The Appeal Judgement

in the case of David Irving -v-Professor Deborah Lipstadt and Penguin Books

By Jonathan Goldberg QC,
Barrister, London

IT will be recalled that in Issue Number 24 of Justice for Summer 2000, I described the epic judgement of Mr Justice Gray in the Queens Bench Division of the English High Court of Justice, in which he concluded that the defendants Professor Deborah Lipstadt and her publishers Penguin Books were justified in having branded the famous historian David Irving a racist, a Holocaust denier, an anti-Semite, an apologist for Hitler, and most damningly, a deliberate perverter and distorter of historical evidence. This was the culmination of a sensational libel trial which had lasted many months in London in early 2000. The case and the judgement attracted enormous publicity around the world.

By contrast the judgement of the Court of Appeal which was handed down recently in late July 2001 has attracted almost no attention whatever. Yet it too merits consideration. In a written judgement of 34 pages the court refused David Irving permission to appeal. The appeal judges concluded that he had not demonstrated any real prospect of an appeal succeeding. The court reached this decision after a hearing of some 3 working days, at which Irving was represented by counsel, unlike at the original trial where he had represented himself against a distinguished legal team fielded by Professor Lipstadt and her publishers, The 3 judges of the full court echoed and approved the written reasons of the single appeal judge, Lord Justice Sedley, who had earlier refused Irving permission to appeal also, after considering the written papers only. The written reasons of Lord Justice Sedley also deserve consideration, and will be mentioned hereafter. The full court of 3 appeal judges consisted of Lord Justice Pill, Lord Justice Mantell, and Lord Justice Buxton.

Ironically all the judgements in this case from first to last can be found most conveniently set out on Irving's own website, www.fpp.co.uk. Under the title of "International Campaign For Real History" Irving's website is indeed fascinating stuff. It features a wide range of articles and publications from all over the world concerning this present litigation, together with details of Irving's busy future public speaking schedule especially in the United States, together with articles of historical interest on a wide range of subjects connected especially with the Nazis and the Second World War. But controversies such as the Jonathan Pollard case are also featured with a strong bias towards him never being released, alongside articles with such titles as "Wiesenthal Centre- The Latest Lies " and "Dossier on Disgraced Israeli PM Sharon" and various pro-Palestinian pieces.

It seems extraordinary that the author of this website should have invested such vast reserves of energy and money (and one must question whether the money funding this most beautifully presented and hightec of websites is his own!) in bringing his failed libel action, in order to seek to prove that he is not racist or anti-Semitic.

Photos of ultra orthodox Jews with black hats and spectacles and ringlets adorn the website at places of no clear relevance whatever, yet their intent is crystal clear. Quotations appear such as "Donations -- David Irving still needs your help to defend his career and reputation against the mudslide triggered by Professor Deborah Lipstadt and her Israeli Paymasters at Yad Vashem".

The well known historian Professor David Cesarani, the Jewish head of the Wiener Library, is described as Dr. David "Ratface" Cesarani, and extreme right wing views abound generally. The reader is even invited to attend a forthcoming historical convention in Cincinnati where Irving will be speaking, in order to discover whether Professor Lipstadt tried to kill him (and one assumes he means more than in the legal sense !). Nor has Irving accepted for one moment his defeats in the English courts, the latest of which it should be said, realistically marks the end of the road for this particular litigation. The website itself indulges in a kind of legal revisionism of its own, and the conclusions of the various English courts are attacked from every conceivable angle. Once again writings appear which purport to demonstrate that no large numbers of Jews were gassed at Auschwitz. In summary if one wants to see just how sophisticated and malevolent the contemporary faces of race hatred and anti-Semitism and historical revisionism really are, this website I suggest is an absolute "must".

To return however to the English courts, it is sad but perhaps necessary to have to record here that none of the Judges involved was of Jewish origin.

Lord Justice Sedley in his written reasons said he bore well in mind that for a professional historian to be branded a bigot and a falsifier placed a heavy burden on the defendants who sought to justify it. He pointed out that there was much about which two historians could legitimately differ, and differ angrily, without either of them meriting such a description. But he found no reason to differ from the trial judge in his finding that the applicant's very own character as it had emerged in the evidence was "the cement between the bricks". What might in another historian have been casual misreadings of the historical evidence, emerged in the applicant's case as "sedulous misinterpretations all going in the direction of his racial and ideological leanings". He pointed out that there is no law in England against Holocaust denial and that it is a fundamental liberty not only to be contentious but also to be wrong. He bore in mind also that anti-Zionism and anti-Semitism are not necessarily the same thing. Here however the applicant had himself invoked the law by suing his antagonists. He had issued a challenge which the Defendants had met. His denial that Auschwitz was a place of mass extermination was central to the case against Irving and he had been betrayed by his very own historical methods, notably his reliance on the discredited Leuchter report.

