The Nizkor Project: Remembering the Holocaust (Shoah)

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Judgment Approved by the court for handing down
(subject to editorial corrections) David Irving - v - Penguin
Books Ltd and Professor Deborah Lipstadt

2

                               
                                                              
                                         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            Responden
               (2) Professor Deborah Lipstadt           ts

           - - - - - - - - - - - - - - - - - - - - -
           - - - - - - - - - - - - - - - - - - - - -
                               
 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


4.   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.

5.   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

6.   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".
     
7.   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

8.   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.
     
9.   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


10.  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."
          

11.  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.
     
12.  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.
13.  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.
14.  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.
15.  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.
16.  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".
17.  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.
18.  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.
19.  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

20.  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 distinction 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

21.  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

22.  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.
     
23.  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.
24.  That being so, such force as Mr Davies's second
submission 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.
25.  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.
26.  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.
27.  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

28.  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".
     
29.  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

30.  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".
     
31.  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

32.  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.
     
33.  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."
          

34.  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.

35.  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.
     
36.  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.
37.  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 Olre'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
Hss, 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.
38.  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".
39.  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.
40.  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.)

41.  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."
     
42.  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."
          

43.  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).
     
44.  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

45.  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, Olre, Hss 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.
     
46.  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."

47.  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

48.  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
     
49.  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

50.  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)

51.  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."
          

52.  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,  rather than Lida  Baarova,
          was the reason why he would write this mea
          culpa  to Hitler six years later: 'In  the
          twenty  years that I have been  with  you,
          particularly  in  1938 and  1939,  I  have
          occasioned   you   much  private   grief.'
          Ribbentrop  relates that when  he  tackled
          Hitler about the damage Goebbels had done,
          Hitler rejoined that this was true, but he
          could not let the propaganda minister go -
          not  when  he was just about to  need  him
          again."
          

53.  It  is  not disputed that the judge was entitled to  have
     regard to the contents of Goebbels when considering whether
     the defence of justification was established notwithstanding
     the  fact that its publication (1996) post-dated that  of
     Professor Lipstadt (1994). In Cohen v Daily Telegraph Ltd
     [1968] 1 WLR 916, Lord Denning, at p 919, cited Maisel  v
     Financial  Times Ltd [1915] 3 KB 336 and Godman  v  Times
     Publishing Co Ltd [1926] 2 KB 273 and stated:
     
          "Those cases show that, in order to  prove
          that  the words are true, particulars  can
          be  given of subsequent facts which go  to
          support  the  charge.  Thus,  if  a  libel
          accuses a man of being a 'scoundrel,'  the
          particulars  of justification can  include
          facts  which  show him to be a  scoundrel,
          whether they occurred before or after  the
          publication."
          

54.  Mr  Davies  makes the point, when dealing with  this  and
     other events, that the relevant passage in the applicant's
     publication is a very small part of the whole. In this case,
     it is less than a page in a book of over 500 pages plus over
     150 pages of "notes to sources". Notwithstanding the brevity
     of the passage, the judge was entitled to hold that the light
     it throws upon the approach of the applicant to important
     historical events is important.
     
55.  In our judgment, the judge's summary of the effect of
that passage in Goebbels is apt:
          "13.15      Readers  of  the  account   in
          Goebbels  of  the  events  of  9  and   10
          November  1938  were given  by  Irving  to
          understand    that    Hitler    bore    no
          responsibility  for the  starting  of  the
          pogrom and that, once he learned of it, he
          reacted  angrily and thereafter intervened
          to call a halt to the violence."
          

56.  The  judge considered the evidence on which the applicant
     relied and stated that in his view (13.17) the applicant ought
     to  have approached the accounts he was given by Hitler's
     adjutants  many years after the event "with  considerable
     scepticism and rejected them where they conflict with the
     evidence of the contemporaneous documents both before and
     after 1am on 10 November". Having made other findings adverse
     to the applicant, the judge concluded (13.18) that:
     
          "The  claim that during that night  Hitler
          did   everything  he  could   to   prevent
          violence   against  the  Jews  and   their
          property  is  in  my judgment  based  upon
          misrepresentation,   misconstruction   and
          omission of the documentary evidence."
          

57.  Mr  Davies submits that it is not perverse to prefer oral
     to documentary evidence. An historian is entitled to a very
     broad  measure of judgment. The point at which Mr  Davies
     attacks the judge's analysis of Kristallnacht is in an alleged
     failure by the judge to appreciate in his conclusions the
     significance of a telegram emanating from Gestapo Headquarters
     at 3.45am (the Bartz telegram). It is referred to at footnote
     49,  one  of  eight footnotes to the relevant account  in
     Goebbels, though not in the text. However, it emerged, that
     the applicant himself had not mentioned it in the course of
     his evidence, when it could have been the subject of analysis
     and cross-examination, but only in his closing submissions.
     Even had it been subject to debate in the course of the trial,
     and having regard to its timing, it is difficult to see what
     doubt it could have cast upon the judge's conclusions on this
     issue.
     
