Documents, Prof. Deborah Lipstadt — Jul 2001

DJC Irving – v – Penguin Books Ltd and Deborah Lipstadt your Closing Speech Mr Justice Gray’s Judgment Lipstadt 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.

Appeal Judgment Case No: A2/2000/2-95 A2/2000/2095/A IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE QUEEN’S BENCH DIVISION (MR JUSTICE GRAY) Royal Courts of Justice Strand, London, WC2A 2LL Date: 20 July 2001 B e f o r e : LORD JUSTICE PILL LORD JUSTICE MANTELL and LORD JUSTICE BUXTON David Irving Applicant – and – (1) Penguin Books Ltd (2) Professor Deborah Lipstadt Respondents Richard Rampton QC (instructed by Messrs Davenport Lyons and Messrs Mischon

de Reya) for the Respondents Heather Rogers (instructed by Messrs Davenport Lyons) for the first Respondent Anthony Julius (instructed by Messrs Mischon de Reya) for the second Respondent Adrian Davies (instructed by Amhurst Brown Colombotti) for the Applicant JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) Lord Justice Pill: This is the judgment of the Court. Background 1.

This is an application for permission to appeal against a judgment given by Gray J on 11 April 2000 whereby he dismissed a claim by Mr David Irving (“the applicant”) that he had been libelled in a book entitled “Denying the Holocaust — The Growing Assault on Truth and Memory” written by Professor Deborah Lipstadt and published in the United Kingdom by Penguin Books Ltd in 1994. The applicant is the author of over 30 books and has specialised in the history of the Third Reich.

Amongst his titles are The Destruction of Dresden (1963), Hitler’s War (1977 and 1991 Editions) and Goebbels — Mastermind of the Third Reich (1996). 2. Because there is no significant dispute as to their effect, it is not necessary to set out extensively the passages from Denying the Holocaust of which the applicant complains.

They include, at p 161, the statement that “scholars have described Irving as a “Hitler partisan wearing blinkers” and have accused him of “distorting evidence and manipulating documents to serve his own purpose”. On the same page, it is stated that “he has been accused of skewing documents and misrepresenting data in order to reach historically untenable conclusions, particularly those that exonerate Hitler”.

At p 181 it is stated that “Irving is one of the most dangerous spokespersons for holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda”. 3. The trial lasted from 11 January to 15 March 2000 and judgment was given on 11 April 2000. The applicant appeared in person. He has been represented at the hearing of the present application by Mr Adrian Davies of Counsel.

Mr Davies addressed the Court for 3 days and the hearing lasted for a total of 3_ days. Both at the trial and before this Court the respondents have been represented by Mr Richard Rampton QC. Conclusion on Meaning 1. We refer immediately to the judge’s “Conclusion on meaning”.

At 2.15 the judge stated: “Adopting the approach set out earlier, my conclusion is that the passages complained of in their context and read collectively bear the following meanings all of which are defamatory of him [the applicant]: i that Irving is an apologist for and partisan of Hitler, who has resorted to the distortion of evidence; the manipulation and skewing of documents; the misrepresentation of data and the application of double standards to the evidence, in order to serve his own

purpose of exonerating Hitler and portraying him as sympathetic towards the Jews; ii that Irving is one of the most dangerous spokespersons for Holocaust denial, who has on numerous occasions denied that the Nazis embarked upon the deliberate planned extermination of Jews and has alleged that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such extermination; iii that Irving, in denying that the Holocaust happened, has misstated

evidence; misquoted sources; falsified statistics; misconstrued information and bent historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs; iv that Irving has allied himself with representatives of a variety of extremist and anti-semitic groups and individuals and on one occasion agreed to participate in a conference at which representatives of terrorist organisations were due to speak; v that Irving, in breach of an agreement which he had made and

without permission, removed and transported abroad certain microfiches of Goebbels’ diaries, thereby exposing them to a real risk of damage; vi that Irving is discredited as an historian. Subject to one point disputed by the applicant, those conclusions as to meaning are accepted by the parties. The point at issue is whether a statement at p 213 of Denying the Holocaust bears the meaning that the applicant approves of the internment and the killing of the Jews in concentration camps.

It is stated that another author, “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”. The judge did not accept (2.16) that the reference to the applicant “when read in the context of the other references to him, bears the meaning that he applauds the internment of Jews in Nazi concentration camps”. The judge was entitled so to find.

Moreover, the innuendo now alleged that “internment” meant killing was not pleaded and could not be relied on. 1. It should be said at once that the judge found that the respondents had failed to justify the second allegation in sub-paragraph (iv) and the allegations in (v). The judge relied on section 5 of the Defamation Act 1952 (“The 1952 Act”) to give judgment in favour of the respondents, notwithstanding those findings against them. The central issue 1.

