving will seek leave to amend his Statement of Claim to plead this matter more fully.

The grounds of appeal

8. The Claimant seeks permission to appeal on the grounds (1) that the findings of justification in respect of the defamatory charges on which the Defendants succeeded were against the weight of the evidence, (2) that the judge erred in law in admitting the evidence of Evans as to the construction of the words "Holocaust denier," (3) that the judge erred in law in admitting the evidence of Van Pelt (i) at all, or (ii) at any rate with reference to (a) chemistry and (b) the technology of crematoria, and (4) in applying section 5 of the Defamation Act, 1952 in respect of the libels on which the Defendants offered no evidence, or which the Defendants wholly failed to justify.

9. When refusing permission to appeal his order of 11th April 2000, Gray J observed that "essentially [the] case turned on questions of fact, the most important of which entailed assessing the Appellant's credibility. Public interest can be [a] reason for granting permission, but that is a question best left to the C.A."

10. Undoubtedly this case is of the greatest public interest. The trial at first instance attracted worldwide publicity. The issues canvassed were of the greatest importance for the interpretation of the political and military history of the twentieth century. Irving relies on this ground in seeking permission to appeal. He contends no less strongly that Gray J erred seriously in weighing the evidence, so that his findings are wrong and unjust.

11. The basis on which Gray J assessed the Appellant's credibility was not an adverse general estimate of Irving, or his demeanour as a witness, or his general character. Indeed, Gray J makes the most flattering observations about Irving as a military historian at 13.7. Irving gratefully adopts all that Gray J says in 13.7, and relies upon it in support of his submission at paragraph [ ] below.

12. Neither Defendant gave oral evidence, nor did they call any witnesses of fact, but only experts, to whom the Claimant returns at paragraph [ ] below. It accordingly follows that Gray J was certainly not impressed by the Defendants' demeanour, as Lipstadt took good care not to have her own evidence tested in cross-examination.

The Law

13. Gray J's findings are based upon adverse inferences arising out of his assessment of the weight of the real, expert and documentary evidence. Gray J found that Irving could not honestly and reasonably have come to his stated conclusions, faced with the historical record taken as a whole.

14. On such findings, the correct approach is laid down in Lord Reid's speech in Benmax v. Austin Motor Co. Ltd [1958] A.C. 370 at 376:-

"... in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

15. See also per Baggallay J.A. in The Glannibanta (1876) 1 P.D. 283 at 287 to 288:-

"Now we feel... the great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are... material elements in the consideration of the truthfulness of their statements. But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect."

16. It follows, it is submitted, that permission to appeal should be granted if it appears to the Court of Appeal that Gray J has drawn the wrong inferences from the real, documentary and expert evidence.

The weight to be attributed to the evidence of the Defendants' experts

17. "The duties and responsibilities of expert witnesses in civil cases" (per Cresswell J) were, it is respectfully submitted, well described by Cresswell J in The Ikarian Reefer [1993] 2 Lloyd's Rep. 68 at 81 to 82. This part of Cresswell J's judgment was by no means disapproved when the C.A. reversed him at [1995] 1 Lloyd's Rep. 455. They "include the following":-

"1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.

"2. An expert witness should provide independent assistance to the Court by way of objective, unbiassed opinion in relation to matters withing his expertise. An expert witness in the High Court should never assume the role of an advocate.

"3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

"4. An expert witness should make it clear when a particular question or issue falls outside his expertise."

18. Gray J describes the Defendants' five expert witnesses and their purported areas of expertise at 4.17.

19. Irving's case is that all five were motivated by ideological bias, and that Evans in particular and Longerich to a lesser extent were motivated by personal hatred, so transgressing against Cresswell J's principles 1 and 2, that Evans offended gravely against 3 in relation to the Schlegelberger memorandum (para. [ ] below) and the Bartz telex (para. [ ] below). Irving contended throughout that Van Pelt is doubtfully an expert in any relevant discipline at all. On the most generous view of Van Pelt's expertise, he gave crucial evidence on matters in respect of which he did not even purport to be an expert, contrary to 4, namely the chemistry of fumigation and killing by gas chamber, and the fuel consumption of crematoria.

20. Further, the fees which the Defendants paid to these experts for giving their evidence were so grotesquely large (Gray J was shocked by the figures on 5th May 2000, especially the payment to Funke, who made a very short appearance indeed at trial) that they could not possibly have given evidence "uninfluenced as to form or content by the exigencies of litigation".

