Day 28 Transcript: Holocaust Denial on Trial

Part I: Initial Proceedings (1.1 to 11.2)

IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN’S BENCH DIVISION Royal Courts of Justice Strand, London Wednesday, 1st March 2000 Before: MR JUSTICE GRAY B E T W E E N: DAVID JOHN CAWDELL IRVING Claimant -and- (1) PENGUIN BOOKS LIMITED (2) DEBORAH E.

LIPSTADT Defendants The Claimant appeared in person MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and Second Defendants MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of the Second Defendant Deborah Lipstadt (Transcribed from the stenographic notes of Harry Counsell & Company, Clifford’s

Inn, Fetter Lane, London EC4 Telephone: 020-7242-9346) (This transcript is not to be reproduced without the written permission of Harry Counsell & Company) PROCEEDINGS – DAY TWENTY-EIGHT

(10.30 a.m.) < Professor Funke, recalled. < Cross-Examined by Mr Irving, continued. MR JUSTICE GRAY: Yes, Mr Irving? MR IRVING: My Lord, I have put two small bundles in front of your Lordship. One is a bundle of photographs which I do not propose to dwell very much on. I think I will spend 10 seconds looking at each one with the witness. They are photographs of German meetings. They are minor points to be made possibly on each of the photographs.

Some of he meetings we are familiar with, and some not. MR JUSTICE GRAY: Yes. MR IRVING: The second bundle, my Lord, I have yesterday taken the Eichmann papers, which is what I am now holding in my hand. I have converted them to hard copy. I would be quite happy to make that available to the Defence. I have extracted five or six pages already, which are the only pages I have found with a word search for “Fuhrer” or “Hitler” in any substance.

They may help the Defence, they may help me, I have not really looked at them, but I have put them there in case there is any need for immediate action on them. MR JUSTICE GRAY: Well, you are not going to deal with them with this witness anyway? MR IRVING: No, my Lord. MR JUSTICE GRAY: So we will put that on one side.

MR IRVING: Except that lower down on the same bundle there are one or two things that I probably will draw the witness’s attention to. MR JUSTICE GRAY: Mr Rampton, do we have a list of the alleged extremists? MR RAMPTON: Yes, we do. MR JUSTICE GRAY: I was thinking it might be helpful to have it at this stage. MR RAMPTON: Yes. So, it is a list of the alleged extremists, it is a list of the important ones for this part of the case.

There is an “Others” category which really does not directly concern Professor Funke. MR JUSTICE GRAY: Right. Yes, Professor? A. [Dr Hajo Funke]: Can I add three remarks from yesterday? MR JUSTICE GRAY: Yes, if you wish to. A. [Dr Hajo Funke]: When? Q. [Mr Justice Gray]: Yes, now. A. [Dr Hajo Funke]: OK, good.

I rethought the coverage of 9th November ’91 in Halle and, to my best knowledge, the NB, the National Bloc, is not as I said from the Ruhr area, but from Bavaria under the leader of Manfred Eichmann. This is the first. The second, I did not get the protocol of yesterday, so — the minutes of yesterday, so I do not know if I got special question of David Irving right. So in the case I did not I want just to state that in those

pictures we saw he did not allude to direct forms of anti-Semitism, but that does not mean that he did not do this in the German, you know, appearances, and also if you see the whole text of the speech in Munich, I would claim this has anti-Semitic sentiments in it. The second one. MR IRVING: Which speech in Munich are you referring to? A. [Dr Hajo Funke]: Yours. Q. [Mr Irving]: Well I spoke in Munich about 30 or 40 times probably. MR JUSTICE GRAY: The one we saw on the video, I imagine.

MR RAMPTON: Can I intervene at that stage, to point something out, and it is this. If we are talking about the first Munich meeting, the one which has “Wahrheit macht frei” and David Irving’s name on the placard underneath it. Our understanding from the diary of Mr Irving, first of all, is that he spoke twice at that meeting, once before the interval and once after.

The second thing, we learned from his reply, that he spoke altogether for about an hour, and that he said he was going to rely on the text of what he said at the trial of this action. MR JUSTICE GRAY: You have not had anything? MR RAMPTON: I have never had the tape or a transcript of it. MR JUSTICE GRAY: Yes. Mr Irving, what about that? MR IRVING: My Lord, obviously, at one time I had anticipated that I had a tape of it.

In fact, I think there is correspondence indicating that I believed I did have a

tape of it, but I have disclosed all my tapes and cassettes to the defence in this matter, nothing has been withheld. I had no idea what was on the video cassettes because I did not have a video player. MR JUSTICE GRAY: In the light of that, Mr Rampton, I think it has to be left to cross-examination. MR RAMPTON: Well, I think it will. There are some other things I want to raise in relation to discovery in cross-examination.

I am a little concerned, however, about the time-scale, because the cross-examination of Mr Irving by me, which might last a day, or a day and a bit, I hope we will be finished this week. MR JUSTICE GRAY: So do I. MR RAMPTON: That will be the last of the evidence. I cannot say any more than that. MR JUSTICE GRAY: No, obviously, I am not going to cut off Mr Irving. I have given an indication that I think the scope of cross-examination of this witness is relatively limited.

You have, if I may say so, taken hints in the past, but you must take your own course, this is not a direction of any sort. MR IRVING: Next week, of course, I will have some submissions to make. MR JUSTICE GRAY: Of course. You both will. Anyway, shall we press on? Is there anything else? MR RAMPTON: Is it appropriate to say something about, if we

are talking about closing speeches, about timing, at this juncture? MR JUSTICE GRAY: Shall we wait until after we have dealt with (if I may so put it that way) Professor Funke? MR RAMPTON: It is only this, that there are a number of people here, and I do not shrink from saying, including me —- MR JUSTICE GRAY: Oh, I see, you mean how long an interval? Is that what you are getting at?