Both at the trial, and at the hearing of this application, stress has been placed on the importance of the applicant’s integrity as a serious historian. The judge drew attention (3.2) to the applicant’s statement that “for him his reputation as a truth-seeking historian is more important than anything else”. Consideration of the applicant’s reputation as an historian was central to the trial and is central to this application.

Indeed, the judge’s conclusion (13.1), that “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” is expressly adopted on the applicant’s behalf though it is strongly denied that the charges are true. The judge recorded (5.9) that the applicant testified “that he had never knowingly or wilfully misrepresented a document or misquoted or suppressed any document which would run counter to his case”. 2.

The judge acknowledged (4.7) that the burden of proving the defence of justification rested upon the respondents. To succeed in their defence of justification, in relation to the allegations at (i), (iii) and (vi) above, the respondents have to establish not only that the applicant is not a reputable historian, to use the expression adopted at the hearing as a form of shorthand for the allegations about his work, but also that he had a motive of his own in distorting the evidence.

The second limb has not however been the subject of dispute. On behalf of the applicant, Mr Davies accepts that if the applicant is shown not to be a reputable historian, which is the central issue, his motivation is not an important issue. Mr Davies says that it is “at the margin”. It is dealt with briefly later in this judgment.

Mr Davies of course rightly adds that, if the respondents have failed to demonstrate that the applicant is not a reputable historian, their case cannot be made by proving a motivation, however unattractive. The allegation of “holocaust denial” has also been put as a subsidiary issue. Gray J’s judgment 1. The judgment of Gray J can only be admired for its comprehensiveness and style.

It has the unusual accolade for a judgment of being published, verbatim and without commentary, in book form, The publishers are the Penguin group and the book runs to 350 pages. It is not necessary, in order to determine this application, to attempt the comprehensiveness to which the judge aspired, and which he attained, following a very long trial. His conclusions on each issue are succinctly stated.

Plainly reference to his summary of evidence and submissions is on some issues necessary to assess the validity of his conclusions but it is not necessary or appropriate to set out that evidence extensively. It is for the applicant to demonstrate that there is a real prospect of an appeal succeeding. 2.

Having set out an overview of the applicant’s claim and of the defence of justification, the judge set out in sections (v) to (xii) of his judgment the contentions of the parties on each of the issues in dispute. Section (v) considers specific criticisms made by the respondents of the applicant’s historiography under 18 headings, each of them being concerned with a specific event or events in the history of the Third Reich.

Auschwitz, not surprisingly, has a long section (section vii) to itself. The judge’s findings on justification are set out in section xiii (including findings under section 5 of the 1952 Act) and is followed at section xiv by the judge’s verdict in favour of the respondents. The applicant’s case 1. The notice of appeal took the form of a skeleton argument of 191 paragraphs, settled by Mr Davies.

Mr Davies invites the Court to approach the application on the basis of the statement of Baggallay JA in The Glannibanta (1876) 1 PD 283 at 287: “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.” 1.

Mr Davies submits that the five expert witnesses called at the trial on behalf of the respondents were all motivated by ideological bias and, particularly in the case of the historian Professor Evans, by personal hatred. Professor Evans denied that allegation stating that he did not have personal feelings about the applicant and had tried to be as objective as possible.

The attack on Professor Evans, whom Mr Davies described as the key witness for the respondents, has been continued at this hearing, his analysis of one aspect of his evidence being described as “ridiculous”.

It is also submitted that Professor Evans should not have been allowed to give evidence as to the meaning of the words “holocaust denier” and also that Professor van Pelt should not have been permitted to give evidence on architectural, as distinct from historical, matters and should not have been permitted to give evidence on the chemistry of fumigation and gas chambers.

The fees paid to the experts were “so grotesquely large”, it is submitted, that their evidence could not be “the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation” (Cresswell J in The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 at 81. 2.

Mr Davies rightly stresses that all the individual points at issue should be considered against the background that the respondents have to establish not merely that the weight of historical evidence is against the views expressed about events by the applicant but that, on the evidence available at the time the view was expressed, the view was wholly unreasonable and not one which could honestly be held.

Only if no rational historian with a general knowledge of the Third Reich could have come to the conclusions reached by the applicant at the material time were the allegations against him justified. 3. It is submitted that while the applicant may have at times shown rather poor judgment, the position he took on issues was one of several, or a range of, positions which could honestly be taken on the existing evidence.

It was important to keep in mind the information available at the time the relevant books were written, which was before much of the present evidence had become available. We acknowledge that it is of the essence of the investigation of historical events, particularly comparatively recent events, that fresh material becomes available from time to time. It may throw doubt on previously held views or may tend to confirm them.