21. The experts' fees were: Van Pelt £109,244.24, Funke £92,557.94, Longerich £76,195.25, Evans £70,181, and Browning a (relatively) modest £27,632.12.

Subject Matter of Expert Evidence

22. It is an important part of Irving's application for permission to appeal to challenge how far expert evidence is admissible at all on the meaning of the words "Holocaust denier".

23. At 13.92 Gray J said: "I accept the evidence of Evans, which was not challenged by Irving, that what characterises a 'Holocaust denier', in the sense in which that term is used by Lipstadt in Denying the Holocaust, is that he or she holds or expresses some or all of the views which I have listed in paragraph 8.5 above."

24. Irving went through each of Evans's criteria in turn, asking Evans whether, to be a Holocaust denier, he merely had to satisfy one of these criteria, or all four. Evans never answered this question properly. Irving contends that, as a matter of fact, he certainly does not satisfy Evans's second and third criteria, which were not established against him on the evidence. See para. [ ] below.

25. Moreover, as a matter of law, Gray J should not have received expert evidence on the meaning of ordinary English words; see in this respect Hodgkinson on Expert Evidence at p.155:-

"... it may appear to be of benefit to call an expert witness as to meaning, or, as is more likely, to ask an expert, already giving evidence as to other matters in the case, to express a view on meaning in the light of his experience and skill. Save in limited and specific circumstances, though, an expert's views are inadmissible and should not be canvassed."

26. As to the limited and specific exceptions, see Lovell and Christmas v. Wall (1911) 104 L.T. 85 per Cozens-Hardy M.R.:-

"If a document is in a foreign language, you may have an interpreter. If it contains technical terms, an expert may explain them. If, according to the custom of a trade or the usage of the market, a word has acquired a secondary meaning, evidence may be given to prove it."

27. As to the rule, see per Fry J. (a judge very learned in matters of construction) in Holt & Co. v. Collyer (1881) 16 Ch. D. 718 at 720, when rejecting evidence as to the meaning of a word:-

"In my view the principle upon which words are to be construed in instruments is very plain. Where there is a popular and common word used in an instrument, that word must be construed prima facie in its popular and common sense. If it is a word of a technical or legal character, it must be construed according to its technical or legal meaning. If it is a word which is of a technical and scientific character, then it must be construed according to that which is its primary meaning, namely its technical or legal meaning. But before you can give evidence of the secondary meaning of a word, you must satisfy the Court from the instrument itself or from the circumstances of the case that the word ought to be construed, not in its popular or primary signification, but according to its secondary intention."

28. The effect of receiving Evans's evidence on this crucial issue was to allow Evans rather than the Court to set the parameters within which the Defendants would have to justify the pleaded libels. It is submitted (1) that Gray J erred in law in accepting Evans as an expert on the meaning of two ordinary English words, (2) that he should have reached his own view what "Holocaust denier" means, unassisted by expert evidence, and (3) that since he failed to do so, the Court of Appeal ought now to do so instead.

The meaning(s) of German words

29. This is a proper subject for evidence. It is submitted that in accordance with Fry J's criteria of construction, such words must be construed prima facie in their popular and common sense. If, for example, the Defendants suggest that the word abtransportiert should be translated in some other sense than "deported", which is its popular and common sense, it is for them to prove that.