58.  The judge analysed the evidence carefully. His reference
to documentary as against oral evidence was not a
generalisation but a view upon the particular facts of the
case. The documents were contemporaneous; the oral account of
Hitler's adjutants were given "many years after the event".
The judge concluded (13.16) that "an objective historian would
in my view dismiss the notion that Hitler was kept in
ignorance until a relatively late stage." He added (13.17)
that "to write, as Irving did, that Hitler was 'totally
unaware of what Goebbels had done' is in my view to pervert
the evidence."
59.  Mr Davies, on this and other factual issues, has been
unable to cast significant doubt upon the judge's conclusions
on the evidence. The judge accepted, and was entitled to
accept, Professor Evans' construction of the telex sent by
Hess at 2.56am. He said that the order read (5.60):
          "On  express orders from the very  highest
          level, acts of arson against Jewish  shops
          and  the  like  are under no circumstances
          and under no conditions whatsoever to take
          place."
          
     That,  the  judge concluded (13.18), "was not  a  general
     instruction  to  'halt  the  madness'  [as  described  in
     Goebbels p 277] but rather to stop acts of arson  against
     Jewish  shops and the like, so permitting other  acts  of
     destruction  to continue and Jewish homes and  synagogues
     to be set on fire."

The shooting of the Jews in Riga

60.  The judge concluded that a total of about 5,000 Jews were
     shot in Riga on 30 November 1941. General Bruns had then been
     a colonel stationed in Riga. In captivity in 1945, he was
     surreptitiously recorded as saying that a junior officer named
     Altemeyer had told him that the Jews were to be  shot  in
     accordance with the Fuhrer's orders but that Altemeyer showed
     Bruns another order "prohibiting mass shootings on that scale
     from taking place in future. They are to be carried out more
     discreetly".  In  Hitler's War, (American  edition),  the
     applicant referred to the order as Hitler's "renewed orders
     that such mass murders were to stop forthwith". No reference
     was made to the words "on that scale" or to the words "they
     are to be carried out more discreetly".
     
61.  The judge concluded (13.24) that the applicant had
"perverted the sense of Bruns's account". Mr Davies submits
that the reason the applicant treated the evidence in the way
he did was that there was contemporary corroborative evidence,
for example a signal from Himmler and the fact that the
shootings did stop for many months. There was corroboration
for the first part of Bruns's statement but there was not a
shred of corroboration for the suggestion that "the shootings
are to be carried out [that is to continue] more discreetly".
We are entirely unpersuaded by that argument. The judge held
(13.24) that "an objective historian is obliged to be even
handed in his approach to historical evidence: he cannot pick
and choose without adequate reason". The alleged absence of
corroboration for one part of an account which clearly bears
upon and is related to the other part does not justify the
selectivity involved in failing to mention the uncorroborated
part at all. Had the applicant cited the whole of the passage,
he may fairly have been able to add the comment now relied on
in expressing his overall view. To fail to refer at all to one
part is, as the judge found, a perversion of the sense of
Bruns's account.
The Schlegelberger note

62.  The judge introduced the issue in this way:
     
          "5.151     One central document  cited  by
          Irving  in support of his case that Hitler
          consistently  intervened to  mitigate  the
          harm  sought to be done to the Jews  is  a
          note  said  to  have been dictated  by  an
          official in the Reich Ministry of Justice,
          namely,  Schlegelberger, which is  undated
          but  which  is claimed to have  come  into
          existence  in  the spring of  1942,  which
          records  what he has been told by Lammers,
          a    senior   civil   servant    at    the
          Reichskanzlerei:
          
               'Reichsminister informed me that  the
               Fuhrer has repeatedly declared to him
               that  he  wants  to  hear  that   the
               solution  to the Jewish question  has
               been postponed until after the war is
               over'.
               
          That  note,  says Irving, is  incompatible
          with the notion that Hitler authorised  or
          condoned  the  wholesale extermination  of
          Jewry during the war."
          
     Mr  Davies submits that the note is central to the appeal
     on  the  facts.  It  is an authentic record  of  Hitler's
     thinking  on  the  Jewish  question  and  so  of  seminal
     importance. At the trial, the applicant referred to it as
     a "high-level diamond document" (13.33).

63.  The  respondents' case, also made by Mr Rampton  at  this
     hearing,  was that the Schlegelberger note made no  sense
     against the background of the events of 1942 which included
     the  mass transportation of Jews from Western and Central
     Europe. The respondents sought to cast doubt upon the date of
     the  document and the circumstances in which it came into
     existence so as to question whether any weight could be given
     to its contents. Even if it did accurately record a statement
     of Hitler's views in March 1942, it was likely to be his view
     not on the Jewish question generally but on the narrower issue
     of mixed marriages between Jews and Gentiles and the children
     of such marriages (Mischlinge) (5.155). That question had been
     discussed at the Wannsee Conference in January 1942 and again
     discussed  at a further conference on 6 March  1942.  The
     allegation against the applicant is that no reputable and
     objective historian would in the circumstances admit only one
     possible interpretation of the note.
     
