Continued from Part
1 and Part 2
[endnotes
not yet keyed in]
 HEN
the Trial began in Number Eight court on
Monday, 26 January, 1970, I wrote:
I have great sympathy with the
Jury -- all look decent men and women,
whose shock must have been great when
Sir Frederick Lawton, the Judge,
elicited from Mr. David Hirst
Q.C. the news that the case was to
last four weeks.Hirst spent all day, five hours,
reading a long speech in a loud,
monotonous voice, and I coughed loudly
whenever he appeared to catch the
Jury's attention... Hirst tried
valiantly to delay the handing of the
twelve PQ.17 books to the Jury to read
until next weekend. Kempster and Duncan
[leading Counsel for Cassell's and
myself] thwarted this. Knowing that I was unlikely to give
evidence it was difficult for me to listen
quietly to some of the grosser accusations
mounted against me. I kept both leading
Counsel, sitting in the pew behind me, fed
with notes of which they made great use. I
recorded on the second day that Judge Law
ton appeared to favour the Defence, but
much to our consternation on the 28th he
announced that he was going to allow
Broome's claim for "punitive damages" to
go to the Jury (although it had not been
received until the 20th, and common-sense,
with which Lawton had previously indicated
he was adequately endowed, indicated no
basis for such a claim. ) On the 28th Broome entered the witness
box (Diary: "It is a tragedy that he was
too stubborn to talk to me in 1963! ") He
continually passed his tongue around his
lips, in a way that reminded me
distressingly of my father on his
deathbed. No matter: the words were pithy
and good news paper. David HIRST: Did Mr Irving
come to see you at your home in Chelsea
to look at your drawings?Captain BROOME: Yes. HIRST: What happened? BROOME: The first thing that I
remember Mr Irving saying to me was
something like, "Is it true that you
shot the German airmen that you picked
up from PQ.17?" HIRST: What did you say to that? BROOME: It made me realise in a
flash what this sort of book was going
to be like, and it made me feel very
angry. I was stunned by this exchange. The
Jury's hostility towards me was immediate.
I wrote to my leading Counsel, Colin
Duncan, "This is a particularly wounding
allegation and it must be countered." Duncan sadly replied that as we
intended calling no oral evidence, he was
not allowed to suggest Broome's memory was
wrong. On reflection, it seems to me that
Broome confused my question to him about
the identity of the two rescued enemy
airmen with a passage in the book (which
was not challenged in the trial), an
unpleasant episode when the destroyers had
opened fire on a crippled German aircraft
that had ditched ahead of the convoy, with
its crew struggling to get out. These are
the kind of tricks that a 70-year-old
man's memory will play. The last moments of Broome's evidence
did yield one bonus. Broome volunteered to
Hirst how he had obtained an an authorised
proof copy of the book. "It was lent to me
privately by ..." Hirst interrupted him
before he could say more, but I passed a
note to Kempster to inquire who the source
was. Michael KEMPSTER [for
Cassell's]: Can you tell my Lord
and the Jury who was the friend who
gave you a proof copy of this book?BROOME: It was only borrowed. KEMPSTER: Right . . . BROOME: I believe it was Godfrey
Winn. He added: "I am not absolutely
sure." I whispered "Bingo!" to my lawyer. But
none of the Press reported Broome's
disclosure, and in my diary I wrote next
day, "I am sorry to see that during
Broome's most damaging disclosures" --
among others, he had confessed under
cross-examination that all his own
writings about convoy PQ. 17 were
"rubbish" -- "the Press took no notes... I
hope they make more of the rest of the
cross-examination. The Press's influence
on the Jury cannot be
under-estimated." On the course of Broome's
cross-examination, I wrote, "The facts
were gradually elicited from Broome that
he admits turning [Convoy PQ. 17]
east earlier than 75š45'N, and knew he was
doing so; and that he knew of the
"withdraw" orders to the cruisers before
attaching his destroyers to them. "In the afternoon, our
chart-work was complete. Broome
admitted all Kempster's points, though
grudgingly. Hirst tried to object to
our chart and protested that the
original convoy route had not been
'disclosed' (it had)." On the sixth day, Colin Duncan [my
own Counsel] commenced his
cross-examination -- "slow, painstaking,
deferential, humorous and patient, but
with a concealed edge which twice reduced
Broome to awkward silence, realising he
had fallen into a gentle trap." The
Captain now agreed that although he
claimed the book meant he was "largely
responsible for or contributed extensively
to" the loss of Convoy PQ. 17, neither he
nor his destroyers figured in the book
after page 129 of a 337-page book, and
that in particular he was not mentioned in
the final chapter, Inquest. "Broome became very angry and impatient
with Duncan twice," I wrote, "and once he
was pulled up by the Judge for it. In
general, however, Lawton's interruptions
are still against us." I repeated this
sorrowful observation in my diary of the
ninth day. When Hirst concluded, Michael
Kempster, the tall, dark-haired
leading Counsel for Cassell's, with a
mellifluous, almost theatrical voice, rose
briefly and announced his election to call
no oral evidence. Seconds later, the words
were echoed by my own Counsel. Able and
experienced as David Hirst was, he may
have considered this a possibility; he
certainly did not welcome it, for the
order of the closing speeches would now be
reversed. The Court was now so familiar
with his voice, that a male Juror once
audibly confirmed his rhetorical fears
"that I am boring you with all these
details". Now he was called upon by the
Judge to begin his final speech at once.
