Defendants'
Submissions (continued) Hitler's meetings with Admiral Horthy:
G90-97 [5] 33. The Grounds make no mention of the judge's
adverse conclusion as to Irving's treatment of
Hitler's meeting with Antonescu (J13.43-44). It is
therefore assumed that Irving accepts it. 34. As to the meetings with Horthy (there were
two): (1) the judge did not overlook the
point canvassed at G91: see J5.213;(2) the point made at G92 and G93 (and G66),
besides being trivial, is a bad one. A
retrospective approach is logical, normal for
historians, and wholly unobjectionable: see the
opinion of Longerich, recorded at J6.92. For its
application to this issue, see J5.201. (3) G95 reveals no basis for doubting the
correctness of the judge's findings which are
quoted in G94. The fact is, as Irving must have
known, that on 16 and 17 April 1943, the Warsaw
uprising was still 2 or 3 days away (J5.205).
Moreover, although it was common ground that on
17 April Hitler mentioned the Allied bombing,
this paragraph suppresses the fact, as did
Irving in Hitler's War, that Hitler is recorded
as having said that he regarded the bombing as
'irritating, but wholly trivial' (ibid). (4) G97 proposes that Irving's transposition
of Hitler's palliative remarks on 16 April (see
G96) to 17 April was 'accidental'. There is no
warrant for this in the evidence given at trial,
and it is anyway not credible, given Irving's
knowledge of German and his acceptance of the
accuracy of the record of the meeting on 17
April 1943 made by Schmidt (J5.211). The
paragraph also suggests that the transposition
'makes no difference'. This is absurd; as the
evidence showed, when the relatively gentle
approach adopted by Hitler and Ribbentrop on 16
April failed, they resorted the next day to a
much harder line (J5.203, J5.204, J5.206).
Therefore, Irving's transposition of Hitler's
relatively gentle remarks of 16 April to the
meeting on 17 April, persisted in even when the
error had been drawn to his attention (J5.212),
must have been deliberately designed, as the
judge found, to water down the brutal effect of
what Hitler and Ribbentrop had actually said on
17 April. This conclusion is fortified by
Irving's deliberate suppression in the 1991
edition of Hitler's War of Hitler's repellent
analogy at the 17 April meeting between the need
to kill animal pests and the need to kill Jews
(J5.204, J5.207, J13.44). Once again, the Grounds fail to address the true
substance of these falsifications, their obvious
gravity, and their place in the pattern of Irving's
attempts to exculpate Hitler. Himmler minute of 22 September 1942:
G98-99 [6] 35. G98 and G99 in fact refer to this document,
not to the note of 10 December 1942 under which
they appear (which is dealt with below). It is true
(G99) that Irving included the whole of the minute
in Hitler's War 1991, but it is quite untrue that
he left his readers to 'make up their own minds',
because he introduced the minute (which he
mistakenly dated 17 September) with the words
'Himmler meanwhile continued to pull the wool over
Hitler's eyes'. There was, as the judge found
(J13.40), no historical warrant for this obvious
invention (rather the contrary). The Grounds make
no attempt to deal with this point, nor with the
broader consideration that this is yet another
falsification by Irving whose tendency is to
exculpate Hitler. Himmler's note for a meeting with Hitler on
10 December 1942: G100 [7] 36. The first sentence of G100 is wrong. In
Hitler's War (1991), Irving suppressed the crucial
contrast between the likely fate of the 10,000
well-to-do Jews and that of the 600,000 who were to
be deported (J5.196, J13.41). The second sentence
of G100 is irrelevant. The liquidation of the Jews of Rome: G101
[8] 37. Although the words in parenthesis at the end
of the passage quoted in G101 were included in the
1977 edition of Hitler's War, this paragraph of the
Grounds ignores the facts that: (1) the words 'regardless of Hitler's order'
were unwarranted, since, as the judge found
(J13.45), the evidence , objectively analysed, did
not support the assertion that Hitler intended that
the lives of the Roman Jews should be preserved
(rather the contrary); and (2) the ultimate fate of the Roman Jews was
suppressed entirely in the 1991 edition of Hitler's
War (p590). Himmler's speeches of 6 October 1943 and 5
and 24 May 1944: G102-103 [9] 38. G103 ignores: (1) the words used by Himmler on 5 and
24 May 1944 (J5.223 and J5.224), to the effect
that he had carried out the destruction of the
Jews under orders (which, in Himmler's case,
could only have come from Hitler);(2) the judge's decisive rejection of
Irving's fanciful explanations for Himmler's use
of those words; and (3) the fact that in the 1991 edition of
Hitler's War Irving completely suppressed the
speech of 5 May 1944 (which makes reference to
'this soldierly order'). Ribbentrop's evidence in his Nuremberg prison
cell: G104-7 [10] 39. G107 misses the point: whether or not the
words used by Ribbentrop, which are set out in
G106, were 'speculation' or, on the contrary, the
expression of a well-founded belief, no
dispassionate, fair-minded historian would simply
suppress them as Irving did. As the judge found
(J13.48), such selective quotation was a breach of
Irving's duty as an historian, the more so, since
as Irving accepted (J5.239) it was deliberate. In
addition, it was, as ever, designed to exculpate
Hitler. What documents had Hitler actually read?