MR RAMPTON: Yes, because there are “social” is the wrong word, but there are what one might call arrangements which have to be made. I have been talking earnestly with Miss Rogers, as I often do, and we are very anxious because of what might happen here after in another place, as the lawyers call it, that we leave no stone unturned to make sure that your Lordship has as much material as we would like you to have.

Of course, I say without any kind of sycophancy, that I am confident that the case is in place already, but I cannot actually, in my client’s interests, take that risk. Therefore, we want to do a long rather than a short job. I can do a short job. I can probably do it from memory, but I do not want to do that. It did seem to us we would need at least a week to get the thing properly in place.

I am strongly of the view, as an advocate, I do remember, like your Lordship, in those days being of similar view, I think that it is not desirable that the Defendant makes a speech before a

weekend and the Claimant or Plaintiff after the weekend. Both should come in the same week. My proposal is that I should start on Monday 13th, which is a week from the coming Monday and that Mr Irving should have as much time as he likes thereafter, subject, obviously, to case control. MR JUSTICE GRAY: Mr Irving, do you have any views about that?

MR IRVING: Whether it would be Monday 13th or not I think is in the stars, because if Mr Rampton wishes to have a clear week, presumably, that clear week starts running from the end of the time I have put in documents and so on by way of submission, which may take more than a day.

MR JUSTICE GRAY: No, well, what I would be inclined to think in terms of, and we might have to revise this, is to have the whole of next week for preparing speeches, and if we do not finish the evidence by close of play on Thursday, then I think perhaps we can nibble into the week, because it seems to me that Monday the 13th would be a good day to have as a target for the start of closing speeches. MR RAMPTON: I would rather nibble into Friday if it came to it.

MR JUSTICE GRAY: Yes, I do not dispute that at all. MR IRVING: I am afraid I do, because there is a German saying (German spoken) which means that a lot of dogs spell death to the hare, and there is a lot of dogs on the other side with no disrespect and there is one hare on this side.

I am carrying the ball entirely myself. MR JUSTICE GRAY: I follow that. MR IRVING: I cherish every day that I have for preparation.

MR JUSTICE GRAY: I tell you what I propose to deal with that, is for you to have the opportunity to indicate during the course of that week, the week prior to 13th March, that you falling behind or whatever, if you really need more time, I do not myself think you will because you have a great capacity for getting through the material, but if you are finding it difficult then obviously I would be very sympathetic to further time.

MR IRVING: I do not necessarily see the reason why it has to be a Monday Mr Rampton has to start unless he intends to speak for three whole days. MR RAMPTON: I doubt he will speak for three whole days but he might speak for the best part of one whole day. MR IRVING: That will allow both speeches to come within of compass of one week. MR RAMPTON: Yes.

I do not mind, I was not (to use a bit of Latin) I was not trying to fix Monday, 13th, as a terminus post quo nome, but as a terminus quo nome, if I can put it like that, meaning to say that I do not mind when it is, but I do not want it before Monday 13th. MR JUSTICE GRAY: I think we are thinking in broadly the same terms. MR RAMPTON: I would only make other observation, it is not

right for Mr Irving to talk about dogs and hares when after all it is a pack of hares that is being chased by one dog. MR IRVING: Rabbits. MR JUSTICE GRAY: Yes. Professor Funke, you have something else to say? You did only mention two, yes. A. [Dr Hajo Funke]: Yes. It relates to the Congress of 21st April ’90 in Munich. I read the diary again and there is clearly described how and what form it was illegal, and that was the reference I had also to write it in my report.

It was illegal demonstration after the Congress, and it is stated very clearly. The other thing I have to mention that to my best assessment the diary and the video converts to that, that at a given period of time he was with marching. THE INTERPRETER: Marching along with? A. [Dr Hajo Funke]: Along with Kuhnen and the others towards the Vertherren Halle. I think it is very clear if you put these things together and also the letters Mr Irving gave us yesterday in the bundle J.

MR JUSTICE GRAY: Thank you very much, Professor Funke, for those three points. Mr Irving? MR IRVING: My Lord, I do not think your Lordship will attach much attention to whether other members of the audience went off on a demonstration which was illegal or not. I would invite straightaway, therefore, this witness to

have a look at page 11 of the little bundle. A. [Dr Hajo Funke]: This new one or the old one. MR IRVING: It is today’s bundle. A. [Dr Hajo Funke]: Today’s bundle? OK. Q. [Mr Irving]: It is the bundle beginning with some German pages. If you look at page 11, that should be the diary concerned, April 21st 1990, is that correct? A. [Dr Hajo Funke]: No, I have here —- Q. [Mr Irving]: No, not photographs. It is another bundle. A. [Dr Hajo Funke]: Excuse me. It is a new bundle of yesterday?

Q. [Mr Irving]: Of today. A. [Dr Hajo Funke]: Today, OK, good. Q. [Mr Irving]: Page 11. Is this the diary entry to which you have just referred? A. [Dr Hajo Funke]: It seems to, yes, in a different written form. Q. [Mr Irving]: A different format, yes? A. [Dr Hajo Funke]: Yes, format.

Q. [Mr Irving]: My Lord, I do not propose to read the whole diary entry out, of course, but I would just invite this witness —- MR JUSTICE GRAY: If Miss Rogers can give me the reference in RWE 1 or 2, I would be grateful for this diary entry, April 21st. MS ROGERS: If it is on 21st April, it is RWE 2, tab 11, pages 19 to 20. MR IRVING: My Lord, what I have given your Lordship in this morning’s bundle is the entire diary entry. I am not sure

how far the entry has been redacted, if at all, in RW—- MR JUSTICE GRAY: Let us move on with it.

Part II: Irving Resumes Cross-Examination of Dr. Funke (11.3-151.25)

Section 11.3 to 21.17

MR IRVING: Would you just run your eye down those two pages which I have given you? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Beginning with the first page, page 11, the second paragraph? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Beginning with the phrase: “The audience stormed out into the streets”? A. [Dr Hajo Funke]: Right. Q. [Mr Irving]: “Taking about half an hour to assemble outside, I remained inside”, does it say that? A. [Dr Hajo Funke]: Yes.