64.  The judge was prepared to assume that the note was a 1942
document but concluded (13.35) that:
          "it is (to put it no higher) very doubtful
          if  the Schlegelberger note is evidence of
          a  wish  on the part of Hitler to postpone
          the  Jewish question until after the  war,
          that  is,  to  take  no  offensive  action
          against  them of any kind until after  the
          cessation of hostilities. I do not believe
          that   Irving  was  able  to   provide   a
          satisfactory  answer  to  the  Defendants'
          question:  why should Hitler have  decided
          suddenly in March 1942 to call a halt to a
          process  which had been going on with  his
          authority on a massive scale for at  least
          six  months. I am persuaded that, for  the
          reasons advanced by Evans, it is at  least
          equally  likely that the note is concerned
          with the complex problems thrown up by the
          question    how    to   treat    half-Jews
          (Mischlinge)".
          

65.  The  judge  went  on  to state that if  the  respondents'
     explanation of the note is correct "the note does not possess
     the significance which Irving attaches to it".
     
66.  The judge's conclusion was:
          "13.36     I  do not regard the  arguments
          advanced by Irving, which I have  set  out
          at  paragraphs  5.165-7, as being  without
          merit:  they  are worthy of consideration.
          But   I   do   consider  the   Defendants'
          criticism  to be well-founded that  Irving
          presents   the  Schlegelberger   note   as
          decisive   and  incontrovertible  evidence
          (see  Hitler's War at p 464) when,  as  he
          should   have   appreciated,   there   are
          powerful reasons for doubting that it  has
          the  significance which he attaches to it.
          Irving's  perception of the importance  of
          the note appears to take no account of the
          mass  murder of the Jews which took  place
          soon afterwards."
          

67.  That  conclusion was stated in the context of the judge's
     earlier opinion (13.32) that "Irving's treatment  of  the
     Schlegelberger note and the importance which he attaches to it
     shed important light on the quality of his historiography". It
     is  clear  that  the  judge has not  fully  accepted  the
     respondents' attempt to diminish the value of the note. The
     judge regarded the issues surrounding the note as "worthy of
     consideration".   The  criticism   of   the   applicant's
     historiography is based on the applicant having presented the
     note as "decisive and incontrovertible evidence". We have been
     referred, as was the judge, to the applicant's references to
     the note in his books and speeches. In Hitler's War (1991, p
     18) the applicant stated: "Whatever way one looks at this
     document it is incompatible with the notion that Hitler had
     ordered  an urgent liquidation program". In Hitler's  War
     (1991), p 464, Lammers' statement in the note is said to be
     "highly significant". In Goebbels (1996), p 388:
     
          "Hitler wearily told Hans Lammers that  he
          wanted  the solution of the Jewish problem
          postponed until after the war was over - a
          ruling that remarkably few historians  now
          seem disposed to quote".
          

68.  In  a  speech to the Institute for Historical  Review  in
     1983, the applicant referred to the note as "the most cardinal
     piece of proof in this entire story of what Hitler knew about
     what was going on". At Toronto on 13 August 1988 the applicant
     referred to the note as the "most compelling document" that
     Hitler did not know about the extermination of the Jews. He
     added that "there is no clearer proof than that one document".
     
69.  The judge's use of the expression "decisive and
incontrovertible evidence" was a paraphrase of what he
considered to be the applicant's views. As such, it was
somewhat too strong, in our view. The judge was however
correct, in our judgment, both in his view that the
applicant's treatment of the note sheds light on the quality
of the applicant's historiography and in the substance of his
eventual conclusion. A reputable historian would have let his
readers and listeners know of the problems involved in
assessing the value and effect of the Schlegelberger note and
would not have used the language he did. The particular
relevance of the issue is that it bears upon the role in
events of Hitler himself, an important issue between the
parties.
70.  Mr Davies urges us not to judge the applicant as a
"platform speaker". The fact that some of the strong
statements just cited were made in public speeches rather than
in written publications does not, in our judgment, greatly
lessen their significance in present circumstances. Where, as
in some of the instances we have had to consider, the charge
is one of incomplete treatment of a range of evidence, it
would not be right to demand too stringent a standard of
comprehensiveness in formal lectures. Where, however, as with
the Schlegelberger note, the charge is the promotion of
historical claims on the basis of evidence that the applicant
should have known was questionable to the extent that it could
not be used in support of those claims without qualification,
it seems to us that the conduct is equally open to criticism
whether it takes place in a public speech or within the
confines of a work of scholarship. In the speeches to which we
have been referred, the applicant was presenting himself as a
professional historian, entitled to speak as such and entitled
to be given credence as such.
Goebbels diary entry for 27 March 1942

