Real History in the British Court of Appeal

Posted Saturday, June 23, 2001

Friday, June 22, 2001 (London)

Day 3 of the Lipstadt appeal

In Court at 10:15 a.m. What a surprise, Prof. Richard Evans is back in the Courtroom all day; Prof. Lipstadt hisses at him as she walks, "You don't know what you missed yesterday!" I would be surprised if he is really unaware. I give Adrian Davies the stuff I have prepared during the night. He looks flattened by exhaustion. He deals with remaining points during the day, his voice gradually wearing out (packets of lozenges are brought in to fortify him).

Lord Justice Buxton is much sharper and more caustic than yesterday, while Pill LJ [the presiding judge] and Mantell LJ remain genial. Buxton says that my omission of the SS lieutenant Altemeyer's 1941 remarks (reported as hearsay by Bruns in 1945) are "on the face of it a most serious omission" and Gray had used it to attack my methodology. Adrian makes good points, but fails to impress upon the Court that the Bruns document is a 1945 hearsay item, whereas the 1941 decodes, just about the hardest evidence one can imagines, what Adrian calls the "factual matrix," invalidate what Altemeyer appears to be saying.

Mantell LJ puts to him, "If a man omits the last three words of 'I have stopped beating my wife with a cane,' that is not minor." Adrian retorts, after a moment's thought, "If witnesses show that the man has indeed stopped beating his wife, then the last words that are left out do not matter."

Goebbels diaries microfiches, researched by Mr Irving in their original boxes in the Moscow archives (above); a typical microfiche (below)
Coming to the Goebbels diary entry of March 27, 1942 -- I treated it at greater length in Goebbels than in Hitler's War of course -- Adrian reminds the Court that the diaries are a huge corpus of documents. The Court must recall that Goebbels is a pathological liar, and that the Schlegelberger document, coming a few days later, completely devalues the suggestion that, in that entry, Hitler was aware of or ordering a homicidal final solution as the defence suggests. To accept that view, the Court must first accept a whole series of propositions, the failure of any one of which invalidates the defendants' view.

Buxton snaps that I have not quoted "anywhere," the line that Hitler has remarked that "it is a struggle for life and death with the Jewish bacillus." I ruffle through the pages of Goebbels and find that very quote on page 388. Buxton appears unmollified by this proof that he is wrong. "The complaint is about Hitler's War, not Goebbels," he sniffs.

Lunch -- a bacon sandwich over the road; I offer a friendly bite of it to Don Guttenplan, then apologise, "Of course, you're not allowed to!" He looks injured. On the way back into Court at 1:45 p.m. I hear a voice loudly talking in Hebrew into a cellphone -- it turns out to be Lipstadt, waiting in the corridor.

The traditional enemies of free speech: everywhere, but nowhere -- paying, listening, bribing, monitoring, dictating from the wings.

In the Court every day is Sir Martin Gilbert; I compliment him on the technical presentation of his latest Holocaust study, which has very fine photo reproductions. I was shown a copy at the Chicago book fair earlier this month by the executives of Hulton/Getty when they came to my Stand; they had supplied the photographs. He has not seen it yet.

Pill, the presiding judge, seems more genial than ever. Once he concedes, "I am little surprised at the judge's conclusion", referring to Gray [right] in the lower Court. Mantell offers, "You are attempting to jump a four foot hurdle when it is only two feet high." Davies says, "Your Lordships would have to find that Mr. Irving's reading was 'utterly unreasonable.' Buxton interjects that Gray finds me guilty of selective quotation, and later he points that that Gray has used the word "pretext" that I had offered in saying something, which is a very harsh word.

Adrian makes good use of facts I had volunteered against my own case to Prof. Longerich -- the remark made to me by Himmler's brother Gebhard, years ago -- and my letter to The Times on Dresden casualties in July 1966. I am doubtful as to the weight they may carry, but Adrian says they have left a good impression. If he is right, I am rather perturbed that the Court can be swayed by such trivia. That appears to be the fault of the justice system all along.

Finally Adrian addresses two points of law: first the huge fees paid to the 'neutral" defence witnesses, so great "that they risk an appearance that they will be biassed in favour of the paying party." It would "predispose the recipients not to fall out with those paying them" The second point is that it is the task of the Court (Gray) and not the experts to come to conclusions as to the meanings of words. What is meant by "Holocaust denial," is not properly a matter for Evans, but for Gray J.

At 3:13 p.m. the Judges withdraw, and go into a room to deliberate. Adrian thinks at first they are just deciding to pack up early for the afternoon. But as the minutes pass and the absence lengthens, I have qualms: what if they just come back in and say that they have decided to refuse our application there and then -- then it is all over, with no possibility of appeal? Adrian says, "I think that's what they're going to do." He is half right.

As the judges come back in at 3:25 p.m. Pill LJ asks Richard Rampton QC, for the defendants, to address the Court on the law. Then he says that they have six questions for him to address in particular:

should post-publication events be taken into account by the Court?
what should the Court's approach be to the verdict of the Judge in a defamation action where there is no jury?
the concept of "Holocaust denial"
Auschwitz, especially the judgment paragraphs 13.77, 13.83
the Schlegelberger Note
the Goebbels diary entry for March 27, 1942

I ask Peter Laskey [my attorney] if that means they have accepted all the rest of our points and he says, "The opposite."

Rampton deals with the first four swiftly and scathingly, triumphant. The defence is entitled, he argues, to deal on general facts that are subsequent to the publication of a work complained of. Second, a judge acts as a jury in relation to Section 5 matters, as reputation is a jury matter, but a judge gives reasons for a decision where a jury does not. In this case Gray looked at what he found proved on motive, ideology, etc., and said to himself, rightly, that the damage done by unproved allegations is of no consequence.

As for "Holocaust denier," he says that of itself it is not defamatory, it is Lipstadt's use of the word "dangerous" that makes it so. He asks their Lordships to read Section 8 of the Judgment right through, stating when he now deals with the Auschwitz question that Mr Davies has plucked many paragraphs out of context. "The test would be what an ordinary dispassionate mind would make of the evidence seen as a whole."

He is still dealing with the "holes" on the Auschwitz roof as he finishes, producing the photos of the "smudges" and all the other stuff long since disproved by careful and unbiassed research, but stressing how well they match the drawings produced by the French artist David Olère. The references to "30x40cm" shutters on the architectural drawings confirm, he says, that the crematoria were homicidal (and Rampton spouts much more mind-numbing nonsense besides).

The Judges adjourn fifteen minutes early at 4:15 p.m., thank goodness; it meets again on Tuesday.

Adrian gathers up his things and turns round to say to me, "So on Tuesday we can at least go down with guns firing like the Bismarck." "Go down?" He says firmly and knowledgeably, "We're going down." He did not use the Daluege stuff I had worked so hard on, and much else we had prepared; we could not put into the Court any of the Crematorium II pictures, or any other new stuff. Rules of Court do not make it possible.

However we are going to put up a big fight on Tuesday still -- and then jump-start the action against The Guardian and Gitta Sereny, whatever the outcome of this one.

[

on Day 4]