Hirst asked for five minutes' adjournment;
the Judge allowed him ten. Hirst referred with some feeling to our
refusal to call witnesses. (Why should we
have? We considered the official documents
were quite enough. ) I recorded, "We were
accused of being 'willing to wound but
afraid to strike', and of much else. No
doubt worse is to follow tomorrow." This was no idle prognosis. It is a
piquant situation (but entirely
legitimate) that a barrister is acclaimed
for adopting views which may be foreign to
his own for a fee, and is afforded
protection from the Law however outlandish
the libels that he may utter in so doing;
whereas any historian guilty of adopting
public opinions for money, and of
libelling as a necessary part of that,
need rightly expect no quarter from
Society. Mr. Hirst's view of myself on
another occasion I had by chance overheard
at a legal meeting in the Middle Temple on
13 February 1969: according to my
shorthand note, he described my book
Accident -- the
Death of General Sikorski as an
"excellent book" and a "really solid piece
of research." But now a year had passed;
now it was Broome, not André
Deutsch, who was paying the fee. "At lunchtime", I wrote in my diary on
11 February 1969, "my Q.C., Duncan, had
asked me whether I felt it proper that
[my young wife] Pilar should be
present, as she might find some of it
painful." Afterwards, Hirst shrilled at
the Jury, "I shall have cause to say to
you without mincing my words that Mr.
Irving has told Lie upon Lie in the
preparation of this book and in the book
itself." Next day I commented, "Needless
to say the press reports Hirst's
allegations that I am a Liar extensively.
He repeated the allegations again today,
but again failed to produce any evidence
in support." Two days later, he sat down, and the
waters were becalmed. Michael Kempster
spoke. I felt he rather missed some of the
points in our attempted justification (in
particular, Kempster seemed unwilling to
bring it home to the Jury that no officer
can genuinely believe that a convoy moving
at 8 knots can traverse the fifty miles
between two estimated positions in 4 1/2
hours, as Broome indicated, in his 1942
report to the Admiralty, that he had
believed.) But on the laws of libel
Kempster was very sound, and the Judge had
to concede this to him. My own Counsel, shrewd, deceptively
affable, spoke long enough on the main
issues in his gravelly voice to suggest
that the supposed defamations were not
defamatory at all, and that those passages
which were untrue (once I had written
mistakenly "Londonderry" for "Scapa Flow")
were not defamatory either. I recorded
that evening, "He commands great respect
and attention throughout his speech, and
Miss Alexander (my solicitor) and I am
unanimous that -- however the final
outcome -- we could not have chosen a
better Leader." After Duncan concluded, he
caught sight of a small colour photograph
of my daughters in gypsy costume, and
kindly said, "With children like that, who
cares about libel actions !" This was my
view too. On the Friday evening, I hoped Duncan's
silver prose had won the day for us. On
Monday morning, however, the Judge began
his summing up. By noon I put our chances
at only fifty-fifty; within an hour I knew
we could not win. By nightfall I assessed our chances as
only one in five. Seldom can the directions to a Jury
have been clearer. (The summing-up was
mimicked
satirically in Private Eye, which was
widely circulated in legal circles a few
days later.) Mr. Justice Lawton twice
warned the Jury not to hold it against the
Defendants that they had not called oral
evidence: "Do not be carried away by Mr
Hirst's numerous references to the fact
that the defendants have not seen fit to
go into the witness box." But in his
summing-up he himself referred to this
("You must not Infer facts from Mr
Irving's absence from the witness box...")
no fewer than fourteen times. On the seventeenth and final day, my
diary reads: "Judge Lawton resumed his
summing up. At one stage, when he repeated
Broome's fairy story about my first
interview with him, I tried to get up and
walk out, but was barred by Miss
Alexander's colleague, so had to sit the
torrent of abuse out." Very early on, Mr Justice Lawton
reminded the Jury that Captain Roskill "an
eminent naval historian"; Broome, "a
distinguished retired naval officer... and
obviously a man of standing in the world";
Kimber, "A reputable and experienced firm
of publishers "; and not least Lord
Justice Winn, "a distinguished legal
figure", believed the book contained
libels. Having thus dwelt upon their
qualifications, he warned the Jury to
disregard their views. ("They may all be
wrong. After all, with the exception of
Lord Justice Winn, none of them are
lawyers!") The inference was plain. It may be that if you look at
all these documents together the
picture which comes out is a picture of
an arrogant-minded young man who just
would not listen to other people...There is a large amount of evidence
for you to consider against Mr Irving
on the problem of punitive damages...