71.  Under  this heading in the judgment, two overlapping  but
     distinct issues arise. The first, and it is the one which the
     judge identified at 5.172, is "the manner in which Irving
     deals with the question of when Hitler was aware of the policy
     of exterminating Jews". The judge's conclusion (13.38) dealt
     with  that  issue  but also a second issue,  whether  the
     applicant's treatment in Hitler's War (both editions)  of
     Goebbels diary entry for 27 March 1942 is misleading. The
     diary entry has to be considered against the "common ground"
     identified by the judge (5.172). As the judge put it (5.171):
     the "Einsatzgruppen set about the systematic killing of Soviet
     Jews [in 1941]. In about the autumn of 1941 the extermination
     policy  was  extended to Jews in the area of the  General
     Government. The gassing of Jews commenced in December 1941 at
     an extermination centre called Chelmno in the Warthegau; the
     latter being an area containing territory incorporated into
     the Reich after the conquest of Poland ."
     
72.  The respondents' case at the trial was that the
applicant's claim that Goebbels deceived Hitler, by concealing
from him the reality of what was happening in the death camps,
was wrong. The judge concluded first (13.37) that the manner
in which the applicant dealt with the diary entry in  Hitler's
War (both editions) was "misleading and unsupported by the
circumstantial evidence" (13.37). Secondly, he did not "accept
that the evidence of the circumstances as they existed in
March 1942 lends support to Irving's claim that Goebbels
concealed from Hitler the reality of what was happening in the
death camps" (13.38).
73.  The diary entry was (5.174):
          "The Jews are now being pushed out of  the
          General Government, beginning near Lublin,
          to  the  East. A pretty barbaric procedure
          is being applied here, and it is not to be
          described in any more detail, and not much
          is left of the Jews themselves. In general
          one may conclude that 60% of them must  be
          liquidated, while only 40% can be  put  to
          work.   The  former  Gauleiter  of  Vienna
          [Globocnik],  who  is  carrying  out  this
          action,  is doing it pretty prudently  and
          with  a  procedure that doesn't  work  too
          conspicuously. The Jews are being punished
          barbarically,  to be sure, but  they  have
          fully  deserved it. The prophesy that  the
          Fuhrer issued to them on the way, for  the
          eventuality that they started a new  world
          war, is beginning to realise itself in the
          most  terrible manner. One must not  allow
          any  sentimentalities  to  rule  in  these
          matters.  If  we did not defend  ourselves
          against  them,  the Jews would  annihilate
          us.  It  is a struggle for life and  death
          between  the  Aryan race  and  the  Jewish
          bacillus. No other government and no other
          regime  could  muster the strength  for  a
          general solution of the question. Here too
          the  Fuhrer is the persistent pioneer  and
          spokesman of a radical solution, which  is
          demanded  by the way things are  and  thus
          appears  to  be  unavoidable.  Thank   God
          during  the  war we have a  whole  lot  of
          possibilities which were barred to  us  in
          peacetime.  We  must  exploit  them.   The
          ghettos  which are becoming  available  in
          the   General  Government  are  now  being
          filled  with the Jews who are being pushed
          out of the Reich, and after a certain time
          the  process is then to renew itself here.
          Jewry has nothing to laugh about .".
          

74.  On this issue, the judge expressed his two conclusions in
     summary form. In our judgment they are both justified. In
     Hitler's War (1991 p 464-5), the applicant wrote:
     
          "Dr   Goebbels,  agitating  from   Berlin,
          clearly  hoped  for  a  more  speedy   and
          ruthless  solution, although he  held  his
          tongue  when meeting his Fuhrer. On  March
          19 he quoted in his diary only this remark
          by  Hitler:  'The  Jews must  get  out  of
          Europe. If needs by, we must resort to the
          most   brutal   methods.'  That   Goebbels
          privately  knew  more is  plain  from  his
          diary   entry   of   the   twenty-seventh.
          'Beginning with Lublin,' he recorded, 'the
          Jews  are  being pushed out eastward  from
          the  Generalgouvernement. A  barbaric  and
          indescribable  method  is  being  employed
          here and there's not much left of the Jews
          themselves. By and large you can  probably
          conclude  that sixty percent of them  have
          to be liquidated, while only forty percent
          can  be put to work.' Dr Goebbels recorded
          further that the Trieste-born SS Brigadier
          Odilo  Globocnik, the former Gauleiter  of
          Vienna, was performing this task carefully
          and  unobtrusively. As fast as the ghettos
          of   the  Generalgouvernement  were  being
          emptied, they were being refilled with the
          Jews,  deported  from the Reich,  and  the
          cycle  started over again. 'The Jews  have
          nothing  to  laugh about  now,'  commented
          Goebbels. But he evidently never discussed
          these realities with Hitler. Thus this two-
          faced  minister dictated, after a  further
          visit to Hitler on April 26, 'I have  once
          again talked over the Jewish question with
          the  Fuhrer. His position on this  problem
          is  merciless. He wants to force the  Jews
          right  out  of  Europe .  At  this  moment
          Himmler is handling the major transfer  of
          Jews  from  the  German  cities  into  the
          eastern ghettos'."
          