It will be recalled that Leuchter is an American, and a so-called "consultant on executions", who had advised several American prisons on their judicial execution procedures. He has no formal professional qualifications whatever. He had visited Auschwitz in 1988 to conduct certain quasi-scientific tests of his own, and had afterwards given "his best engineering opinion" that none of the facilities there were utilised for the execution of human beings. The only gassing which took place there with cyanide was to fumigate lice from clothing.

In accepting Leuchter's bogus science said Lord Justice Sedley, the applicant had demonstrated once again his willingness to sacrifice objectivity in favour of anything which would support his chosen form of Holocaust denial. Lord Justice Sedley noted that Irving had however succeeded in proving at trial that a small number of the allegations made against him by the defendants were untrue, in particular when the Defendants had claimed that he had a self portrait of Hitler above his desk, that he had once shared a platform with terrorists of the Hamas and Hizbollah movements, and that he had stolen certain valuable microfiche documents from Russian archives thus risking damage to them.

Nonetheless the trial judge was right to conclude as he did that these matters were trivial only, when set against the sea of more serious allegations which the defendants had succeeded in proving against Irving, and thus they could not further damage his real reputation. Lord Justice Sedley noted but dismissed Irving's suggestions that the expert witnesses ranged against him at trial by the Defendants had been paid excessive fees which destroyed their impartiality, and that Mr Justice Gray himself had been influenced in his judgement by a fear of adverse press comment.

It is worth stating in this connection that Irving's website maintains to this day a vicious campaign against the main expert witness who was called against him at trial, Professor Richard Evans, who is a distinguished Professor of Modern History at Cambridge University and who is in effect accused of corruption in the historical evidence about Hitler which he gave to the court.

In their single composite judgement in the full Court of Appeal, the three judges expressed fulsome admiration for the "comprehensiveness and style"of the judgement of Mr Justice Gray, which they noted had itself now received the unusual accolade of being published in book form without any further commentary, by Penguin Books.

In that form it ran to 350 pages. They did accept in theory the central argument of Irving. This was that in order to win, Professor Lipstadt and her publishers would need to establish not merely that the weight of the historical evidence was against the views he had expressed, but also that on the evidence available to him at the time he was writing, his views were wholly unreasonable and not ones which could honestly have been held by any rational historian with knowledge of the Third Reich.

It was further argued for Irving that he had never denied that the Nazis and their collaborators murdered millions of Jews. He had never sought to justify such conduct. He indeed accepted that after June 1941 a policy of murdering all Jews in occupied Europe had become State policy but only "at Himmler's level". Irving's central argument was that Hitler had been kept wholly in the dark about it however, by the insubordinate Himmler and Goebbels. In order to demonstrate his historical objectivity, Irving relied on the fact he had himself disclosed a conversation he himself held long afterwards with Himmler's brother, who had told Irving "that Heinrich was such a coward that he would never have done this without Hitler's orders".

The court found nonetheless that the trial judge had applied all the correct tests. He was justified in his conclusions that Irving had deliberately falsified and misrepresented the historical evidence time and again in his published works.

As Mr Justice Gray had rightly noted

"The issue with which I am concerned is Irving's treatment of the available evidence. It is no part of my function to attempt to make findings as to what actually happened during the Nazi regime. The distinction may be a fine one but it is important to bear it in mind".

The trial judge had correctly assessed the credibility and reliability of the expert historians called by the defendants. He was justified in his findings that Irving's published and spoken words directed against Jews, either individually or collectively, were hostile, critical, offensive and derisory in their references to Semitic people, their characteristics and their appearances. He was entitled to conclude that "the inference which is clearly to be drawn from what Irving has said and written is that he is anti-Semitic, and that he has on many occasions spoken in terms which are plainly racist" and likewise that Irving had associated to a significant extent with named individuals who were all right wing extremists.

Regarding Auschwitz, the appeal judges approved the conclusion of Mr Justice Gray (after his massive sifting of the historical evidence) "that having considered the various arguments advanced by Irving to assail the effect of the convergent evidence relied on by the defendants, it is my conclusion that no objective, fair minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews".

Regarding Kristallnacht (the events of November 1938 during which Jewish property throughout Germany was systematically ransacked) the trial judge was fully entitled to have concluded that Irving had deliberately twisted his sources and quoted them out of context in order to portray Hitler as being kept in the dark about these events.

He had done the same when writing about the shooting of the Jews of Riga in November 1941.

He had placed impossible weight on a minor document by a minor functionary from the German Foreign Ministry called the Schlegelberger Note of 1942, which attributed the following hearsay remarks to Hitler: "The Reichsminister informed me that the Fuhrer had repeatedly declared to him that he wants to hear that the solution to the Jewish question has been postponed until after the war is over".