G108-110 (and 47(1)) 40. The relevant parts of the judgment are
J6.32-38 (relevant parts of Defendants' case);
J6.46-59 (Irving's response); J13.56-58 (judge's
findings). G108 and G109 give selective quotations
from J13.57, which needs to be read in its
entirety, together with the other paragraphs noted
here. 41. As those paragraphs in the judgment show,
the first sentence of G109 and the whole of G110
are simply wrong: (1) there was ample evidence that
Hitler was kept fully informed, at his own
request, of the murderous activities of the
Einsatzgruppen.(2) Irving accepted in cross-examination not
only that it was 'highly likely' that report No
51 was shown to Hitler (J6.58), but also that
the massacre of Jews in the Ostland was carried
out on the authority of Hitler and that 'there
had been a systematic programme for the shooting
of Jews and others of which Hitler was aware and
which he approved' (J6.46). 42. It is true that Irving later sought to
retreat from those concessions (J6.47-J6.59), but
the judge was perfectly entitled, in the light of
all the evidence, to reject Irving's restated
position and to hold that Irving's concessions
'were rightly made' (J13.57). (The assertion in
G47(1) that Irving has 'never denied that the Nazis
and their allies committed systematic mass murder
of Jews' in the East is untrue: see, for example,
J8.19, J13.58, and 13.96.) 43. It follows that these paragraphs provide no
basis for attacking the judge's finding (J13.58)
that Irving was guilty (once again) of
misrepresenting the historical evidence. And it is
to be noted that the misrepresentation was once
again designed to exculpate Hitler. Reichskristallnacht: G168-178
[11] 44. As a reading of those paragraphs of the
judgment shows, the criticisms of the judgment made
in these paragraphs of the grounds are trivial
and/or irrelevant, making no attempt to address the
many trenchant findings against Irving which the
judge made on both parts of this topic (see
J13.15-J13.20), all of which powerfully demonstrate
Irving's persistent tendency to falsity history in
order to exculpate Hitler. 45. G171 refers to a document which was not
disclosed by Irving until after the evidence at
trial had concluded and, more important, which
never formed any part of the source material for
Irving's published statements about Hitler's part
in the events of Reichskristallnacht which were so
heavily criticised by Evans and the judge. 46. G178 is wrong: the judge was provided by the
Defendants with documentary evidence that the
broadcast was made during the afternoon of 10
November 1938, with the formal order to stop being
issued at 4pm. The only 'evidence' which Irving
gave in rebuttal of this was to state that he had
been informed by a friend of his, Ingrid Weckert
(as to whom, see J10.20, J13.115), that the
broadcast had begun in the morning. Hitler's Trial in 1924: G179-181
[12] 47. Again, these paragraphs fail to address the
substance of the judge's (relatively mild)
criticisms of Irving, whose chief significance is
that they confirm that Irving has used every
opportunity to bend the evidence in Hitler's
favour. The Berlin crime statistics for 1932:
G182-183 [13] 48. G182 is irrelevant: Irving did not produce
the material referred to at trial and the judge
anyway made no finding about Interpol. G183 is
inconsequential. The fact is that Irving relied
unhesitatingly on an obviously unreliable source
(J13.13), whose figures, exaggerated for propaganda
purposes, Irving did not bother to check against
the official statistics and then himself further
exaggerated (J5.34). Irving said that he had also
used Kiaulehn and Wieglin, but since he did not or
could not produce them in court, and given his
proven habit of misrepresenting and falsifying his
sources, the judge was quite entitled to be
sceptical about whether they justified Irving's
reliance on Daluege. The bombing of Dresden: G184-188
[14] 49. The relevance of this issue is explained in
J4.4, which Irving does not apparently challenge.