     The diary entry is quoted in the context of a passage  in
     which the applicant stated that Goebbels "held his tongue
     when meeting his Fuhrer", that Goebbels " evidently never
     discussed these realities with Hitler" and that  Goebbels
     was  "a two-faced minister". Hitler and Goebbels had met,
     the  judge found, on the day before the diary entry.  (It
     is  agreed  that  the date of 29 March  stated  at  5.174
     should be 26 March.) The failure of the applicant,  in  a
     passage  the theme of which was that Goebbels was keeping
     Hitler  in  ignorance of the realities, to refer  to  the
     second part of the diary entry of 27 March justified  the
     judge's conclusion (13.38) "that the way in which  Irving
     deals with this diary is tendentious and unjustified". In
     the  course of that passage it had been stated that "here
     too the Fuhrer is the persistent pioneer and spokesman of
     a radical solution".

75.  The  judge  also considered (13.38) whether "evidence  of
     the circumstances as they existed in March 1942" lent support
     to the claim that "Goebbels concealed from Hitler the reality
     of  what  was  happening in the death camps".  The  judge
     recognised that the applicant was justified in his claim that
     Goebbels was often mendacious in his diary entries and that
     the entries have to be scrutinised in the light of surrounding
     circumstances. It was in that context that the judge stated
     that he did not consider that "Irving was able to point to
     evidence which controverted the contention of the defendants
     that by March 1942 the 'radical solution' favoured by Hitler
     was extermination and not deportation". Mr Davies submits that
     in that sentence the judge reversed the burden of proof. It
     was  for  the respondents to establish that it could  not
     rationally be suggested that Goebbels concealed the reality
     from Hitler and not for the applicant to establish that Hitler
     did not know. If that statement in the judgment were to be
     taken in isolation, the submission would be correct. The point
     arose  however in the context of whether the  applicant's
     treatment of the diary entry was a fair and rational one. In
     putting the criticised point in the way he did, the judge was,
     in  the applicant's favour, expressing his willingness to
     consider whether what he had found was  "misleading" treatment
     of  the  diary entry might be rendered fair treatment  by
     evidence of surrounding circumstances.
     
76.  The issues of Hitler's knowledge and of treatment of a
diary entry became intertwined in this part of the judgment in
a somewhat complex way. We do however agree with the
conclusion of the judge, already stated, on each of them.
77.  The point is fairly made that historians, especially
those as assiduous in their research as the applicant, are
constrained by space in their citation of source documents. On
an issue as important as Hitler's knowledge of realities of
the Third Reich, however, an historian who claims that Hitler
was kept in ignorance by one of his chief ministers whom he
met regularly, was required to place before his readers a
fuller account of an important and relevant diary entry made a
day after one of the meetings.
Hitler's meeting with Antonescu and Horthy in April 1943

78.  The  judge  regarded this issue as important in assessing
     the applicant's historiography. In 1943 there were in Hungary
     some 750,000 Jews. The Nazis brought pressure on the Hungarian
     government to deport them and the Hungarians were reluctant to
     comply. Meetings between Hitler and Admiral Horthy, leader of
     the Hungarian government took place on 16 and 17 April 1943.
     The Hungarians refused to hand over the Jews and Hungary was
     subsequently invaded and occupied by the Germans.
     
79.  While the judge found that the applicant's account of
Hitler's meeting with Antonescu, military dictator of Romania
on 12/13 April 1943 was misleading we regard the judge's only
relevant finding on this issue to be that the applicant
"materially perverts the evidence of what passed between the
Nazis and Horthy on 17 April" (13.44). There was evidence that
at the meeting on 16 April Hitler sought to persuade Horthy to
agree to the expulsion of the Hungarian Jews but reassured him
that there would be no need to kill them. On 17 April, Hitler
and Ribbentrop expressed themselves more explicitly. The judge
accepted that the minutes taken by officials at both meetings
were reliable. The judge found that, on 17 April, both Hitler
and Ribbentrop "spoke in uncompromising and unequivocal terms
about their genocidal intentions in regard to the Hungarian
Jews". Hitler is recorded as having said (5.204):
          "If  the  Jews [in Poland] didn't want  to
          work,  they  were shot. If  they  couldn't
          work,  they had to perish. They had to  be
          treated  like  tuberculosis bacilli,  from
          which a healthy body can be infected. That
          was not cruel; if one remembered that even
          innocent natural creatures like hares  and
          deer had to be killed so that no harm  was
          caused.  Why should one spare  the  beasts
          who wanted to bring us bolshevism? Nations
          who   did  not  rid  themselves  of   Jews
          perished".
          