Q. [Mr Irving]: How could I have joined a demonstration if I remained inside? A. [Dr Hajo Funke]: Look —- Q. [Mr Irving]: Selling books, pack —- A. [Dr Hajo Funke]: — look further down to your own diary. Q. [Mr Irving]: Then it says: “Job finished. The driver suggested he drive me to the Hotel Dreilogen? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: “Via the route”, in other words, “driving by the route taken by this spontaneous demonstration”? A. [Dr Hajo Funke]: Yes.

Q. [Mr Irving]: So I was not part of the demonstration; I was driving past

it to see what the fuss was because there had been police flashing lights, and so on? Right? A. [Dr Hajo Funke]: I see it. Q. [Mr Irving]: “I got out of the car” — this is four lines from the bottom “because I sighted my dinner guests. Crossed to say hello to them. There was some annoyance on the part of the demonstrators that I had not been with them”. Did you see that? Why did you not quote that? A. [Dr Hajo Funke]: Right, right. Q. [Mr Irving]: I was not part of the demonstration.

I do not really want, unless you wish to draw attention to any other parts of that diary entry? MR JUSTICE GRAY: I suspect he wants to read on to the bottom of the page, is that right? A. [Dr Hajo Funke]: Shall I read it to the court? Q. [Mr Irving]: No. Read the bits of it that you rely on. MR IRVING: Yes. A. [Dr Hajo Funke]: So, “I sighted Uschi who had invited me to dinner. Got out of car after Daniel Hecht”, I think, “crossed to say hello to them.

Some annoyance on the 250’s part that I had not been with them. I explained I had to pack things up. Two minutes later police trucks arrived with reinforcements. Announced over loud speakers, ‘Dieses ist ein angemieldete Sammlung, es ist verbotten. Sie haben alle nach Hausen zugehen’”. “This is an illegal demonstration”. I can translate it shortly. If you want

it precise, do it, yes. THE INTERPRETER: “This is a translation (sic) which no notice has been given of. It is forbidden. You are all requested to go home”? A. [Dr Hajo Funke]: Right. And I refer to this being “forbidden” in my report —- THE INTERPRETER: Ordered to go home? A. [Dr Hajo Funke]: — or words to that effect. Q. [Mr Irving]: Can I ask?

A. [Dr Hajo Funke]: He adds, so then: “Road cordons were thrown across the street ahead of us and we were told to filter through single and disperse. I found myself in an embarrassing position, unwilling to desert audience, but equally unwilling to end up being coshed by a policeman”. Q. [Mr Irving]: Coshed by a policeman?

A. [Dr Hajo Funke]: Yes. “I filtered forwards and after minutes hold up I was allowed through by the cordons. 30 seconds later I was arrested by a small Italian-looking moustached police officer aged perhaps 35 who declared me to be a versammlungsleiter”. Q. [Mr Irving]: We do not need the rest. A. [Dr Hajo Funke]: This is the point. If you take this part and see the video, there is the moustached and so forth officer and you see before, you know, a march route of a given people.

In the front Mr Irving, behind Michael Kuhnen. So, of course, it was some minutes, but you were asked by

the crowd to enter and you did. MR IRVING: You say some minutes. Can I ask you about the time-scale? A. [Dr Hajo Funke]: I do not know the time-scale. I just saw the video and I saw your diary and I saw another clip of Althans given to Zundel or by Zundel presenting the case further down in this document.

Q. [Mr Irving]: Can I draw your attention to the second line of that second paragraph on page 11: “I remained inside selling the books, packaging them up and supervising their loading into the two cars”. How long do you think that took? A. [Dr Hajo Funke]: I do not know. Q. [Mr Irving]: £2,000 worth of books had to be packaged into boxes, the boxes sealed, loaded into two cars — three quarters of an hour, an hour? A. [Dr Hajo Funke]: I have no problem with that.

I did not say you went all along, I do not know, maybe. There is, by the way, if I may add this, there is a longer version of this video, and if it is necessary, if this is a decisive point for the assessment, if I may add —- MR JUSTICE GRAY: It does not strike me as a decisive point. I think we can move on. A. [Dr Hajo Funke]: Then I would ask to get this to the court, but it is very difficult because it is in the hands of Michael Schmidt and I have to figure out where he is.

MR JUSTICE GRAY: I know what the issue is.

MR IRVING: One more question and this is will you accept, because I asked you this question two or three times yesterday, the video shows clearly that these rather bestraggled demonstrators are actually returning from the demonstration they had been off to at the time I joined them and they are heading north —- A. [Dr Hajo Funke]: That does not fit.

Q. [Mr Irving]: Excuse me, they are heading north at the time I joined them, in other words, it is all over — and do you remember me asking you these questions yesterday? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: And you made out that you could not recognize the victory monument behind them and so on? A. [Dr Hajo Funke]: There is no probability for that.

You know, it fits so well with what you are writing in the diary and what is shown in the video that I cannot say “yes” to this question. Q. [Mr Irving]: So you do not accept that it took me one hour to load the boxes of books into the car and to drive off to the hotel and then come back and find the demonstrators walking back from their demonstration at this time this misfortune happened? A. [Dr Hajo Funke]: I mean, you had a lot of books to sell, but you need not an hour.

I do not know how long it took. Q. [Mr Irving]: Very well. Would you now just have a brief look at photographs, please? The second bundle of photographs.

We will go through these very quickly. Photographs 1 and 2 are photographs of a meeting of the DVU. Can you see their flag around the podium? A. [Dr Hajo Funke]: No, not with this coverage, I mean. Q. [Mr Irving]: All right. A. [Dr Hajo Funke]: I cannot see. Q. [Mr Irving]: If you look at the people sitting in the audience there, can you see any skinheads or bovver boots? A. [Dr Hajo Funke]: I cannot see. It is so dark, you see, your Lordship. I cannot see it.