It was therefore in no sense a 'side issue', but
one which provided a valuable opportunity of
assessing Irving's integrity as an historian on a
topic unconnected with his Hitler-related 'chain of
documents'. In the result, the judge's conclusions
on this topic (see J13.118-126) properly led him to
the further conclusion (at J13.141) that Irving's
deliberate and persistent exaggeration of the
Dresden casualty figures has enabled him to make
(wholly false) comparisons between the numbers
killed in Allied bombing raids and the numbers of
Jews killed in the camps. 50. The judge's findings on this topic, based on
a painstaking review of the evidence, are untouched
by these paragraphs of the Grounds, which do not
address the substance of the judge's findings, nor
the totality of the evidence on which they were
based (which included the matters referred to in
G187) 51. It is wrong (G184) that this issue was
introduced by the Defendants in November 1999: it
formed part of the Defence served in February 1997;
it was dealt with by Irving in his Reply, served in
March 1997; and it was one of the topics dealt with
in Evans' report, served in July 1999. It is also
wrong (G188) that the Defendants' criticisms and
the judge's findings related only to Irving's use
of material available to him in 1960-1963: see
J11.19-11.28 and J13.119-13.124. Auschwitz - General: G111-G167 52. There were two respects, and two respects
only, in which this issue was relevant at
trial: (1) It was the Defendants' case 'that there is a
substantial body of evidence, from a variety of
different sources, which should demonstrate to any
fair-minded objective commentator that gas chambers
were constructed at Auschwitz and that they were
used to exterminate Jews on a massive scale' (J7.6;
see also J7.15). (2) It was also the Defendants' case that Irving
was a Holocaust denier and, in particular, that he
had repeatedly denied the existence of gas chambers
at Auschwitz without having any good grounds for
doing so (J7.7; see also J8.15-17). 53. The essence of the Defendants' case was that
there was 'a 'convergence' of evidence which is to
the ordinary, dispassionate mind, overwhelming that
hundreds of thousands of Jews were systematically
gassed to death at Auschwitz': J13.72, which also
shows that the judge fully appreciated the
significance of this convergence (see J7.75,
J7.76). 54. In the result, having considered all the
evidence, including the explanations and counter-
arguments of Irving, the judge came to the
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' (J13.91). This decisive feature
of the judge's finding on Auschwitz is ignored in
these paragraphs of the Grounds. 55. Sixteen of Irving's denials of the existence
of gas chambers at Auschwitz are set out in J8.17.
On the basis of that evidence, the judge was
enabled to conclude (J13.95): 'Not only has he [Irving] denied the
existence of gas chambers at Auschwitz and asserted
that no Jew was gassed there, he has done so on
frequent occasions and sometimes in the most
offensive terms' 56. Moreover, the foundation of Irving's denials
about Auschwitz, and for a long time their only
foundation, was the so-called Leuchter Report,
which he first read in April 1988 (J7.77 - J7.90).