80.  That  statement is quoted in Hitler's War but is followed
     by the statement:
     
          "But  they  can  hardly  be  murdered   or
          otherwise eliminated". [Horthy] protested.
          Hitler  reassured him: "There is  no  need
          for that."
          

81.  The  judge stated (13.44) that he was not persuaded "that
     Irving had any satisfactory explanation for this transposition
     from 16 to 17 April of Hitler's comforting remark, made on 16
     April, that there was no need for the murder or elimination of
     the Hungarian Jews".
     
82.  Mr Davies asks the Court to consider afresh whether the
transposition was innocent and whether, taken in isolation,
the transposition can bear upon the applicant's
historiography. The judge concluded (13.44) that in his
judgment "Irving materially perverts the evidence of what
passed between the Nazis and Horthy on 17 April". We see no
reason to doubt that conclusion.  It has a significant bearing
upon the attitude of Hitler to Jewish questions and upon the
applicant's approach to Hitler's involvement.
Deportation and murder of the Roman Jews in October 1943

83.  The issue on this point is a narrow one. The SS Chief  in
     Rome  received an order to transfer 12,000 Roman Jews  to
     Northern Italy where they would be liquidated. The matter was
     referred to Hitler's headquarters and the order came back that
     these Jews were to be taken to a concentration camp in upper
     Italy named Mauthausen to be held there as hostages rather
     than be liquidated as had been ordered by Himmler. In Hitler's
     War  (1977, p 575) the applicant said of this that "again
     Hitler took a marginally 'moderate' line". The judge held
     (13.45) that since the Roman Jews were to be at the mercy of
     the SS, it was "specious for Irving to argue, as he did, that
     Hitler's intervention was for the benefit of the Roman Jews".
     The judge added that it was "a culpable  omission on Irving's
     part not to inform his readers that these Jews were ultimately
     murdered". The Court was told that a statement that they had
     been "liquidated" was included in the 1977 edition but omitted
     in the 1991 edition.
     
84.  In isolation, we do not consider this finding to be of
the greatest significance but it does assist in establishing
the pattern alleged by the respondents of the applicant
portraying Hitler as sympathetic towards the Jews. The word
"moderate" is a curious one in circumstances in which Jews
were to be held by the SS, especially in the context of the
1991 edition in which the reference to the liquidation of the
Jews is omitted.
Himmler's speeches of 6 October 1943 and 5 and 24 May 1944

85.  It  was common ground that in these speeches Himmler  was
     speaking with remarkable frankness about the murder of the
     Jews and that, with effect from October 1943, it had to be
     conceded  that  Hitler cannot have been ignorant  of  the
     extermination programme. In the second speech, referring to
     the Jewish question, Himmler referred to carrying out "the
     soldierly order" and in the third speech to "orders" and to
     his  "sense of duty". The respondents' case was that  the
     speeches provided powerful evidence that Hitler ordered that
     the extermination of the Jews should take place. In Hitler's
     War (1977), the applicant commented on the reference to a
     "Fuhrer Order" in the speech of 5 May and stated that "there
     is reason to doubt that he [Himmler] showed this passage to
     his Fuhrer". The judge described this suggestion as "fanciful"
     and regarded the absence of any mention of the speech  in
     Hitler's War (1991) as "another culpable omission". We agree
     with the judge's conclusions on this issue.
     
Ribbentrop's testimony

86.  In  an  endnote  to  Hitler's War  (1977)  the  applicant
     stated:
     
          "Writing on Hitler in his Nuremberg prison
          cell,   Ribbentrop  also  exonerated   him
          wholly.   'How   things   came   to    the
          destruction of the Jews, I just don't know
          as  to  whether Hitler began it, or Hitler
          put up with it, I don't know. But that  he
          ordered  it  I refuse to believe,  because
          such  an  act would be wholly incompatible
          with the picture I always had of him'."
          
      The  following  words in that record was  omitted.  They
were:

          "On  the other hand, judging from his Last
          Will,  one must suppose that he  at  least
          knew  about  it,  if,  in  his  fanaticism
          against  the  Jews, he didn't  also  order
          [it]".
          

87.  The  applicant argued that the omitted passage cried  out
     to be cut out (5.239). It was mere supposition on Ribbentrop's
     part or, as Mr Davies puts it, "merely speculation".
     