Maybe —- MR JUSTICE GRAY: Look at page 2. It is better. MR IRVING: Perhaps you can borrow mine a second. A. [Dr Hajo Funke]: That is better, excuse me. Q. [Mr Irving]: Can you see any skinheads or bovver boots or musclemen? A. [Dr Hajo Funke]: I cannot say yes or no, because, you know, in the first, in the first lines they are all with ties and, you know, as DVU presents itself. Q. [Mr Irving]: And the next photograph is a bit clearer?

A. [Dr Hajo Funke]: But I cannot say yes to your question because afterwards it is totally unclear and I know that DVU has this kind of skinhead appearances. MR JUSTICE GRAY: Yes, that is that photograph. MR IRVING: Can you see any banners around the hall with anti-Semitic slogans or Holocaust slogans or anything at all? A. [Dr Hajo Funke]: No.

Q. [Mr Irving]: No banners at all? A. [Dr Hajo Funke]: No. Q. [Mr Irving]: The next photograph, page 3, please? A. [Dr Hajo Funke]: 3? Q. [Mr Irving]: Does this appear to be police protecting a rather pleasant country building against a number of young people? A. [Dr Hajo Funke]: It seems to. Q. [Mr Irving]: Yes. A. [Dr Hajo Funke]: What is it? Q. [Mr Irving]: It is in Cologne. I will have to tell you, you will have to just take my word for where these places are.

The places are not important really. The next photograph, photograph 5 — we will just go through them very quickly — is the Congress Centre in Hamburg? A. [Dr Hajo Funke]: Right. Q. [Mr Irving]: Do you see again a line of police protecting the building against, no doubt, unfriendly people outside? A. [Dr Hajo Funke]: I cannot say unfriendly, I just see police caps. Q. [Mr Irving]: Shoulder to shoulder, massed against — protecting the entrance to the building?

A. [Dr Hajo Funke]: I cannot say anything else because it is unclear. I do not know where and when, so… Q. [Mr Irving]: Yes. A. [Dr Hajo Funke]: You may say. Q. [Mr Irving]: Would you like to have a look at photograph No. 9, please? This is the Palace of Culture from Dresden which

is one of the lectures you refer to, 13th February 1990, I think. There are no kinds of banners or placards or anything anywhere, are there? A. [Dr Hajo Funke]: It seems not. There is a picture, you know, I think you are speaking there, and —- Q. [Mr Irving]: And a picture of myself on the podium? A. [Dr Hajo Funke]: Yes, seems to, but I do not know what is written around, above and… MR JUSTICE GRAY: No, we cannot read that. MR IRVING: Photograph No. 10 is obviously some years earlier?

A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Does it look as though I am addressing members of the German Bundeswehr that this is obviously a function —- A. [Dr Hajo Funke]: Yes, seems to, at least the uniforms they are wearing. Q. [Mr Irving]: Photograph No. 11 is the Leuchter press conference to which you refer. It is a sparsely attended press conference? A. [Dr Hajo Funke]: Where is it? Q. [Mr Irving]: Have you got photograph No. 11? A. [Dr Hajo Funke]: Yes, but where?

Q. [Mr Irving]: It is in my home in London. A. [Dr Hajo Funke]: OK. Q. [Mr Irving]: Photograph 12, another typical speech that I address in Germany? A. [Dr Hajo Funke]: Where is it? Q. [Mr Irving]: That is somewhere in Battenwurtenburg, Singlfingen,

I think? A. [Dr Hajo Funke]: Is it Dria? Q. [Mr Irving]: I beg your pardon? MR JUSTICE GRAY: Well, it does not really matter, does it? I am not sure these photographs are helping all that much, Mr Irving. MR IRVING: There are no placards, no skinheads. No. 14, I think you probably have my labels now? A. [Dr Hajo Funke]: Yes, Hagenau you say? Q. [Mr Irving]: No. 14 is Hagenau. A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Can you see any of your suspects in that photograph?

A. [Dr Hajo Funke]: What are you saying? Q. [Mr Irving]: Any of your suspects, like Remer or Kussel or any of these names you are talking about? Are they in that photograph or the next one? A. [Dr Hajo Funke]: I have to put up this… Q. [Mr Irving]: These photographs were all available for discovery, my Lord, and not used. Photograph No. 16 —- A. [Dr Hajo Funke]: Wait, wait. I have to see the people. Excuse me. It is not so easy. You know better.

It is just 10 faces to 10 faces, right, to see and whatever 80, I cannot see. Q. [Mr Irving]: Would you say it is a very extremist just by the look of it? MR JUSTICE GRAY: Well, you cannot possibly answer from the backs of people’s heads whether they are extremist.

MR IRVING: Precisely. Your Lordship has made exactly the point I was hoping that the witness would make. Photograph 16, is that the Lowebrau Bierhall in Munich? A. [Dr Hajo Funke]: I do not know, maybe. Q. [Mr Irving]: Obviously dressed up for some kind of function, listening to me speak? A. [Dr Hajo Funke]: Where is it? When is it? Q. [Mr Irving]: In Munich. A. [Dr Hajo Funke]: When is it? Q. [Mr Irving]: Probably about 1984, thereabouts, 1989.

That again is the kind of audience — they do not look particularly extreme or violent? A. [Dr Hajo Funke]: In ’94 you were in Germany? Q. [Mr Irving]: No, ’84. No. 17, there is a meeting to which you refer. Is it not a demonstration, photograph No. 17? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: German historians, liars and cowards? A. [Dr Hajo Funke]: Who is the left person? Q. [Mr Irving]: That is Mr Pedro Varela. Do you recognise him? A. [Dr Hajo Funke]: OK. Q. [Mr Irving]: Yes.