Van Pelt's qualifications as an expert

30. On Day 9 (25th January 2000) the following somewhat extraordinary exchange took place between Irving and van Pelt.:

"Q. You studied at the University of Leiden, am I correct?
"A: Yes, I did.
"Q: And you are now Professor of the History of Architecture at the University of Waterloo in Toronto?
"A: No. The issue of my appointment is kind of confusing. I am in the Department of Architecture and hence I am officially a Professor of Architecture. Your title as Professor depends on the department you are in. However, I teach in what we call the Cultural History stream, so normally, in order to prevent confusion in ordinary usage, I would call myself Professor of Cultural History because, both in my background, my PhD and my teaching duties, I teach cultural history in the architectural school. However, when I was advised about the way I had to create my curriculum vitae for this proceeding, I was told that I had been to be extremely precise in the legal sense of what I was, so again I put in Professor of Architecture.
"Mr Justice Gray: So you are really a cultural historian?
"A: I am really a cultural historian.
"Mr Irving: This is a point of some substance, my Lord. We need to know precisely what your qualifications are to offer your expertise to the court. I do not mean this in the least sense in a derogatory manner because, as I say, I have read both your book and your report with the utmost interest. However, we need to know what your areas of expertise actually are. In Britain, of course, we have the Royal Institute of British Architects. Are you familiar with the fact that it is illegal in England to call yourself an architect unless you are registered with the RIBA?
"A: That is in most countries like that, yes, I know.
"Q: In Holland, the equivalent is the Bond van Nederlandse Architecten, am I correct? I am sorry about my pronunciation.
"A: Yes, Bond van Nederlandse Architecten.
"Q: Which is the rough equivalent of the RIBA?
"A: Yes.
"Q: Am I right in saying that you are not registered with the Bond van Nederlandse Architecten?
"A: I have never had any reason to do so, since I never studied in an architectural school..
"Q: So you cannot legally pretend to be an architect, if I can put it like that?
"A: No, I could be prosecuted.
"Q: You could be prosecuted?
"A: Yes.
"Q: Rather like Mr Leuchter was prosecuted in Massachusetts for pretending to be an engineer?
"A: Yes.
"Q: You can probably see the thrust of this particular question. In other words, your expertise, as an architect, is the same as Mr Leuchter's expertise was an engineer?
"A: I do not really know. I have been teaching in architecture school now since 1984. I have taught design courses, specially in small architecture schools one needs to chip in wherever one does. I have been on architectural juries and quick sessions, mostly on a weekly, bi-weekly, kind of frequency. I did...
"Q: You have never learned architecture? You have never studied architecture at university? You have never taken a degree in architecture?
"A: I do not have a degree in it, but I have been confronted with the architectural practice and, apart from that, I have worked for various architects, one of them, Sir Dennis Leston, here in England, when he was designing the Synagogue in Jerusalem. I have worked with Jack Diamond in Toronto. So I have been in architectural offices very often and other practices.
"Q: And, of course, you are now advising the present Auschwitz authorities on the reconstruction, if I can put it like that, of the Auschwitz site?
"A: I was advising them, yes."

31. Even if Van Pelt has sufficient practical experience of architecture to be classified as an expert in that field, which is certainly not conceded, it is strongly submitted that Gray J erred seriously in law in admitting Van Pelt's evidence on delousing (7.123) and the technology of crematoria (7.124).

Section 5 of the Defamation Act, 1952

32. Gray J further states (rightly, it is submitted) at 13.167 that to invoke section 5 of the Defamation Act, 1952 in respect of any libels which they fail to justify, the Defendants have to prove that such libels do not materially injure Irving's reputation compared with the defamatory charges which they succeed in justifying. Gray J accepted that the Defendants succeeded on section 5.

33. One of the three defamatory charges which the Defendants wholly failed to justify was "Lipstadt's claim that Irving was scheduled to speak at an anti-Zionist conference in Sweden in 1992, which was also to be attended by various representatives of terrorist organisations such as Hezbollah and Hamas." (Per Gray J at 13.166).

34. It is submitted that this libel is so very grave that, as a matter of law, section 5 does not avail the Defendants, even if Irving fails on every other issue.

The Allegation that Irving is an "Extremist"

35. It is submitted that, as a matter of law, it is not sufficient to plead by way of particulars of justification that someone is an "extremist," let alone to introduce this point in the course of argument without pleading it sufficiently or at all.

36. Greer LJ said in Tolley v. Fry [1930] 1 KB 467 at 479:-

"Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation."

37. A statement is not defamatory simply because it is untrue, so to suggest that someone takes a particular political position is not defamatory per se, even if it is completely untrue. See per Street J. in Slatyer v. Daily Telegraph [1907] 7 NSWSR 488 at 498, a New South Wales case, which is generally accepted as good law in England, and is cited with evident approval at note 90 to para. 2.19 of Gatley.

38. That, it is submitted, is the case, however "extreme" the position in question may be. True it is that there are cases (they are to be found at note 88 to para. 2.19 of Gatley) in which it has been held that it is defamatory to say of a man that he is a Communist, but they are best explained on the basis that the libels complained of carried the implication that the plaintiff was a traitor in the pay of a foreign power, or that he advocated overthrowing the state by violence.