88.  Ribbentrop was of course Foreign Minister in the Third
Reich and his views were important to any assessment of
Hitler's knowledge of events in the Third Reich. The
applicant's submissions are not to the point which is of
misleading selectivity in the context of the account in
Hitler's War. We agree with the judge (13.48) that "there is
an obligation on them [historians] not to give the reader a
distorted impression by selective quotation" and that the
applicant had failed "to observe this duty". The suggestion
that Ribbentrop "wholly exonerated" Hitler is entirely
inconsistent with the record read as a whole.
The Bombing of Dresden

89.  The  respondents contended at the trial that in his  book
     The Destruction of Dresden (1963) the applicant has, amongst
     other things, distorted and twisted historical facts  and
     "misrepresented the facts as they appear from the available
     evidence" (11.5). A revised edition of the book appeared in
     1996. The principal issue is in relation to the number of
     those killed in Allied air raids on 13 and 14 February 1945.
     Since 1963 different figures have been given by the applicant
     in his books and speeches.
     
90.  Mr Davies describes this issue as a "peripheral issue"
and a "side issue". It is common ground that the evidence has
nothing to do with Hitler's policy towards the Jews. We do not
propose to set out the careful and comprehensive summary of
the evidence by the judge or his analysis. The analysis
amounts to a serious criticism of the applicant's
historiography by way of his treatment of documents, his
reliance on estimates by unidentified individuals, his
disregard for apparently credible evidence and in continuing
to make "grossly inflated claims as to the number of
casualties" in a subsequent edition of the book and in
speeches. The judge referred (13.124) to the accumulation of
evidence that the true death doll was within the bracket of 25-
30,000 and that the "estimates of 100,000 and more deaths
which Irving continued to put about in the 1990's lacked any
evidential basis and were such as no responsible historian
would have made" (13.126).
91.  Mr Davies refers to a letter from the applicant published
in the Times on 7 July 1966. It purported to set the record
straight by reference to reports prepared by the East German
authorities. The existence of the letter makes all the more
surprising the subsequent assertions to which the judge
referred. The applicant has failed to cast doubt upon the
judge's conclusion on this part of the case which we regard as
a significant and warranted attack upon the applicant's
historiography.
Holocaust denial

92.  This  issue  has  taken a very subsidiary  place  at  the
     hearing and in our judgment rightly so. It can be dealt with
     briefly.  The expression "Holocaust denial" has  achieved
     currency because of claims that the Holocaust did not occur
     and  books written in reaction to those claims. Professor
     Lipstadt's book is entitled "Denying the Holocaust" and bears
     the sub-title "The Growing Assault on Truth and Memory". The
     first words in the preface to the original edition are: "When
     I first began studying holocaust denial .". In his conclusion
     on meaning the judge by inference defined the Holocaust as the
     "deliberate planned extermination of Jews" "embarked upon" by
     the Nazis.
     
93.  The judge was entitled to hear Professor Evans's view
upon the meaning of the expression. We are not persuaded that
the expression can be given any precise technical meaning or
that "Holocaust denier" defines a class of persons precisely.
Having regard to the views expressed by the applicant about a
range of events in the history of the Third Reich, we agree
with the judge that the applicant may be described as a
Holocaust denier. We acknowledge that he has over the years
modified, and in some respects significantly modified, his
views upon some of the relevant events. However, the
respondents were justified in describing him as "one of the
most dangerous spokespersons for Holocaust denial" having
regard to the views he has expressed and in some respects
persisted in, and the manner and force with which he  has
expressed them. The use of the word "dangerous" was justified
by reason of his historiographical methods considered by the
judge and in this judgment.

Hitler as a friend


94.  Mr  Davies  submits that the judge has misunderstood  the
     applicant's position when attributing to the applicant the
     opinion that "Hitler was a friend of the Jews" (13.11). Mr
     Davies submits that the applicant has never expressed that
     opinion and goes as far as to say that no reputable historian
     could  possibly say such a thing. What the applicant  has
     claimed is that Hitler was the best friend the Jews had in the
     Third Reich and that, submits Mr Davies, was to damn Hitler
     with faint praise. What the applicant was concerned to do was
     to distinguish, in Hitler's favour, Hitler's position from
     that of Himmler and other ministers and agencies of the state.
     
95.  We have not found or been referred to a statement in the
terms recorded by the judge, and proceed on the basis
advocated by Mr Davies. Indeed it was on that basis that the
trial was conducted and the application made. What the
applicant has sought to do in submissions on many of the
events considered by the judge and in this judgment is in
different ways to minimise Hitler's role in events involving
the Jews. What the respondents have sought, successfully, to
do is to attack the applicant's historiography in the way he
has attempted to do it. Any distinction between whether Hitler
was claimed to be "the Jews' friend" or the "best friend the
Jews had in the Third Reich" is not material to the debate on
the specific issues as it has occurred. Any misunderstanding
by the judge on this point does not affect his reasoning or
the conclusions he reached.

Refusal of leave by Sedley LJ


96.  Sedley LJ refused leave on paper on 18 December 2000  for
     the following reasons:
     
          "1.  I much regret the length of time that
          it  has taken me to come to this decision,
          not  least in view of the pressure that  I
          put   on  the  parties  to  submit   their
          representations expeditiously. Reaching  a
          conclusion on the application has been the
          work of days, not of hours.
          