Does he look like a violent person or extreme? MR JUSTICE GRAY: Well, again…. MR IRVING: The point is it is difficult to judge by appearances. I mean, I might be violent or extreme. The point I am trying to make, witness, and would you agree with, is, it is difficult to tell when you look at an

audience who the people are? We do not know who is in this court room, we might have John George Hague, the acid bath murderer. He might be one of these members of the public or someone like that and we do not know, do we? MR JUSTICE GRAY: Mr Irving, the case against you is not that these people look like extremists, but that they have a track record of extremism and that you associated with them. So I do not think we want to spend terribly long on their physical appearance. MR IRVING: Yes.

But unless I am mistaken also the case against me is in part that these extremist organisations that I have been addressing, you would have expected all the trappings, “bovva boots”, skinheads and flags — MR JUSTICE GRAY: I follow that point. MR IRVING: And the rest of it. These, on the face of it, these meetings appear to be respectable, middle-class, rather boring lectures.

Section 21.18 to 59.9

(To the Witness) Now I would like to return to your report, please, page 39. A. [Dr Hajo Funke]: Just a second. Q. [Mr Irving]: You refer to the NPD, can I ask you the simple question; is the NPD illegal or banned? A. [Dr Hajo Funke]: Just a second. What page? Q. [Mr Irving]: Page 39 of your report. A. [Dr Hajo Funke]: So be it. Q. [Mr Irving]: Is the NPD — it is a political party in Germany, is it

not? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Is it illegal or banned? A. [Dr Hajo Funke]: It is not banned. Q. [Mr Irving]: So there is no reason why one should not address if one was invited to a function organized by NPD, or is there? A. [Dr Hajo Funke]: I stated yesterday it is formally not legal, but it is perceived by the social sciences, as well as by the official institutions as a hardcore, right-wing extremist.

Q. [Mr Irving]: Yes, well, we know how much weight we have attach to that, I think. A. [Dr Hajo Funke]: No, we are different on that. Q. [Mr Irving]: Yes, but the left wing — MR JUSTICE GRAY: Well, do not argue about it, we have the evidence. MR IRVING: You mention Franz Schonhuber, I am not going to dwell upon him, but he was a popular Bavarian television host? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Which is how I first came to know him. I was on his show, is that correct?

A. [Dr Hajo Funke]: I did not — Q. [Mr Irving]: So that is how I first came to know him. Lower down that page you refer to a man at 4.1.3, a man, Gottfried Kussel, do you have any evidence at all that I have any kind of contacts with Mr Kussel?

A. [Dr Hajo Funke]: — you were at the same demonstration, for example. Q. [Mr Irving]: Being in the same room, that kind of thing? A. [Dr Hajo Funke]: I alluded to that, that that is different and the Halle demonstration, he was at the top of this demonstration and that shows something for this kind of demonstration. It is not like a, you know, anarchist way, they are this and they are the others, he was at the top of the demonstration.

Q. [Mr Irving]: You mean at the front — A. [Dr Hajo Funke]: He represented, at the head of it, yes, and he represented the new leadership of the Kuhnen connection where you spoke to. Q. [Mr Irving]: — yes. A. [Dr Hajo Funke]: To whom you spoke. Q. [Mr Irving]: I do not want to interrupt you, but we certainly do not want to view that video again unless his Lordship orders, but you are not suggesting in any of those shots showing Mr Kussel I was also visible?

A. [Dr Hajo Funke]: The shots we did not see shows the hotel hall in the longer version and I saw it several times, and there the people went out and in, and you were asked you if you would — so far as I recall, but we have to see it then again, if you will also meet Kussel and you said something I cannot recall. So it was — you were aware somehow, and you drove to Halle I think three hours or more from Hamburg with Uschi or Ursula Worch, one of the leaders of

this Kuhnen connection at that time, so you may have known, and if not it seems, for me at least, you are responsible not to whom you speak to. Q. [Mr Irving]: So to boil down what you are saying, what you are saying is I was in the same large city as Kussel and that he was at the head of the demonstration on shots of film we have seen but I am not in those shots and that you say there are other shots of film — are you saying that I am together with him in those shots of film?

A. [Dr Hajo Funke]: I do not know. But you were together at the meeting, he — if we go very carefully through the video again I think you will see him at the spot where you spoke. So you cannot deny, you cannot deny that this is a Kussel/Kuhnen connection, demonstration to whom you spoke. This is a clear cut case. You know it. Q. [Mr Irving]: Now you are bringing in Michael Kuhnen.

We have already established that I have no contact whatsoever with Michael Kuhnen — A. [Dr Hajo Funke]: It does not matter, we refer — we agreed even to call these groups “the Kuhnen crew” or “the Kuhnen connection”, we can also say “Sinnungsgemeinschaft”. So I know what I am speaking about. These groups at that very meeting at 9th November ’91 met.

These were clear cut neo-Nazi groups organized by Christian Worch, by Uschi Worch and you were invited by Uschi Worch the other day in the evening, according to a diary, to meet this demonstration

and to talk to them. MR JUSTICE GRAY: Yes, this is getting a bit repetitive, if I may say so, I have the evidence about Kussel. I think he can move on now. MR IRVING: Yes. Footnote 117 on that page, 39, we find Deckert, how many meetings do you think that the schoolteacher, Dr Deckert, organized for me as chairman? A. [Dr Hajo Funke]: — I do not know, you know better. Q. [Mr Irving]: Two meetings; is that right? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: One in Stuttgart and one in Weinhart?

A. [Dr Hajo Funke]: Could be, yes. Q. [Mr Irving]: Both reputable bodies? A. [Dr Hajo Funke]: Excuse me? Q. [Mr Irving]: Both reputable bodies, the one in Stuttgart was to a veterans association, the one in Weinheim was to some other little splinter group? A. [Dr Hajo Funke]: I do not know, you know better.