The Defendants, principally through van Pelt,
sought to show that the Leuchter Report should be
dismissed in its entirety as being flawed and
unreliable (J7.113-117). In the event, in
cross-examination, Irving accepted the validity of
most of the Defendants' criticisms of the Leuchter
Report (J7.114, J13.79). Thus the judge's damning
conclusions at J13.80 as to the significance of
Irving's reliance on the Leuchter Report was
inevitable.. 57. In the result, therefore, the Defendants
succeeded on the only two areas of the case in
which Auschwitz was relevant. The Grounds reveal no
basis on which the judge's findings on these two
issues could be disturbed. Auschwitz and the other extermination
camps: G114 58. This paragraph is selective and misleading:
the reason why less time at trial was spent on the
other camps (Chelmno, Semlin, Belzec, Sobibor and
Treblinka) than on Auschwitz was that Irving was
driven in cross-examination to concede, on the
evidence, both the purpose of the camps (systematic
extermination) and (so far as it mattered) the
scale ('considerable') on which that purpose was
carried out: J6.72, J6.106, J6.109, J6.110, J6.111,
J13.63. It therefore became unnecessary to
investigate the operation of these camps in any
great detail. Accordingly, the judge's finding of
which complaint is here made was entirely
justified. Auschwitz - the orthodox historical
consensus: G115-123 59. The relevance of these paragraphs is not
understood . The orthodox historical consensus is
that the Nazis deliberately killed about 1.1million
Jews at Auschwitz, mostly by gassing: J8.22 Auschwitz - the eyewitnesses (general):
G124-128 60. The points made here are trivial and, in
places (G126-127, G128), unsupported by any
evidence given at trial (mere assertions put by
Irving in cross-examination, unless accepted by the
witness, are not evidence) . Moreover, these
paragraphs misrepresent the significance which the
judge attached to the eyewitness evidence: see
J13.72, J13.91, referred to at 53 and 54 above, and
in particular, J13.77, where the judge made it
clear that the value of the eyewitness accounts is
the extent to which they corroborate each other and
are consistent with the documentary evidence, there
being 'no evidence of cross-pollination having
occurred' (see also J7.75). - The eyewitnesses - Marie Claude
Vaillant-Couturier: G129-133 [15]
61. The only paragraphs in this section which
call for comment are G132 and G133. Attached are
copies, with the material passages highlighted, of
(1) the relevant page of Judge Biddle's note of Mme
Vaillant-Couturier's evidence and (2) Irving's own
note of this page, made at Syracuse University, New
York, on 11 August 1988, two days before his
remarks in Toronto noted at J5.241. In the light of
these documents, both of which were in evidence at
trial, the judge's findings at J13.49 were
inevitable and the comments made in these
paragraphs of the Grounds valueless (and, in the
case of G133, unsupported by any evidence given at
trial). - The eyewitnesses: Kurt Aumeier
62. The criticisms of Irving contained in J13.50
are not mentioned anywhere in the Grounds. The
Defendants assume therefore that Irving accepts
them. Auschwitz - the Bischoff document:
G135-138 63. As to G135 and G136, the judge was right and
G136 is wrong: see, for example, J6.51-6.52 (the
Müller document). G137 and G138, besides being
inconsequential, are misleading: the judge took
full account of Irving's objections to the document
and van Pelt's reasons for believing it to be
authentic, and concluded, as he was entitled to do,
that van Pelt was right and Irving wrong (J7.106,
J7.129, J13.76). In reaching his conclusion on the
authenticity of the document, the judge rightly
said (J13.76): 'it does not seem to me that, despite
its unusual features, a dispassionate historian
would dismiss it out of hand, as Irving did, as
a forgery' (emphasis added). The Cavendish-Bentinck Memorandum:
G139 64. It is not understood what criticism of the
judgment G139 is intended to make. The judge was
well aware of the document (J8.35), but decided, in
the light of all the evidence (recited at
J8.30-35), that Irving's repeated assertions, set
out at J8.29, that the gas chambers were a
propaganda lie invented by the British was not
supported by the evidence (J13.99). Camp commandant Höss's daily cypher
reports to Berlin: G140-G145 65. See J7.103, J7.130, J8.21 (whole) and
J13.87-89, which show that a principal reason for
the judge's rejection of Irving's argument in this
area (ignored in these paragraphs of the Grounds)
was that the Jews who were gassed on arrival at
Auschwitz (the vast majority) were never registered
by the camp authorities and so, being unidentified
and uncounted, could not be expected to appear in