The reputable historian who continues to express views will have regard to the fresh material when doing so. 4. Counsel submits that provided there was evidence which entitled the applicant to reach the conclusion which he expressed on an issue, he could not be condemned in the manner the respondents have condemned him. An historian who writes books for publication must inevitably be selective in the material included, it is submitted.

Where the applicant retained his doubts about events in the Third Reich, the evidence was not so overwhelming that he could not honestly persist in his doubts. The question is whether the applicant could honestly come to the conclusions he did. Mere negligence on his part was insufficient to justify the allegations made against him, Counsel submits. 5. Mr Davies relies on admissions made by the applicant as to events which occurred in the Third Reich to demonstrate the applicant’s objectivity.

He has never denied that the Nazis and their collaborators murdered millions of Jews. It is submitted that he has never tried to justify that conduct of theirs. He accepts that at some time after June 1941 a policy of murdering all Jews in occupied Europe had become State policy “at Himmler’s level”. By 1943, and quite possibly earlier, that was a systematic policy. 6.

Counsel also mentioned a concession made by the applicant when cross-examining Dr Longerich upon the possibility of Himmler conducting operations behind Hitler’s back. The applicant volunteered the information that Himmler’s brother had told him “that Heinreich was such a coward that he would never have done this without Hitler’s orders”. 7.

Reference is also made to the applicant modifying his views when fresh evidence has become available, for example in relation to the Leuchter Report, and in relation to casualties resulting from the bombing of Dresden. The applicant has also habitually disclosed to other historians documents which he had discovered (5.12). In some respects, those who had taken views different from the applicant’s had had to revise them.

For example, it was until 1990 recorded on a plaque at Auschwitz that 4 million people had died there whereas the current estimate is very much lower, a change in the direction of the views held by the applicant. 8. Mr Davies urges the Court to bear in mind that the applicant appeared in person at a long and complex trial and allowance should be made for any failure in his understanding of procedure and in his presentation.

The further general point is made that the weight to be placed on statements made by the applicant in speeches and interviews, and relied on by the respondents to justify their allegations, should be very limited. He had spoken without notes and in stressful situations. He should be judged as an historian and not as a platform speaker. 9. Counsel relies on the favourable comments of the judge (13.7) under the heading “Irving the Historian”.

The paragraph begins with the sentences: “My assessment is that as a military historian, Irving has much to commend him. For his works of military history Irving has undertaken thorough and painstaking research into the archives. He has discovered and disclosed to historians and others many documents which, but for his efforts, might have remained unnoticed for years”. That assessment is now unchallenged.

We also agree with the judge that the applicant’s knowledge of World War II, his mastery of detail, along with his ability and intelligence are not in doubt. The test to be applied 1. In stating his conclusions on the defence of justification, the judge first set out the claims made by the respondents, their extent and the test to be applied. We set out the relevant paragraphs in full.

Mr Davies accepts that in paragraphs 13.3 and 13.4 the judge has correctly stated the test to be applied. “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 propose therefore to consider first whether the Defendants have made good their claim that, in what he has written and said about the Third Reich, Irving has falsified and misrepresented the historical evidence. 13.2

There are several aspects to this. The falsification and misrepresentation alleged by the Defendants relate to (a) the specific individual criticisms of Irving’s historiography which are addressed in section v. above; (b) his portrayal of Hitler, which is dealt with at section vi.; (c) his claims in relation to Auschwitz covered in section vii.

And, finally, (d) the bombing of Dresden which is dealt with in section xi. 13.3 The question which I shall have to decide is whether the Defendants have discharged the burden of establishing the substantial truth of their claim that Irving has falsified the historical record. In this connection I should repeat the caveat expressed at the beginning of this judgment: 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 distincti

on may be a fine one but it is important to bear it in mind. 13.4 If the charge of misrepresentation and falsification of the historical evidence is substantially made out, there remains the question whether it was deliberate. Irving rightly stresses that the Defendants have accused him of deliberately perverting the evidence.

For their part the Defendants recognize that it is incumbent on them to establish, according to the appropriate standard of proof, that the misrepresentation and falsification were motivated by Irving’s ideological beliefs or prejudices. In this context, I shall consider the submission made by Irving that he had been guilty, at worst, of making errors in his handling of the historical record.

As I will explain in assessing Irving’s motivation, I will also take into account the evidence of the public statements by Irving in which he allegedly denied the Holocaust; the evidence upon the basis of which the Defendants accuse him of anti-semitism and racism and the evidence of his alleged association with right-wing extremists.” The approach of this Court 1. We consider the approach which this Court should take to the judge’s consideration of the evidence, his conclusions and verdict.

By reference to the statement of Baggallay JA in The Glannibanta, already cited, Mr Davies invites the Court to weigh the conflicting evidence for itself and draw its own inferences and conclusions. We accept that there are some issues which turn upon the construction of documents where this Court is in as good, or almost as good, a position to assess the evidence as was the trial judge.