39. Thus Devlin LJ said in Kantorowicz v. Cookridge, The Times, 10 October 1960, at the height of the Cold War, and at a time when the full extent of Stalin's crimes was already well known, that it would not in all circumstances be defamatory of a man to say that he was a Communist.

40. An extremist is merely a man whose ideas depart radically from the prevailing climate of opinion at a particular time. Anyone who suggested that the suffrage should be extended to the working classes would have been considered an extremist in the climate of opinion which held sway in 1800; anyone who suggested that the suffrage should be extended to women would have been considered an extremist in the climate of opinion which held sway in 1900. These were never morally reprehensible positions. Thus to prove that Irving associates with "extremists" ought to avail the Defendants nothing.

41. The crucial distinction in this case, it is submitted, is between libels 8A and 8B at paras. [] and [] below.

42. The principal issues on appeal in relation to justification, numbered by reference to the importance which Irving attributes to them, and not chronologically, are Irving's treatment of (1) Hitler's personal knowledge of the scale and scope of Nazi atrocities against the Jews during the Second Word War ("WWII") generally, (2) Auschwitz in particular, and (3) the events of Kristallnacht. Irving's case is that (1) and (2) are crucial, while (3) is important.

43. The Defendants additionally sought (successfully) to justify by reference to Irving's treatment of (4) Hitler's 1924 trial following the unsuccessful Beer Hall putsch and (5) the crime statistics for Berlin in 1932. Irving contends that (4) and (5) are of secondary importance.

44. The Defendants further succeeded on their plea of justification by reference to (6) Irving's account of the bombing of Dresden in February, 1945, (7) Irving's anti-Semitism and racism, and (8A) the claim that Irving associates with right wing extremists.

45. The Defendants did not attempt to justify Lipstadt's allegation (8B) that Irving associates with violent extremists, and failed to justify Lipstadt's allegations that Irving (9) works in his office under a portrait of Hitler, (10) had damaged the historic glass microfiches of the Goebbels diaries in the Moscow archives, and (11) had broken an agreement with the director of the Moscow archives.

46. As to (7) and (8A): on the Defendants' case as pleaded, (7) is prejudicial and irrelevant, or goes at most to Irving's motive for treating (1), (2), (3), (4) and (5) as he allegedly did, and could not of itself justify the pleaded libels, while (8A) is irrelevant, and could not under section 5 or otherwise justify the pleaded libels.

Hitler's personal knowledge of atrocities committed against the Jews during WWII

47. Though anathemized by Lipstadt as a "Holocaust denier," Irving has never denied (1) that the Nazis and their allies committed systematic mass murder of Jews on a chilling scale, especially in the Baltic states, in Byelorussia and the Ukraine, but also in Russia proper, in Poland, and in other occupied countries in eastern Europe, or (2) that many mass killings were latterly carried out as a matter of policy on the personal orders of Himmler and Heydrich, though (3) particularly in the early stages of Operation Barbarossa (the invasion of the Soviet Union in June, 1941), mass killings were carried out not also by German forces, but also by local, non-German, anti-Semitic elements, especially in the Ukraine and in the Baltic states, acting independently of Himmler and Heydrich for reasons of their own.

48. Two examples are:-

(i) Irving has broadcast on Australian radio that, from June 1941 onwards, over a million Jews were shot on the Eastern Front. A transcript of that broadcast was in evidence.

(ii) In his book Hitler's War, Irving writes that by 1943:-

"The increasing brutalisation of the war showed itself in many ways. . . Himmler revealed to his SS Gruppenführer (generals) on October 4, and to the Party's Gauleiters on October 6 that by the end of 1943 the last Jews in occupied Europe would have been exterminated."

49. The key issue under (1) is therefore the extent of Hitler's personal knowledge of and responsibility for the systematic mass murder of Jews, the historicity of which Irving does not dispute.

50. Irving's case (summarized by Gray J at 5.137, 5.138 and finally at 13.30) is that there is an important "chain of documents" which shows that, so far from having "ordered the biological annihilation of European Jewry" (5.94) Hitler intervened on occasion to check atrocities against the Jews, in accordance with his policy of deferring a "solution to the Jewish problem" until after WWII.

51. Irving does not dispute that there is also a contrary line implicating Hitler. Having weighed the evidence as a professional historian, he prefers the first line of documents to the second, and is, he says, amply justified in so doing.