any cypher messages (even if the strict rule of
secrecy as to the gassings had not anyway prevented
it). By contrast, deaths by illness, shooting and
hanging would be the lot of inmates, who were
registered. Therefore, the reasons why the deaths
by gassing were neither recorded nor, in
consequence, communicated by cypher were indeed, as
the judge said, 'obvious'. 66. G145 is a non sequitur, based on a
misrepresentation of the judge's findings (see the
paragraphs in the judgment noted in 65 above). Gray J's observations: G147-149 67. These paragraphs are inconsequential,
because the judge's observations have been shorn of
their context: see paras 52-54 and 60 above (the
judge's attribution of the incineration document to
Müller instead of Bischoff was a slip of the
pen, corrected in court on 11 April 2000). Morgue 1 at Crematorium II: G150-156 68. G128 and G154 attribute to van Pelt a
concession he did not make: see J7.92, J7.120,
J13.83. Van Pelt's evidence was that the
fragmentary remains of the roof do not allow firm
conclusions to be drawn. 69. If Irving had thought the holes in the roof,
or their absence, important, he would surely have
gone to the trouble of obtaining evidence about
this question. But he did not do so. He himself has
never been to Auschwitz, he called no witnesses who
had, and the anonymous snapshots he produced in
court were wholly inconclusive. Thus, as the judge
found, Irving's thesis as to the holes in the roof,
unsupported by any affirmative evidence, could not
stand in the face of the overwhelming cumulative
effect of the evidence adduced by the Defendants
(see J13.83, not J13.84, and J13.91). It follows
that there is nothing in the least 'astonishing'
about the judge's finding which is quoted in
G155. 70 In any event, these Grounds entirely ignore
the fact that although Irving had been denying the
existence of the gas chambers at Auschwitz since
1988, largely on the basis of the Leuchter Report,
he did not raise the question of the holes in the
roof until late 1998 (J7.120, J13.81-82). The cyanide stains: G157-162 71. G157 has already been dealt with at 19
above. Moreover, Irving made no attempt at trial to
challenge van Pelt's reliance on the chemical
analyses of others (see below). G158-162 are
selective and misleading. They omit to state: (1) that the concentration of hydrogencyanide
required to kill humans is approximately 22 times
lower than that required to kill lice: J13.79 (2) that in 1945, the forensic laboratory in
Cracow carried out an analysis of, firstly, zinc
covers removed from the buildings at Birkenau
identified as gas chambers and, secondly, 25.5kg of
human hair recovered from the camp. Both were found
to contain traces of cyanide: J7.22. (3) that in 1990, using sophisticated analytical
techniques, Professor Markiewicz, Director of the
Forensic Institute at Cracow, analysed samples
taken from the various buildings identified as gas
chambers and found traces of cyanide compounds, in
varying amounts, in all of them: J7.73-74 and (4) that Roth's analysis of Leuchter's samples
also showed traces of cyanide compounds in the
samples taken by Leuchter from the buildings
identified as gas chambers - although, as was to be
expected (see (1) above), in significantly smaller
amounts than those taken from the delousing
facilities: J7.82. Those findings, ignored in the Grounds, provide
powerful corroborative evidence of the use of the
relevant buildings as homicidal gas chambers. Coke consumption in the crematoria:
G163-167 72. These paragraphs suffer from a single fatal
flaw: they omit to state the reason why van Pelt
felt able to conclude, and the judge to accept,
that the quantity of coke per corpse required at
Auschwitz was no more than 3.5kg. The incinerators
were operated continuously, and several corpses
were burnt together at the same time in multiple
ovens, so that the incinerators were to a large
extent self-fuelling (J7.125, J13.90). Save for his
challenge to the authenticity of the Bischoff
letter (as to which see 63 above), Irving did not
seriously dispute van Pelt's reasoning or the
evidential basis for it. 73. It follows that the argument based on a
comparison between Dresden and Auschwitz which is
advanced in G166 and G167 is false: Auschwitz had
enormous, multiple-corpse, continuous-incineration
crematoria; Dresden did not. Extremist associations: G189-190 (with
G35-G41) 74. The meaning which the Defendants had to
justify in order to succeed on this issue is set
out at J2.15(iv), which, despite G36-G40, is a
defamatory meaning: any ordinary, right-thinking
member of society would think worse of a man who
had allied himself with 'extremist and anti-semitic
groups and individuals' (the more so if, as he must