We say almost as good because the comments of witnesses upon the documents and witnesses’ assessment of the context in which the documents came into existence deserve weight. On the issues as a whole, the judge’s assessment of the credibility and reliability of the historians was in our judgment a significant factor in the case. In the end, the judge had to consider whether the applicant was a reputable historian.

In reaching his conclusion, he would inevitably have to assess the approach of the applicant to the source material he had considered and the approach of Professor Evans, the main protagonist for the respondents. The fact that each of the parties subjected the historian on the other side to detailed and lengthy cross-examination illustrates the importance of this aspect of the trial.

It may have been more a question of reliability in terms of historiography than of credibility but, in deciding whether the respondents’ allegations are justified, the judge who heard the oral evidence and the manner in which it was given was in a good position to assess it. Having said that, this Court can be expected to scrutinise carefully the reasoning of the judge and submissions made as to the source material on which it is based. Procedural issues 1.

An issue also arose as to the scope of the evidence which the respondents’ expert witnesses, and in particular Professor van Pelt, were entitled to give. Professor van Pelt was introduced as a Professor of the History of Architecture at a Canadian university.

It emerged that he was not a qualified architect and it is submitted on behalf of the applicant that Professor van Pelt should not have been allowed to give evidence on architectural questions, such as the design of the buildings at Auschwitz. He described himself as a cultural historian.

It is further submitted that, even if qualified to give evidence about the design of buildings, he should not have been permitted, when questions arose as to the chemistry involved in gassing, to give evidence about that. 2. We see no merit whatever in the first of these submissions. Professor van Pelt plainly had considerable knowledge and expertise in the design of buildings and the uses to which they can be put.

The absence of a professional qualification in architecture did not preclude him from giving evidence on architectural matters when the issues were those in this case. One does not have to be a qualified lawyer to express views on legal history. There must of course be a limit to the extent to which someone whose profession is that of historian can express views of his own on highly technical matters.

The witness is however entitled to consult, refer to and rely on source material in support of an opinion. Military historians frequently express opinions about the effectiveness of weapons and the effect of their use in battle and can do so without their being experts, for example, in ballistics or metallurgy. 3. That being so, such force as Mr Davies’s second submissi

on may have had was destroyed by his refusal to entertain discussion of Professor van Pelt’s source material. Mr Davies stated that he had not come to the hearing prepared to argue the merits of van Pelt’s report. He declined to examine, for example, the documents, mentioned by the judge at 7.124, on which Professor van Pelt had relied in expressing the opinion that the quantity of coke required per corpse at Auschwitz would have been no more than 3.5 kg.

Nor was he prepared to analyse the information on the basis of which the applicant had expressed the opinion that the appropriate figure was 35 kgs. This was not a subject for evidence from either party, Mr Davies submits. We reject that submission. 4. We also mention at this point that there were before the Court two applications to call fresh evidence in support of the application.

The first, made well before the hearing, was to call evidence from Mr Germar Scheerer (born Rudolf), who holds a diploma in chemistry, and Mrs Zoe Polanska-Palmer, who was detained in Birkenau Camp. The respondents had prepared voluminous evidence in reply. In the event, that application to call fresh evidence was not pursued.

We express our dismay at this combination of events; the preparation of very detailed evidence (exposing the respondents to great expense in preparing a reply and the members of the Court to considerable pre-hearing reading) and the withdrawal of the application. 5.

We were not prepared to entertain an application made by Mr Davies in the course of the hearing that a series of photographs, said to be self-explanatory, dealing with the issues as to the Prussian blue staining of fabric exposed to hydrogen cyanide should be admitted. That was a subject considered in the proposed additional evidence it was decided not to seek permission to adduce. To permit admission of photographs alone would have been unfair and could have been very misleading. 6.

The second application was made in the course of the hearing. It was wished to call evidence of the contents of a book written by Professor Evans, published early this year and known to the applicant in March. The application was not reduced to writing and we did not see the book but the allegation is that the work demonstrates Professor Evans’s ill-will towards the applicant.

We refused the application first on the ground of its extreme lateness, which was an important factor having regard to the allegation to be made; second on the ground that the alleged attitude of Professor Evans had already been raised at the trial and the judge had been in a position to assess, with that in mind, the lengthy evidence he had given; third on the ground that the proposed additional evidence was not, and could not be contended to be, crucial on the central issue having regard to

all the material available. Anti-semitism and racism as motivation and association with right wing extremists 1. The judge recorded (9.1) that no allegation of anti-semitism or of racism had been levelled against the applicant in Denying the Holocaust. The respondents claim that the applicant’s alleged racism and anti-semitism “provide a motive for his falsification of the historical record” (9.1).