But I know what you spoke to and who Deckert is, and for the Lordship I just want to remind you that this is very famous and influential member of the NPD at that time, and got a bit later the leadership of this same NPD, and in which in that time the NPD radicalized with respect to hardcore revisionism, and with respect, and this is even for my assessment more important, radicalized in organizing these groupings we are talking — we talk just a minute — we talked just a

minute about — no, we talked about just a minute ago, for example, in Halle. Q. [Mr Irving]: Yes. A. [Dr Hajo Funke]: These groupings came after they were banned in ’92, ’93, ’94, ’95, all the more to this NPD organized and led by this Deckert, so a you have good friend. Q. [Mr Irving]: You are talking ’92, ’93, ’94, it is getting rather vague now, because from ’93 onwards I was never in Germany? A. [Dr Hajo Funke]: Oh, no, I can be very precise.

I said bans were sent to these groups from ’92 onwards. Q. [Mr Irving]: Can I make it very simple for you — A. [Dr Hajo Funke]: You were there, or you could go into the country, and you did up to the end of ’93. Q. [Mr Irving]: — 9th November 1993. Let me make simple for you, Dr Funke, and ask outright, do you know of any occasion when I addressed a meeting to an organization which was at that time illegal or banned in Germany?

A. [Dr Hajo Funke]: So far I know you do not address a meeting that was banned — of a group that was banned at that time. Q. [Mr Irving]: Thank you. A. [Dr Hajo Funke]: That was not my point at all. Q. [Mr Irving]: You say you have seen the correspondence between myself and Gunther Deckert who is one of names on the list? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Your footnote on page 39. A. [Dr Hajo Funke]: Yes, OK.

Q. [Mr Irving]: Was there anything extremist about that correspondence? A. [Dr Hajo Funke]: We go into the correspondence. MR JUSTICE GRAY: Well, if we must, yes, but — MR IRVING: Can I ask you if there was any anti-Semitism expressed in that correspondence? A. [Dr Hajo Funke]: I have to go into — you know, piece by piece and then we can decide. MR JUSTICE GRAY: RWE 2, tab 8. A. [Dr Hajo Funke]: 2, tab 8, excuse me, I am not familiar with this (Pause).

MR JUSTICE GRAY: I am sorry, did I tell you the wrong one, it is my fault, maybe it is 9, RWE tab 9. MR IRVING: I am not sure this is the right way to do this, my Lord. MR JUSTICE GRAY: Well, this is not really your fault. I think this is not going to be a productive exercise. If you do not object, Mr Irving, do you mind me asking Mr Rampton, he may not be able to help off the top of his head, but is there anything you particularly rely on in the Deckert correspondence as being extremist?

I have looked through the index and there does not appear to be anything. MR RAMPTON: Not as being explicitly extremist, no. MR JUSTICE GRAY: Otherwise, we will spend half an hour trawling through for no purpose. MR RAMPTON: I quite agree. If I should find something — MR JUSTICE GRAY: You can re-examine. MR RAMPTON: Then I shall include it in some submissions later.

MR JUSTICE GRAY: Or re-examination. MR IRVING: Let me ask, Dr Funke — A. [Dr Hajo Funke]: Just a second, can I just go through 30 seconds more? MR JUSTICE GRAY: Yes, if you find some extremist references. MR IRVING: That will be very helpful. MR RAMPTON: I would not expect to find it in the correspondence anyway. MR JUSTICE GRAY: Nor would I , which is why I wonder what the purpose of this is. A. [Dr Hajo Funke]: — oh, yes. MR RAMPTON: I would, would I?

A. [Dr Hajo Funke]: Yes, you would, I have one, but I want to use my 20 seconds. MR JUSTICE GRAY: You might extend that briefly. A. [Dr Hajo Funke]: I am not — I refer to the following, it is II, it is at the beginning of No. One, tape 8, and the second page, 12th May ’91, right. Do you have it? II. Q. [Mr Justice Gray]: Yes.

A. [Dr Hajo Funke]: There in the middle it is stated, but I have to check what are the references, the audio cassette and what have you, “in three/four years, at the latest, these legends will no longer hold water the legend will be over and then the tables will be turned and the whole” and so forth drowned out in past. This statement, if this is included in what you referring to here, we have to go to the sentence before and after, so far I see it can be referring to the

Holocaust thing. If so, then of course it fits in my perception of what is extremist. MR JUSTICE GRAY: Thank you very much. MR IRVING: He organized a meeting for me in Weinheim

on September 3rd 1990, did he not, nearly ten years ago now; is that right? A. [Dr Hajo Funke]: Yes, it is the time that is of interest. Q. [Mr Irving]: Yes, he has been in prison for seven years for being chairman of that meeting, has he not? A. [Dr Hajo Funke]: I do not think so, seven years, but — Q. [Mr Irving]: He is still in prison now? A. [Dr Hajo Funke]: — but several times, for a quite lot of time, right. MR JUSTICE GRAY: Yes.

MR IRVING: Paragraph — do you approve of the imprisonment of people for chairing meetings where historians speak? MR JUSTICE GRAY: Well, I do not think that is helpful. MR IRVING: Paragraph 4.2.6 on page 42, you mention — A. [Dr Hajo Funke]: OK, just a second I have to, it is not so wide this space. 42, you say? Q. [Mr Irving]: — page 42, paragraph 44.2.6. A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: You mention Worch, Christian Worch and his wife Uschi? A. [Dr Hajo Funke]: Yes.

Q. [Mr Irving]: You rightly say that I am close friends or was close friends with that family. Worch is a trained lawyer, is he not?

A. [Dr Hajo Funke]: I do not know that he is a trained lawyer, but he was a kind of assistant to a lawyer, and in that function he acted also in his political. Q. [Mr Irving]: Had he not studied law? A. [Dr Hajo Funke]: So far I know he was in the lawyer — as a lawyer’s firm as an assistant. He did not study law so far as I know. Q. [Mr Irving]: At the time — A. [Dr Hajo Funke]: To my best knowledge. Q. [Mr Irving]: — at all material times had he a criminal record?