Irving had referred to this at trial as "a high level diamond document" proving that Hitler was not party to the extermination of the Jews carried on by his underlings. But the judge had found that no reputable historian could possibly ignore the mass of contrary evidence, and he was persuaded by Professor Richard Evans that this note was just as likely to have been concerned with the complex problems thrown up at the time for the Nazis in deciding how to treat half-Jews (Mischlinge).

It is not within the scope of this short article to cite all the other instances in which Irving had distorted his historical sources, according to the judges, but the following example may be thought particularly telling.

In 1943 there were some 750,000 Jews living in Hungary. The Nazis pressured the Hungarian Government to deport them to camps but the Hungarians were reluctant to comply. Hitler met with Admiral Horthy, the Hungarian leader, on April 16th and again on April 17th 1943. (The Hungarians still refused to hand over their Jews thereafter of course and Hungary was subsequently invaded and occupied by the Germans). There was good historical evidence that at the first meeting on April 16th Hitler had sought to persuade Horthy to agree to expel the Hungarian Jews, but had however reassured him that there would be no need to kill them.

This evidence consisted of the minutes taken by officials of both sides at the meetings and which were clearly reliable. The following day on April 17th however, by contrast, both Hitler and Ribbentrop (left) according to these minutes had spoken to Admiral Horthy in uncompromising and unequivocal terms about their genocidal intentions in regard to the Hungarian Jews. In particular Hitler himself was recorded in these minutes as saying: "If the Jews in Poland did not want to work they were shot. If they could not work, they had to perish. They had to be treated like tuberculosis bacilli ... That was not cruel ... Why should one bear the beasts who wanted to bring us Bolshevism? Nations who did not rid themselves of Jews perished ".

In his book "Hitler's War" Irving had quoted the above remarks of Hitler, but had immediately followed them with the words:

"But they can hardly be murdered or otherwise eliminated," Horthy protested. Hitler reassured him "there is no need for that".

In other words, Irving had transposed remarks made by Horthy and Hitler in the first April 16th meeting, and had improperly added them to the account of the second April 17th meeting, in order to convey the false impression that Hitler was reassuring Horthy on their final meeting on April 17th that there was no need to kill the Jews of Hungary.

Irving's counsel had asked the appeal court to consider afresh whether this transposition might not have been merely innocent. The trial judge had concluded "Irving materially perverts the evidence of what passed between the Nazis and Horthy on 17th April" and the appeal judges saw no reason to doubt that conclusion. Numerous other examples of selective misquotation were cited by them from the judgement of Mr. Justice Gray in this same context. In conclusion, Irving had not persuaded the appeal court that the general conclusions of the trial judge were in any way unjustified. Indeed they agreed with the trial judge.

THE present writer permits himself the following despairing comments on this whole sad saga of litigation. We live as never before in an age of "spin". Reality exists nowadays at two levels. One is what actually happens. The other is the way it is portrayed by the propaganda machines and the media. We see examples of it every day in big things and small. Our politicians who should set an example are usually the worst offenders.

The truth is massaged and manipulated and distorted at every level by expert propagandists feeding the media whose appetite for stories is insatiable and greedy. It happens for example, each time a terrorist group employs an eloquent spokesperson, often an educated and moderate sounding woman, to be the acceptable face of portraying some such act as a bomb at a discotheque, as allegedly being a brave act of resistance in a war of liberation for occupied lands. But it happens no less I suggest when publicity hungry lawyers rush to give press conferences on the steps of the court outside court hearings, giving out exaggerated and one-sided accounts of their clients claims in a language and style which the clients probably could not even dream of. It is a mad roundabout upon which we are all embarked today and which nobody seems able to get off. "The medium is the message" for all of us it seems.

In such a world unhappily, it may matter little that five eminent English judges have painstakingly sifted through a mountain of legal and historical evidence in order to reach balanced and fair conclusions. Few will bother to read them, and those who do are likely by definition to be the sort of people who did not need to have their eyes opened to these events in any case.

What remains in the subconscious memories of the mass of people may more likely be the graphic images on Irving's website of gold-digging Jews who purchased expert testimony in order to manipulate the judicial process, but who will never (he proudly assures us in effect) break the indomitable and free spirit of this independent historian dedicated to the pursuit of historical truth, which for him includes an appreciation of Hitler's good name. The worldwide burst of publicity and propaganda which he has achieved may best explain why this sophisticated and dangerous man (supposedly made bankrupt by the costs of this brave fight for the truth) brought his libel case in the first place.

Related items on this website:

 Lipstadt trial index | related papers

 

Image (right) is from Sat3 Austrian Television channel: Spielberg's money crushes Irving