No objection is made to the body of evidence on these subjects incorporated into the judgment (9.4 — 9.7). It is not necessary for present purposes to set out this evidence or even to summarise it.

The judge was justified in saying (13.101) of the statements of the applicant recorded at 9.5 that: “His words are directed against Jews, either individually or collectively, in the sense that they are by turns hostile, critical, offensive and derisory in their references to semitic people, their characteristics and appearances.” It is common ground that the material goes “to allege motive only” (paragraph 191 of notice of appeal).

The judge concluded that the “inference which … is clearly to be drawn from what Irving has said and written is that he is anti-semitic.” (13.105) The judge accepted that the applicant “is not obsessed with race” (13.108) but added that “he has on many occasions spoken in terms which are plainly racist”. In this application, the applicant does not seek to challenge those findings which go to motive only.

The respondents contend that they help to explain why a military historian with much to commend him has allegedly “falsified and misrepresented the historical evidence”. 2. The judge also found (13.115) that the applicant had associated “to a significant extent” with named individuals who are “all right-wing extremists”. The judge concluded that the applicant’s “association with such individuals indicates in [his] judgment that Irving shares many of their political beliefs”.

That finding is not challenged in this application. The main point put in issue is, I repeat, the applicant’s reputation as an historian. Events in the history of the Third Reich 1. The appellant’s historiography has been assessed by reference to a number of events in the history of the Third Reich. The Auschwitz issue featured prominently at the trial and in the submissions at this hearing.

Mr Davies went so far as to say that if he failed on Auschwitz, in failing, that is, to show an arguable case that the applicant’s views were those a reputable historian could hold, the application failed. We do not hold Mr Davies to that concession though it reflects the evidence of the applicant, as recorded by the judge (7.94), that if “anyone detected holes in the roof [morgue 1 of crematorium 2], he would abandon his libel action”. 2.

It is not to diminish the importance of the scale and scope of the Auschwitz issue in human terms when we say that we prefer to take a more general view of the applicant’s historiography. An overall view must be taken and that requires consideration of his published views in relation to the events in issue as a whole before a conclusion is reached.

The allegation that the applicant was an “apologist for Hitler” and had the purpose of “exonerating Hitler” in any event requires consideration of issues other than the extent of gassing at Auschwitz. We concentrate on those events which have been specifically advanced by Mr Davies at this hearing and the conclusions the judge had reached upon them. Auschwitz 1.

A striking feature of this aspect of the case was that evidence and submissions as to what happened at Auschwitz included a consideration of views currently held, that is held at the time of the trial. It is striking because of the emphasis otherwise placed on behalf of the applicant on the contents of his books being assessed on the basis of evidence available at the time of publication.

Having made that submission strongly, Mr Davies accepts that, in relation to Auschwitz, the respondents can succeed if they establish that, at any point in time, including the time of the trial, the applicant has adopted a position so contrary to the evidence as to be perverse. On this issue, evidence was given by both sides on the basis of evidence currently available. It is accepted that the applicant modified his position in the course of the trial. 2.

The judge’s conclusion (13.91) was: “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.” 1.

Mr Davies submits that, having set out the correct test at paragraphs 13.3 and 13.4, the judge set out the wrong test at paragraph 13.70 when considering this issue: “In these circumstances the central question which, as it appears to me, falls to be determined is whether or not the evidence supports the Defendants’ contention that the number of deaths ran into hundreds of thousands or whether Irving is right when he claims that the killing by gas was on a modest scale.”

By using the expression “whether Irving is right”, the judge has wrongly stated the issue and wrongly reversed the burden of proof, it is submitted. The conclusion reached flows from that misdirection. Secondly, submits Mr Davies, the conclusion at 13.91 is not justified by the findings at 13.71 to 13.90. 1. Until the publication of the Leuchter report, the applicant had expressed no view, submits Mr Davies, on Auschwitz.

He was a specialist on the military campaigns of the Third Reich and not on extermination. Mr Fred Leuchter was expert in execution procedures including the administration of gas and it was what the applicant read in his report in 1988 that convinced him that there was no truth in the claim that Jews met their death in large numbers in gas chambers at Auschwitz. The judge set out Leuchter’s findings in detail (7.79 to 7.89).

Professor van Pelt dismissed the Leuchter report as flawed and unreliable. As the judge noted in his conclusions on Leuchter (13.79 and 13.80), the applicant agreed that the Leuchter report was fundamentally flawed. He accepted that a false assumption by Leuchter vitiated Leuchter’s conclusion and the applicant conceded the existence of many other factual errors in the report. 2.