be assumed to have done, such a person had read the
whole of the relevant context, expressed here by
meanings (i) to (iii): see Charleston v News Group
Newspapers Ltd [1995] 2 AC 65, 70 per Lord
Bridge of Harwich.) 75. G35 is not understood. The Defendants had
from the outset sought to justify Irving's
extremist views and associations (J2.12(ii)) and in
November 1999 served a revised statement of case to
which Irving raised no objection (J4.3) and which
made perfectly clear what they were setting out to
prove on this part of the case. In the result, the
Defendants succeeded in proving the truth of the
first part of the meaning set out at J2.15(iv), but
not the second (which they made no attempt to do):
J13.112-115. In any event, the evidence of Irving's
right-wing extremist associations and activities
was directly relevant to proof of his motives for
falsifying history: J13.160-163. 76. The first sentence of G189 is a travesty of
the evidence. Irving never suggested that his
close, long-term associations with, and frequent
appearances and speeches at meetings and rallies
organised by, extremist neo-Nazi, anti-semitic and
racist groups and individuals had anything to do
with historical research: nor, on the evidence,
would such a claim have been credible if it had
been made: J10.4-31; J13.109-115. 77. G190 may be strictly correct ('emblems' or
'insignia' might have been more accurate), but it
is inconsequential. What matters is that the rally
in Halle, which Irving addressed from an open-air
scaffold, was, on the evidence of the
video-recording, quite obviously a neo-Nazi event,
to which Irving had been invited by his neo-Nazi
friend Ursula Worch (see J10.12, J10.30, J13.113,
where, ignoring the references to 'uniforms', note
the references to Nazi salutes and slogans, such as
'Sieg Heil', which Irving does not dispute). Racism and anti-semitism: G191 78. It is agreed that these matters went only to
motive: J9.1, J9.2, J13.160-163. In the light of
the judge's devastating overall findings on
justification, the Defendants do not respond to the
tendentious comments in G191, save to observe that
Irving's anti-semitism and racism were proved
beyond doubt: J9.1-21, J13.100-108,
J13.160-163. The order made on 5 May 2000 79. On 5 May 2000, Gray J ordered Irving to pay
£150,000 by 16 June 2000, on account of the
First Defendant's costs. The judge had regard, in
making that order, to the fact that Irving intended
to apply for permission to appeal (he granted the
First Defendant permission to apply for a further
payment on account of costs in the event that
permission to appeal was refused). Although the
judge refused to order a stay, Irving has paid
nothing. There is no good reason for Irving's
failure to pay: Gray J noted in his judgment of 5
May 2000 (page 12) the absence of any evidence as
to Irving's means (including the availability of
funds from third parties). Although the application
for permission to appeal asserts financial
hardship, Irving has provided no evidence in
support. There is no good reason why the Court of
Appeal should grant a stay of the order. - Richard Rampton QC (for both
Defendants)
- Heather Rogers (for the First
Defendant)
- Anthony Julius (for the Second
Defendant)
- 22nd September 2000
- (Second version: 3rd October 2000)
Endnotes: continued 5 See J5.199-201 (introduction);
J5.202-207 (Defendants' case); J5.208-214
(Irving's response); J13.42-44 (findings).6 See J5.187 (introduction); J5.188-190
(Defendants' case); J5.191-193 (Irving's
response); J13.39-40 (findings). 7 See J5.194 (introduction); J5.195-6
(Defendants' case); J5.197-8 (Irving's
response); J13.41 (findings). 8 See J5.215-7 (introduction); J5.218-220
(Defendants' case); J 5.221 (Irving's response);
J13.45 (findings). 9 See J5.222-224 (introduction); J5.225-228
(Defendants' case); J 5.229-230 (Irving's
response); J13.46 (findings). 10 See J5.235 (introduction); J5.236-238
(Defendants' case); J5.239 (Irving's response);
J13.48 (findings). 11 See: (1) Reichskristallnacht J5.37-39
(introduction); J5.40-64 (Defendants' case);
J5.65-72 (Irving's response); J13.14-18
(findings).(2) The aftermath of Reichskristallnacht:
J5.73 (introduction); J5.74-83 (Defendants'
case); J5.84-89 (Irving's response);
J13.19-20 (findings). 12 See J5.17-19 (introduction); J5.20-25
(Defendants' case); J5.26-28 (Irving's
response); J13.12 (findings). 13 See J5.29-30(introduction); J5.31-34
(Defendants' case); J5.35-36 (Irving's
response); J13.13 (findings). 14See J11.1-11.55 (the parties' respective
cases) and J13.116-127 (judge's findings). 15 See J5.240 (introduction); J5.241-242
(Defendants' case); J5.243-244 (Irving's
response) and J13.49 (findings). | 
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