52. It was not however sufficient in order for the Defendants to make good their plea of justification to persuade the Court that, on the balance of probabilities, and in the light of the materials now available to scholars, the second line is to be preferred to the first.

53. The distinction to be drawn is closely akin to that between the differing tests for negligence and deceit. As Gray J rightly observes at 13.3, "the issue... is Irving's treatment of the available evidence," and at 13.4, "Irving rightly stresses that the Defendants have accused him of deliberately perverting the evidence."

54. As to Gray J's findings under (1):-

The Schlegelberger Memorandum

55. The Schlegelberger memorandum is central to the appeal on the facts. Contrary to Gray J's express finding at 5.162, Irving has never acknowledged that the Schlegelberger memorandum is in any sense "unsatisfactory." On the contrary, he has always contended that it is a contemporaneous, authentic, brief, official, precisely worded, internal ministerial record of Hitler's thinking on the Jewish question, and so of seminal importance.

56. Schlegelberger was a civil servant in the Reich Ministry of Justice. In English translation his memorandum reads:-

"Mr. Reich Minister Lammers informed me that the Führer had repeatedly declared to him that he wants to hear that the solution of the Jewish Problem has been postponed until after the war is over. That being so, the current discussions are of purely theoretical value, in Mr. Reich Minister Lammers' opinion. He will moreover take pains to ensure that, whatever else happens, no fundamental decisions are taken without his knowledge in consequence of a surprise briefing by any third party."

57. Gray J errs in the gravest fashion in assessing the real evidence actually before him when he states at 13.33 that the Schlegelberger memorandum was "unsigned" and "an Abschrift (copy) rather than an original document... " and that "there is no clear evidence of the context in which the note came into existence."

58. A facsimile of the Schlegelberger memorandum was before Gray J in Court at all times. As is apparent from the facsimile itself, it is not (unlike most of the Defendants' documents) an Abschrift (typed copy) at all, but an original with holograph signatures. The original is still in German Federal Archives in its original Reich Justice Ministry file called Behandlung der Juden ("Treatment of the Jews"), which provides all necessary contextual material. The whole text makes it plain that the Judenfrage ("Jewish question") to which Hitler refers is by no means confined to the issue of Mischlinge (people of mixed descent), as suggested by Evans.

59. On the Defendants' case and Gray J's findings, the Schlegelberger memorandum was generated at a crucial point in the chronology of the Holocaust, just a few weeks after the Wannsee Conference of January, 1942, as to the supposed importance of which see paragraph [ ] below. Gray J told leading Counsel for the Defendants on Day 6, 19 January 2000, at page 168 of the transcript:-

"Mr Rampton, does it simplify matters if I say I am prepared to accept that there is good internal evidence that it is March or thereabouts 1942?"

60. While Gray J observes at 5.161 that:-

"The Defendants argue that no reputable and objective historian would nail his colours to the mast in the way that Irving has done by admitting only one possible interpretation of the note,"

he fails to point out that no reputable and objective historian other than Irving has ever mentioned this memorandum at all, yet it mentions the Führer, the "solution of the Jewish problem", and "decisions", all in one paragraph, expressly stating that Hitler wished to see the "solution of the Jewish problem" postponed until the war was over.

61. The Defendants have produced nothing whatsoever of this evidential value relating to the critical issue, namely the role of Hitler himself. The Defendants' experts have pretended in their books that it does not even exist. Their conduct in this regard amounts to an egregious suppresio veri et suggestio falsi.

The "Wannsee Conference"

62. As to 5.142 Irving's slim bundle of actually existing documents is set against Evans's sweeping, grandiose and wholly unparticularized reference to a "vastly greater number" of contradictory documents, not one of which does Evans identify.

63. Lipstadt herself thought that the minutes of the so-called "Wannsee conference" crucial to the historiography of the Holocaust, describing at page 214 of Denying the Holocaust:-

"... the 1942 Wannsee Conference, at which Heydrich and a group of prominent Nazis worked out the implementation of the Final Solution... "

64. Gray J evidently agreed with this view. While at 13.36 Gray J said: "I do not regard the arguments advanced by Irving... as being without merit: they are worthy of consideration," he nevertheless rejects Irving's interpretation of the Schlegelberger memorandum at 13.35, giving as one of his principal reasons:-

"that the evidence suggests that at the Wannsee conference in January 1942 (where Heydrich claimed to be speaking with the authority of Hitler) a programme for the extermination of Jews had been discussed and in broad terms agreed upon."