The applicant’s case is not that the Leuchter report can now be considered reliable but that it had appeared reliable when brought to the applicant’s attention in 1988 and that the applicant was acting honestly in relying on it at that time. Moreover, on the evidence available at the time of trial, it was still an issue for legitimate historical debate whether Jews had been systematically gassed at Auschwitz.

The evidence for the proposition that there was mass gassing is nowhere near so strong, it is submitted, that it is perverse for the applicant to entertain doubts about it. The applicant’s position is that there were no gassings at Auschwitz 1 and only random gassings at Auschwitz 2. There remain good grounds for scepticism as to what had happened at Auschwitz, it is submitted. 3.

On the applicant’s behalf, Mr Davies made a sustained attack upon the reliability of the evidence which led the judge to his conclusion (13.91) already quoted. There were serious doubts about the reliability of Ol_re’s drawings which showed, for example, the impossible event of flames 90 ft long emerging from a chimney. They could not be treated as corroborating Tauber’s account. The subsequent statements of Höss, the camp commandant, could not be relied on because of obvious exaggeration.

Broad was a man of flexible allegiances in that he had served first the Gestapo, and after the war the British and was unreliable. Professor van Pelt had accepted that the building at Auschwitz 1 now visited by tourists had not been used as a gas chamber during the war. 4. The judge had treated as corroboration (13.77) what could not properly so be treated and the applicant was entitled to his doubts about the eye-witness evidence.

Mr Davies refers to the applicant’s challenge at the trial to the evidence of Professor van Pelt that the single air photograph he had selected for use at the trial “very clearly showed that there are four introduction deliveries in morgue No 1”. (Day 10, p 26, line 12). (There was an issue as to whether gas could have been introduced into the building.)

It was but a single photograph, of unknown date and Professor van Pelt accepted that it was impossible to say what kind of shadow the objects cast. On the issue of the existence of chimneys protruding through the roof, the judge himself found the photographic evidence hard to interpret (13.73). He acknowledged (13.83) that the argument that there was no evidence of the presence of chimneys or ducts in the roof of morgue 1 at crematorium 2 “deserves to be taken seriously”. 5.

Mr Davies also relies, as did the applicant at the trial, on the absence of references to gassing in the captured records of deaths at Auschwitz. Moreover, reports from the camp to Berlin, in cypher, did not mention gassing. The cypher had, unknown to the German authorities, been broken by the British and reports were decoded at Bletchley Park.

Secrecy was not maintained with respect to other methods of mass murder and there was even gloating over some atrocities, for example, by the Einsatzgruppen. A British document prepared by a senior Foreign Office official demonstrated that as late as August 1943 the Office had no evidence of mass executions in gas chambers. Had gassing occurred at Auschwitz it was surprising that there were no better records of it. The applicant was entitled to his genuine doubt as to events at Auschwitz.

The applicant accepted that a very large number of people had died at Auschwitz, by other methods of killing and as a result of disease. His refusal to accept the systematic use of gas chambers to kill large numbers of Jews could not be described on the evidence as perverse. 6. That the judge considered carefully the evidence and the submissions of the applicant at the trial is clear: “13.73 I recognise the force of many of Irving’s comments upon some of those categories.

He is right to point out that contemporaneous documents, such as drawings, plans, correspondence with contractors and the like, yield little clear evidence of the existence of gas chambers designed to kill humans. Such isolated references to the use of gas are to be found amongst these documents can be explained by the need to fumigate clothes so as to reduce the incidence of diseases such as typhus.

The quantities of Zyklon-B delivered to the camp may arguably be explained by the need to fumigate clothes and other objects. It is also correct that one of the most compromising documents namely Bischoff’s letter of 28 June 1943 setting out the number of cadavers capable of being burnt in the incinerators, has a number of curious features which raise the possibility that it is not authentic.

In addition, the photographic evidence for the existence of chimneys protruding through the roof of morgue 1 at crematorium 2 is, I accept, hard to interpret. 13.74 Similarly Irving had some valid comments to make about the various accounts given by survivors of the camp and by camp officials. Some of those accounts were given in evidence at the post-war trials. The possibility exists that some of these witnesses invented some or even all of the experiences which they describe.

Irving suggested the possibility of cross-pollination, by which he meant the possibility that witnesses may have repeated and even embellished the (invented) accounts of other witnesses with the consequence that a corpus of false testimony is built up. Irving pointed out that parts of some of the accounts of some of the witnesses are obviously wrong or (like some of Olere’s drawings) clearly exaggerated.

He suggested various motives why witnesses might have given false accounts, such as greed and resentment (in the case of survivors) and fear and the wish to ingratiate themselves with their captors (in the case of camp officials). Van Pelt accepted that these possibilities exist. I agree”. (We were told that the author of the letter of 28 June 1943 was Bischoff and not Muller as stated in the judgment handed down. We were also told that a correction was made at the time of handing-down.) 1.