A. [Dr Hajo Funke]: Excuse me? Q. [Mr Irving]: At all the material times that I was dealing with him had he a criminal record, to your knowledge? A. [Dr Hajo Funke]: Yes, there was — he was sentenced, yes. Q. [Mr Irving]: What, under German laws for suppression of free speech or under regular criminal… A. [Dr Hajo Funke]: I mean under regular German law that includes some limits to freedom of expression. You know that.

Q. [Mr Irving]: Well — MR JUSTICE GRAY: The point was, it was put in a slightly tendentious way, but were these conviction for speaking about the Nazi era? A. [Dr Hajo Funke]: — yes, I have to look up. It was in the —- Q. [Mr Justice Gray]: Well, did he have any convictions which were for petty theft or burglary? A. [Dr Hajo Funke]: Because of his activities, yes, definitely. MR IRVING: He is another politically incorrect friend of mine?

A. [Dr Hajo Funke]: You say so. Q. [Mr Irving]: No, that is the question, as viewed from the left, he is politically incorrect? A. [Dr Hajo Funke]: I only refer to letters, that includes the German law and you may call this “political correctness” what the German laws are doing, fine with you.

Q. [Mr Irving]: I do not want to have too long answers to this, but under German — A. [Dr Hajo Funke]: Very short — Q. [Mr Irving]: — under the German constitution freedom of speech is protected, is it not? MR JUSTICE GRAY: I think I know what the position is. MR IRVING: But except for one exception. MR JUSTICE GRAY: I do not think we need any questions and answers about it. A. [Dr Hajo Funke]: — no, there are more than one exception. MR IRVING: Paragraph 4.2.14, page 45.

A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: You mentioned here on line 5 a lunatic, in my view, called Gary Lauck? A. [Dr Hajo Funke]: What line? Q. [Mr Irving]: Line five, you mention a American gentleman of questionable mental stability, in my view, called Gary Lauck? A. [Dr Hajo Funke]: Yes. MR JUSTICE GRAY: He is not on the list.

MR IRVING: Is he not on the list? Am I not going to be questioned about Lauck? MR JUSTICE GRAY: Well, he is not on list and I am therefore assuming he is not one of those who is relied on by the Defendants as a right-wing extremist associate. MR IRVING: Paragraph 4.4.1, this is not one of the people that is a reference to the Leuchter report, Anthony Zundel. It is accepted, of course, that I know Zundel and I have had contact with Zundel, right?

You state in paragraph 4.4.1 in line 4 that “he was found guilty of peddling anti-Semitic propaganda”; was that the actual charge? A. [Dr Hajo Funke]: I have to look. Can you translate this sentence to be very precise. Q. [Mr Irving]: Line 4? A. [Dr Hajo Funke]: To my best knowledge, but maybe there is more to it. Q. [Mr Irving]: Yes, he was not actually convicted of peddling anti-Semitic propaganda, the charge was spreading false information?

A. [Dr Hajo Funke]: Yes, but this kind of false information, I would call it, that is in the realm of anti-Semitism, so it is my judgment, or my assessment to that. Q. [Mr Irving]: But you accept that that is not actually what he was charged with or convicted — A. [Dr Hajo Funke]: No problem with it. Q. [Mr Irving]: — you also accept the conviction was subsequently overturned by Canada’s Supreme Court?

A. [Dr Hajo Funke]: So far as I know. Q. [Mr Irving]: And that he has no convictions, he is free of any conviction? A. [Dr Hajo Funke]: I do not know if he is now free of any conviction. Q. [Mr Irving]: Let me put that the other way round, are you aware of any conviction against him which has been upheld? A. [Dr Hajo Funke]: I do not know, I have to say I do not know. Q. [Mr Irving]: If no conviction against Ernst Zundel has been upheld he is less of a convict than I am?

MR JUSTICE GRAY: I do not think the point is whether these people have convictions, Mr Irving, it is what they say and do, not whether they are found to be guilty of some local law. MR IRVING: It is a question of degree, my Lord. People like Anthony Eden or Lord Halifax, as we know, made anti-Semitic remakes in private and other people go around smearing swastikas on synagogue.

One end of the scale is a criminal conviction, other end of the scale is people’s rather tasteless private rights to freedom of speech. MR JUSTICE GRAY: The point I am trying to make is what they do and say, not whether they are convicted or whether they are not. MR IRVING: The fact they are convicted or not is a useful indicator for us as to the severity of the anti-Semitism which has been a component of their actions, in my view. MR JUSTICE GRAY: Yes.

MR IRVING: Or a possible one. MR RAMPTON: So then are Mr Irving’s convictions going to stand here in this court as evidence of his guilt of anti-Semitism? MR JUSTICE GRAY: I understand the intervention, but the answer is “no”. MR RAMPTON: Quite. MR IRVING: Not a very helpful interruption. 448, I am sorry still stay on paragraph 4.4.1. A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: You refer there to the Leuchter report? A. [Dr Hajo Funke]: Yes.

Q. [Mr Irving]: Towards the end of it you say you the report was not accepted by the court. Are you aware that under Canadian rules of evidence engineering reports like that are accepted only if both parties agree in advance, so it had nothing to do with the quality of the report? MR JUSTICE GRAY: I do not think this witness can possibly answer that. MR IRVING: No, my Lord.

He has stated broadly it was not accepted — MR JUSTICE GRAY: Well, it was not ever put in evidence in the Canadian proceedings. MR IRVING: My Lord, I will make submissions when the time comes. MR JUSTICE GRAY: All right, but not through this witness,

I think. MR IRVING: 4.4.8, that was just little bit of advertising that I will be making submissions when the time comes on that, my Lord. MR JUSTICE GRAY: Thank you very much. MR IRVING: Paragraph 4.4.8, you are refer to a body called GdNF, not for the first time. A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: What is the GdNF? I had lost track of it by this time — A. [Dr Hajo Funke]: The Kuhnen connection, we spoke at length yesterday about it.