65. Lipstadt's and Gray J's observations wholly disregard the contents of the Wannsee protocol. Irving put the relevant quotes to Gray J in his closing speech:-

"For a long time the confident public perception was that the Wannsee protocol, of the 20 January 1942 meeting, recorded the actual order to exterminate the European Jews. Yehuda Bauer, the director of Yad Vashem, the world's premier Holocaust research institution in Israel, has stated quite clearly: 'The public still repeats, time after time, the silly story that at Wannsee the extermination of the Jews was arrived at.' In his opinion Wannsee was a meeting but 'hardly a conference,' and he even said: 'Little of what was said there was executed in detail.' (Canadian Jewish News, 30 January, 1992) Despite this, Your Lordship has had to listen to the 'silly story' all over again in this Court from the expert witnesses." (Day 32, 15 March, 2000).

66. Moreover, anachronism is a widely recognized fault in historical methodology. An approach based on the interpretation of documents written in 1942 in the light of events which happened in 1943 or 1944 is fundamentally flawed.

67. As to the other documents discussed in Gray J's judgment:-

The deportation of the Berlin Jews and the Riga massacres

(paras. 5.90 to 5.110 and 13.21 to 13.25)

68. It is submitted that Irving's treatment of these episodes is (1) to be preferred to Evans's, alternatively, (2) is a fair alternative interpretation of the material available to Irving.

69. As to 5.106, Gray J wrongly summarizes the evidence when he says:-

"In relation to the entry in Himmler's log for 1 December 1941, Irving said that he misread Himmler's spidery Suetterlin handwriting: he thought he had written Judentransporte in the plural. It was, he said, a 'silly misreading'."

70. In fact Judentransport occurs in the entry for 30 November, 1941 entry, and haben zu bleiben, which Irving admitted misreading as Juden zu bleiben, on 1 December, 1941. Irving never admitted misreading Judentransport as Judentransporte.

71. Evans's criticism of Irving's explanation for this mistake cited by Gray J at 5.110 is merely one instance of Evans's gross bias against Irving, and anxiety to impute the worst possible motives to him at every turn. The misreading of Himmler's difficult handwriting in respect of the phrase haben zu bleiben as Juden zu bleiben was regrettable, and eventually corrected. Irving was the first to find and transcribe these notes from Himmler's very difficult old-German handwriting, using barely legible photocopies in the 1960s. He inevitably made numerous errors of transcription. Others have since gone over the same notes and polished and refined the transcriptions. The excision of this sentence from the text has made no difference to the thrust of Irving's argument that there was a direct connection between Himmler's arrival at Hitler's HQ on 30 November 1941 and his telephone call to Heydrich, ordering a halt to the liquidation of the Berlin Jews.

72. Turning to this point at 13.21, Gray J says:-

"The second criticism (which is more important for the purpose of this case) is that Irving is in error when he claims that the instruction not to liquidate the Jews on that transport emanated from Hitler. There is no evidence that Hitler 'summoned' Himmler to his headquarters and 'obliged' him to telephone to Heydrich an order that Jews were not to be liquidated."

73. The sequence of events established by Himmler's agenda and telephone log is as follows. Himmler went to Hitler's headquarters in East Prussia on the morning of 30 November 1941, and "from the bunker" spoke at 1.30 p.m. by telephone to Heydrich, forbidding the liquidation of the trainload of Jews from Berlin. Himmler certainly saw Hitler either before or after this telephone call. Evans's claim at 5.104 that there were "several" bunkers at Hitler's HQ was refuted on the spot by Irving: Evans admitted that his map of the HQ was from 1944. Gray J makes no reference to Evans's poor methodology on this issue.

74. As Irving has recorded in many books, the trainload of Berlin Jews had however already been liquidated on arrival in Riga at around 9 a.m. on the morning of 30 November 1941. The culprit, SS Obergruppenführer Jeckeln, was severely criticised by Himmler (in a message intercepted by British codebreakers on 1 December 1941) for arbitrarily and disobediently exceeding the guidelines laid down by Himmler and the Reichssicherheitshauptamt (Heydrich):-

"SS Obergruppenführer Jeckeln. The Jews being out placed to Ostland [the Baltic states] are to be dealt with only in accordance with the guidelines laid down by myself and/or by the Reichssicherheitshauptamt on my orders. I would punish arbitrary and disobedient acts. (sgd) Himmler." See Day 3, 13 January 2000.