The contentions of the parties, and the evidence relied on, are fully set out both in section (v) of the judgment and in section (xiii). The judge summarised the respondents’ case (13.73) as being “that there exists what van Pelt described as 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.” 2.

The judge stated (13.72) that it appeared to him to “be important to keep well in mind the diversity of the categories [of evidence] and the extent to which those categories are mutually corroborative”. The judge set out a summary of the documentary evidence and the eye-witness evidence. He stated (13.75) that “it appears to me that the cumulative effect of the documentary evidence for the genocidal operation of gas chambers at Auschwitz is considerable”.

As to the eye-witness evidence, he stated that while he acknowledged “that reliability of the eye-witness evidence is variable, what is to me striking about that category of evidence is the similarity of the accounts and the extent to which they are consistent with the documentary evidence”. The judge concluded: “13.78 My conclusion is that the various categories of evidence do ‘converge’ in the manner suggested by the Defendants.

I accept their contention which I have summarised in paragraph 7.75 above. My overall assessment of the totality of the evidence that Jews were killed in large numbers in the gas chambers at Auschwitz is that it would require exceedingly powerful reasons to reject it. Irving has argued that such reasons do exist.” 1.

Following that provisional conclusion, the judge set out the reasons relied on by the applicant, the Leuchter report, the alleged absence of holes in the roof of morgue 1 of crematorium 2, the case that gas chambers were required for fumigation purposes or (on re-design) to serve as air-raid shelters and the arguments relating to “death books”, decrypts and coke consumption.

In relation to the holes in the roof, the judge concluded (13.83) that “an objective historian, taking account of all the evidence, would conclude that the apparent absence of evidence of holes in the roof of morgue at crematorium 2 falls far short of being a good reason for rejecting the cumulative effect of the evidence on which the Defendants rely”.

In relation to the use of gas chambers for other purposes, he concluded (13.86) that he cannot accept “that this argument would come anywhere near displacing the conclusion to be drawn from the convergent evidence relied on by the Defendants for their contentions as to the object of the redesign work”. The other points did not impress the judge and he added that he did not “consider that they would have impressed a dispassionate historian either”.

In relation to “death books”, the judge referred to the unchallenged evidence of a large number of witnesses that “the books record only the deaths of those who were formally registered as inmates of the camp. The Jews who were selected on arrival to die were taken straight to the gas chambers without being registered. One would not therefore expect to find mention of the cause of death of those Jews in the death books”. (13.88). 2.

In relation to camp reports, the judge concluded: “13.89 Reports were sent regularly from the camp to Berlin in cypher. They were intercepted and decoded at Bletchley Park. Although these reports often gave the cause of death, they did not mention gassing.

In my judgment there are two reasons why little significance is to be attached to this: the first is that there was a strict rule of secrecy about the gassing and the second is that, like the death books, these reports related to registered inmates only”. Conclusion on Auschwitz 1. Having reached those conclusions, the judge set out his general conclusion at 13.91 already cited. We acknowledge that important parts of the evidence relied on by the judge were not first-hand evidence.

For example, he did not and could not hear the “eye-witness evidence” of Tauber, Olëre, Höss and Broad, on whom he relied. He had to assess the value of their evidence on the basis of statements made by them many years ago together with the comments upon them and upon their context by expert historians. This has two consequences.

The first is that the value of the evidence of any individual “witness” must be less than if he or she had given evidence orally to the Court and been subject to cross-examination. The second is that, as compared with the trial judge, this Court is at less of a disadvantage in assessing the evidence than is often the case.

We bear those considerations in mind along with the earlier statement of the approach we proposed to adopt. (para 21) Having considered the evidence summarised by the judge, and the submissions of the parties we have come to the conclusion that the conclusion of the judge at 13.91 was a conclusion he was fully entitled to reach. 2. We are also satisfied that the judge directed himself correctly.

At 13.70, already cited, the judge was doing no more than identifying the factual issue at Auschwitz, what he described as “the central question”. He needed to do so because the applicant’s position at trial on Auschwitz had changed significantly from those he had previously adopted. At the trial, he put in issue, as Mr Davies had rightly acknowledged, his up-to-date position.

It was necessary for the judge to identify the applicant’s current position on the factual issue, as he did at 13.70, by referring to the applicant’s claim “that the killing by gas was on a modest scale”. That the applicant’s position had been different at an earlier time is confirmed by the record of his public statements set out in the judgment (8.17). We cite three examples: Dresden, 13 February 1990: “… the holocaust of Germans in Dresden really happened.