Q. [Mr Irving]: — well, then I can ask this simple question as it has involved Mr Kuhnen, is there any evidence in any of my diaries or private correspondence to which you had complete access of my knowledge of a body called GdNF? A. [Dr Hajo Funke]: Yes, you have been blank interaction with Christian Worch. He is one of main activists.

Q. [Mr Irving]: That is not my question, my question was is there any reference whatsoever to GdNF, which frankly I have seen for first — A. [Dr Hajo Funke]: It is my shortening, GdNF. It is the shortening of the OPC. In Germany you may call different. MR JUSTICE GRAY: You have not realized it is the Gesinnungsgemeinschaft. MR IRVING: The way he put it in his acronym I assumed it was something like NATO, which is not a figment of

imagination, this is a figment of the witness’s imagination and need to be recognised as such, in the transcript in my view. A. [Dr Hajo Funke]: — it is the Gesinnungsgemeinschaft. We talked about that and we know what the body of it — MR JUSTICE GRAY: Yes, we know about that. MR IRVING: Paragraph 5.1.4, back to our friend Mr Althans. A. [Dr Hajo Funke]: — 5.1.4, yes.

Q. [Mr Irving]: You rightly say that in my diary I refer to him as being a bit of a Nazi, that is at first blush, having just first met him, right? A. [Dr Hajo Funke]: Yes. So at least one of the first meetings right, a bit of Nazi but helpful. Q. [Mr Irving]: A bit of Nazi but helpful. I do not want to ride too much on that paragraph. Would you imply that if you read that I regard being a bit of a Nazi as being a negative factor rather than a positive factor?

A. [Dr Hajo Funke]: Here you write as if it is a bit of a negative factor. Q. [Mr Irving]: In my private diary? A. [Dr Hajo Funke]: But on the same token, in the same sentence you say: He is though helpful. Q. [Mr Irving]: Yes. You are weighing one then against other the other rather like Schroder, Hitler’s private secretary, she was probably a bit of a Nazi , but she was very helpful, too —- A. [Dr Hajo Funke]: You say a bit later again something like that, “in

November ’89 he was still a bit of a Nazi. He is a very useful young man, 23 but looks older and tougher”. Q. [Mr Irving]: Yes. A. [Dr Hajo Funke]: Or you refer to him in November driving to Strasbourg with Althans and his skinhead friend to attend Christopher’s meeting in Hagenau. Q. [Mr Irving]: If I say I am driving to Strasbourg with somebody’s skinhead friend does that imply that I am raising my eyebrows slightly or that I am jolly happy that this guy is a skinhead?

A. [Dr Hajo Funke]: You met them. You shared their car. You went to Hagenau, to very hardcore revisionist, anti-Jewish meeting in Hagenau with this Zundel Juden pack statements. You were then — you got a dinner. You were invited by this “bit of a Nazi but helpful Althans” to a dinner before the Wahrheit macht frei Congress with Philip Deckert — Q. [Mr Irving]: Can we take this in sequence, please.

A. [Dr Hajo Funke]: — of course, again — Q. [Mr Irving]: This was the skinhead, so he was there, he is still around? A. [Dr Hajo Funke]: Yes. Q. [Mr Irving]: Can you say from your knowledge of my private diaries that my original impression of Althans, this man who has been to Israel, my impression was very favourable — A. [Dr Hajo Funke]: You did not say that he has connections at that time in your diary. I read it yesterday night. You said it at the

end, in ’97 or so, so this is why it came to surprise to me. I never have known about that, because he was from 14 years old and on with Remer, you know, this very — even you want — did not want to be aligned with him, person. So it is a total surprise. I know this organization very good, and to be very personal I like this organization. Q. [Mr Irving]: — the actual zunnerzeit? A. [Dr Hajo Funke]: Yes, right.

Q. [Mr Irving]: Have you not seen the correspondence back in early 1990 or late 1989 where I received a letter from somebody who told me about Althans’s visit to Israel? A. [Dr Hajo Funke]: The visit seems to my recollection, but not to zunnerseiten, because that I would have — Q. [Mr Irving]: Registered? A. [Dr Hajo Funke]: Registered, because I know this organization. It is a Berlin based organization and that is why I know it.

Q. [Mr Irving]: — just the general overview of my diaries over the three years of this unfortunate association with Mr Althans, my initial impression of him were favourable because he was young and full of initiative? A. [Dr Hajo Funke]: Right. Q. [Mr Irving]: But I rapidly became disillusioned with him; is that right? A. [Dr Hajo Funke]: Rapidly — but you know in early 1990s, in 1991 it starts — and even in ’90 you were a bit disgusted by his hotheadedness, as you would put it.

Q. [Mr Irving]: There were various reasons, but you agree finally my impressions of him were highly unfavourable and I warned everyone against him? MR JUSTICE GRAY: At what time are you suggesting that happened, Mr Irving? MR IRVING: Over a period of three years, two years probably because by 1993 I was out. I had had no dealings with him for long time by then. MR JUSTICE GRAY: So your disillusionment started when?

MR IRVING: I am just about to put to this witness a number of diary entries on Althans which may help to flesh that out, very brief entries and I have to put them to you in the form of putting them to you and I will show them to if you wish and you may well have them in front of you.

On September 30th 1989, two lines, “Althans phoned the hotel” that is in Berlin “he said he would phone again” — A. [Dr Hajo Funke]: ’89 you say? Q. [Mr Irving]: — yes. I stayed in for this, but he did not call back poor manners, poor manners? MR JUSTICE GRAY: Well, that is not your best point, Mr Irving. MR IRVING: November 6th. MR JUSTICE GRAY: Move on to the next one.

MR IRVING: November 6th 1989, I learn that he spent ten days in jail for a technical offence involving the president von Weisecker (?); do you have that entry? A. [Dr Hajo Funke]: Yes.