75. That same day Himmler summoned Jeckeln to East Prussian HQ by a second code signal; Jeckeln presented himself at HQ on 4 December 1941, and was reprimanded. The killings of German Jews immediately stopped for several months. All the expert witnesses agreed that this was the documented sequence.

76. It is accordingly the primary and most reasonable inference that there was a very direct connection between Himmler's arrival at Hitler's HQ and his sudden telephone call to Heydrich, ordering a halt to the liquidation of the Berlin Jews.

77. As to 5.94, Irving was entitled heavily to discount Wisliceny's ex post facto guess work. Wisliceny (a mass murderer, who was hanged after the war for his crimes) is speculating when he expresses his conviction that in late 1941, Hitler had "ordered the biological annihilation of European Jewry".

78. 5.120: Here the mathematics are out. As Irving stated in evidence, and Evans agreed, a pit of those dimension, would hold at most 1,500 corpses (not 7,000). Bruns stated there were "two or three" such pits. A pit three metres wide cannot be dug deeper than two metres, unless shored up, which these pits were not.

79. At 13.24 Gray J says of Irving's treatment of Bruns' evidence:-

"An objective historian is obliged to be even-handed in his approach to historical evidence: he cannot pick and choose without adequate reason."

80. Leaving aside the conduct of the Defendants' experts, who throughout dismissed whatever they did not like as euphemism, falsehood, forgery, self-serving or neo-Nazi, etc., the reason (which Gray J does not state) was simply that for the first part of Bruns's statement (mass shootings are to stop) there was contemporary corroborative evidence, for example the signal from Himmler, and the fact that the shootings did stop for many months. For the second part, the suggestion that: "the shootings are to continue more surreptitiously", there was not a shred of corroborative evidence.

81. As to 5.126, Irving's translation is taken word for word from the original Weidenfeld edition of Hitler's Table Talk (ed. Hugh Trevor Roper). Irving pointed out to Gray J that the Trevor Roper edition was not a slavish translation of the original German text, which only became available years later. The last sentence of this paragraph should be read in this context.

82. At 5.148 Gray J observes:-

"But he accepted, with some reluctance, that it does establish that Hitler authorised the liquidation of Jews in the East as if they were partisans."

83. This is a seriously inaccurate summary of Irving's evidence. Irving adhered to the view that the correct rendering of the German wording was that (certain unidentified) Jews were to be liquidated as partisans, not like or as if they were partisans.

84. Re 5.185: Hitler's adjutants was interrogated in 1945/46 et seq. on precisely this knowledge by the Allied interrogators, and their response was the same.

85. Re 5.193: Gray J fails to take into account the compelling argument that in his own private notes Himmler had no need to use euphemisms.

Goebbels' Diary entries for 27 March 1942

86. 5.150: Gray J's summary, viz. "Irving regarded Goebbels's diary entry for 30 May 1942 as constituting 'acres of sludge' not worth including in his book." is to be contrasted with what Irving actually said on Day 5 at page 54: "Acres of sludge, is it not? If I had to put all that into a book, the book would sink under its own weight."

87. That sets out the position of any author; Irving had to produce a book of economic size and readability. Gray J has omitted these overriding economic and publishing reasons for shortening a text.

88. 13.37 Gray J says:-

"I have concluded without hesitation that the manner in which Irving deals in Hitler's War (both editions) with Goebbels's diary entry of 27 March 1942 is misleading and unsupported by the circumstantial evidence."

89. These observations should be compared with Gray J's approach to the Schlegelberger Memorandum, which was dictated or typed by a lawyer and minister, Schlegelberger, at Lammers' (the head of the Civil Service's) dictation: that is "hearsay" (13.33). The Goebbels diary is a private diary note typed by junior civil servant Richard Otte at "Big Lie" propaganda minister Goebbels' dictation of alleged remarks by Hitler. Yet it is suggested that Irving ought to have quoted the diary at greater length, even though Goebbels himself uses the word wohl (omitted by Evans, who castigates Irving for selective quotation), stating that liquidation is probably happening, i.e. it is not a statement of fact, but of belief.


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