That of the Jews in the gas chambers at Auschwitz is an invention. I am ashamed to be an Englishman.” Toronto, 8 November 1990: “… more people died on the back seat of Senator Edward Kennedy’s motor car at Chappaquiddick than died in the gas chamber at Auschwitz.” Calgary, 29 September 1991: “… and so are the other eye-witnesses at Auschwitz [liars] who claim they saw gassings going on because there were no gas chambers in Auschwitz as the forensic tests show.” 1.

The judge’s self-direction as to the test to be applied to the applicant’s historiography, the factual issue having been determined, is set out at 13.3 and 13.4, which Mr Davies accepts as an appropriate direction, and we have no doubt that the judge applied it when reaching the conclusion at 13.91. The applicant’s historiography 1.

Under the heading “The specific criticisms made by the defendants of Irving’s historiography”, the judge set out (5.16 to 5.245) the submissions of the parties as to views expressed by the applicant on 18 events in the history of the Third Reich. The 2. judge’s conclusions upon the submissions are set out at 13.9 to 13.50 of the judgment. At 13.51, as well as 13.9, the judge expressed general conclusions.

Mr Davies has challenged those conclusions by making submissions upon the judge’s consideration of the applicant’s views upon some of the events of greater significance. Hitler’s trial in 1924 and crime statistics for Berlin in 1932 1. Neither party was disposed to attach much importance to the applicant’s views on these events or to the judge’s conclusions.

Mr Davies refers to the judge’s statement (13.12) that “Irving ought to have appreciated that Hofmann’s allegiance to Hitler rendered his testimony untrustworthy”. The manner in which the applicant had sought to explain his approach to Hofmann’s testimony, summarised by the judge at 5.27, certainly justifies that finding, in our view. However, submits Mr Davies, that was far from a finding of perversity.

The same can be said, submits Mr Davies, of the judge’s conclusion in relation to 1932 (13.13): “Whilst I am sympathetic to Irving’s handicap in being unable to obtain access to documents in the German archives, I am not persuaded that there exist documents which justify Irving in quoting without any reservation the claim made by Daluege [that in 1930 a strikingly large proportion of offences of fraud in Germany were committed by Jews]”.

That conclusion reverses the burden of proof, it is submitted, and in any event certainly cannot be regarded as a finding of perversity. The events of Kristallnacht (November 1938) 1. The importance of the events on 9 and 10 November 1938 in the history of the Third Reich and hence the importance of the manner in which the applicant dealt with them was not disputed by Mr Davies.

As the judge put it: “13.14 It was, I believe, common ground between the parties that Kristallnacht marked a vital stage in the evolution of the Nazis’ attitude towards and treatment of the Jews. It was the first occasion on which there was mass destruction of Jewish property and wholesale violence directed at Jews across the whole of Germany.

As an historian of the Nazi regime, it was therefore important for Irving to analyse with care the evidence how that violence came about and what role was played by Hitler.” 1. In Goebbels, (p 276-277), the applicant described the events in these terms: “What of Himmler and Hitler? Both were totally unaware of what Goebbels had done until the synagogue next to Munich’s Four Season Hotel was set on fire around one A.M.

Heydrich, Himmler’s national chief of police, was relaxing down in the hotel bar; he hurried up to Himmler’s room, then telexed instructions to all police authorities to restore law and order, protect Jews and Jewish property, and halt any ongoing incidents. The hotel management telephoned Hitler’s apartment at Prinz-Regenten Platz, and thus he too learned that something was going on. He sent for the local police chief, Friedrich von Eberstein. Eberstein found him livid with rage.

According to Luftwaffe adjutant Nicolaus von Below, Hitler phoned Goebbels, ‘What’s going on?’ he snapped, and: ‘Find out!’ According to Julius Schaub, the most intimate of his aides, Hitler ‘made a terrible scene with Goebbels’ and left no doubt about the damage done abroad to Germany’s name. He sent Schaub and his colleagues out into the streets to stop the looting (thus Schaub’s postwar version).

Philipp Bouhler, head of the Fuhrer’s private chancellery, told one of Goebbels’ senior officials that Hitler utterly condemned the progrom and intended to dismiss Goebbels. Fritz Wiedemann, another of Hitler’s adjutants, saw Goebbels spending much of the night of November 9-10 ‘telephoning … to halt the most violent excesses.’ At 2.56 A.M.

Rudolf Hess’s staff also began cabling, telephoning, and radioing instructions to gauleiters and police authorities around the nation to halt the madness. But twenty thousand Jews were already being loaded onto trucks and transported to the concentration camps at Dachau, Buchenwald, and Oranienburg. Hitler made no attempt to halt this inhumanity. He stood by, and thus deserved the odium that now fell on all Germany.

Goebbels had anticipated neither Hitler’s fury nor, probably such an uncontrollable, chaotic orgy of destruction. Not surprisingly he made no reference to this unwelcome turn of events in his diary. But perhaps this