There is some evidence which in the
absence of any explanation from Mr
Irving might lead some of you to take
the view that he is not altogether an
attractive young man. He read out my private letter of
warning to Donald McLachlan, and
commented. "If there is anybody who is a
slippery and fly character there, you may
think it is Mr Irving, trying to inveigle
this retired naval officer into a position
where he could not complain afterwards if
something appeared in the book which he
thought defamed him. I mention this
matter, Members of the Jury, because it is
very important that you do not award
punitive damages because you think that Mr
Irving is rather an unattractive young
man." Then there is another entry in
this daybook kept by Mr Irving, under
the date 13 October 1966 -- an
unattractive entry you may think. "Re
Knight's Move showed de Salis the
Master Copy ... I said The Knight's
Move was a book with a difference, as
all men were shown to be cowards." Lawton invited the Jury to compare this
with my letter to Captain Lichfield, in
which I wrote, "My main theme, and I hope
it comes out in the end is the
extraordinary gallantry of some individual
men." Again Lawton's inference to the Jury
was clear. On one central issue, whether the book
was justified in referring to Broome's
"disobedience" of orders, the Judge stated
it was admitted by Captain Broome that he
received signals from the Admiralty and
Admiral Hamilton, "and he deliberately
elected not to comply with them." But here
too he gave clear direction to the Jury:
"If Mr Irving has not properly understood
naval usage and has made the mistake of
calling instructions 'orders' when the
Royal Navy would not regard them as
orders, then he writes at his peril. You
see, he has not sought to apologise for
what he has done... and that might have
made a difference in your view, or it
might not." Twenty minutes later he again
said, "If Mr Irving did not grasp that
when he came to write this book, well,
that is his mistake and he may well have
to suffer for it." Our defence (that
Hamilton had himself referred to them as
orders, and that by previous signal from
his C-in-C he was expressly empowered to
issue such orders to Broome) was not
mentioned in the summing-up. At the conclusion, I knew how Mayor
Goerdeler of Leipzig must have felt
when arraigned before Judge
Freisler in Berlin: impotent, angry,
and (perhaps wrongly) convinced of my own
rectitude, I reflected that at least
Lawton had left me my belt to hold my
trousers up. My brother, an R. A. F. Wing
Commander, pushed his way through the
crowd as the Jury retired and cruelly
misquoted Voltaire's appraisal of
Admiral Byng's execution: the
judge's purpose had been "pour
encourager les auteurs." On one issue,
Lawton had counselled moderation, but with
good cause. Fearing an appeal against the
verdict he pleaded with the Jury not to
give largess: "You are asked to give
Captain Broome compensation." Even then he felt it proper to mention.
"It would be intolerable if people found
themselves being punished because they did
not appear to be pleasant people." After five hours' argument, however,
the Jury returned and announced
compensatory damages of £15,000, and
punitive damages of £25,000 -- the
biggest libel award in legal history (with
one exception, reversed in the Court of
Appeal). The foreman, a plumpish lady
architect who had dutifully filled an
exercise book with notes throughout the
trial, blushed as she spoke the figures.
The Judge, I am told, turned white. Mr
Godfrey Winn, who had attended the whole
last day in person, conferred briefly with
Broome (to whose lawyers he had also
written letters during the trial) and then
withdrew. * HATEVER
the purpose of this particular trial,
fundamental questions remain. What private
author can contemplate an initial legal
bill of even eight hundred pounds, if he
believes what he has written is true and
refuses to be intimidated? Let alone an
eventual defence bill of eight thousand
pounds or more; or if he loses, a bill for
£80,000? A wealthy personality, who
feels himself affronted by a book, can
prima facie easily suppress it, true or
false, merely by threat of action. Is it really the object of the
Defamation Act that only the wealthier
authors should feel free to write
uncomfortable truths? And is it right that
individuals should avail themselves of the
Courts to pursue private campaigns of
retribution against authors of whose
general views they disapprove? Meanwhile The
Destruction of Convoy PQ.17, the
fruit of eight years' work, narrating the
stories of three hundred gallant seamen,
as they told them to me, has vanished
without trace. Cassell's again approached
Broome after the libel action, and asked
him to identify the errors and approve
amendments, so that the full story could
finally be published. For a third time
Captain Broome refused.  Outside the
courthouse, the verdict just announced,
David Irving (left) takes Captain
Broome's hand and shakes it: "No hard
feelings," he says. |
write
to David Irving