          2.    I am prepared to enlarge time on the
          basis  of  Mr Adams' affidavit of  16  May
          2000,  and  to  permit  amendment  of  the
          notice of appeal as asked.
          
          3.    What follow are my essential reasons
          for refusing permission to appeal. They do
          not   cover  every  element  advanced  and
          contested,  although I have read  and  re-
          read   both   the  submissions   and   the
          judgment. They address what I consider  to
          be the key issues.
          
          4.    I  bear  in  mind, as  Gray  J  very
          clearly  did,  that  when  a  professional
          historian claims, correctly, that  he  has
          been defamed as a falsifier and a bigot, a
          defence  of justification places  a  heavy
          burden  on the defendant who advances  it.
          There  is much about which two people  can
          legitimately  differ, and differ  angrily,
          without  either  of them meriting  such  a
          description. But by bringing  this  action
          on  the  pleaded  meanings  the  applicant
          offered  a  challenge,  and  in  Gray  J's
          judgment the defendants met it.
          
          5.    I accept that this court is probably
          as  well placed as Gray J to evaluate  the
          documents and the expert evidence. What it
          cannot do, and is not asked to do,  is  to
          ignore or modify the judge's appraisal  of
          the applicant himself. This is not, as the
          grounds suggest, peripheral. As Gray J  in
          Chapter  XIII  shows  with  clarity,   the
          applicant's  disposition  is  the   cement
          between  the bricks. What might in another
          historian have been casual misreadings  of
          evidence emerge in the applicant's case as
          sedulous  misinterpretations all going  in
          the    direction   of   his   racial   and
          ideological  leanings. Hence  the  verdict
          for the defendants.
          
          6.     "Holocaust   denial"   may   be   a
          comprehensible  phrase,  but  it   has   a
          particular register about which the  judge
          was entitled to hear expert evidence. With
          or  without  such evidence the meaning  he
          assigned  to  the phrase at  J  8.3-4  was
          plainly right. Holocaust denial means  not
          necessarily a blank refusal to acknowledge
          a  Nazi policy of mass murder of Jews  and
          other    minorities   but   a   systematic
          endeavour,  by marginalising and  excusing
          what  happened, to accuse those who insist
          upon  it  of  being Zionist propagandists.
          This  is not the law's concern so long  as
          it  stops  short of incitement  to  racial
          hatred:  in the UK there is no law against
          Holocaust  denial, and it is a fundamental
          liberty not only to be contentious but  to
          be  wrong.  I bear in mind too that  anti-
          Zionism   and   anti-semitism   are    not
          necessarily the same thing.
          
          7.    Here,  however,  the  applicant  has
          invoked  the law by suing his antagonists.
          In  justifying their libel, the defendants
          have focused upon two particular forms  of
          Holocaust denial in his work: what I  will
          call the aberration theory, predicated  on
          Hitler's ignorance of and/or opposition to
          mass   extermination  of  Jews,  and   the
          exaggeration    theory,   predicated    on
          deliberate inflation of the numbers killed
          at  Auschwitz. The first, they say,  seeks
          to  excuse  what happened; the  second  to
          marginalise it.
          
          8.    The Schlegelberger memorandum is the
          applicant's  preferred  evidence  for  the
          aberration   theory.  The  memorandum   by
          itself (see J 5.151-169) might have  stood
          simply  as  an  example of a controversial
          document  about  which  honest  historians
          could differ - indeed the judge said so (J
          13.36).  But the applicant's adherence  to
          it  as  a "diamond document" came  in  the
          context   of  a  damning  and  justifiable
          finding   (J   13.26-31)   that   he   had
          repeatedly    misrepresented   documentary
          evidence  in  order to absolve  Hitler  of
          anti-semitism;  and  it  is  against   the
          backdrop  of  this ubiquitous handling  of
          Third  Reich material that the applicant's
          use  of the document emerges as part of  a
          predetermined misreading of evidence which
          could   not,  as  the  judge   found,   be
          objectively justified.
          
          9.    The  Auschwitz materials are central
          to  the exaggeration theory. Here too  the
          historical record is inevitably incomplete
          and in places unreliable. But here too the
          applicant  has been betrayed  by  his  own
          method,  notably  his  reliance   on   the
          discredited Leuchter report. The  judgment
          (J  8.17)  sets  out the solidity  of  the
          applicant's  denial of  mass  homicide  at
          Auschwitz,  and sets in that  context  his
          recent  focus on the "holes in  the  roof"
          issue  (J 13.81-3). I accept readily  that
          the  latter argument may be none the worse
          for  coming  late  in  the  day;  but  the
          evidence that there were no holes for  the
          admission  of cyanide pellets is  at  best
          inconclusive  against the potent  evidence
          that  people were gassed there in tens  of
          thousands.  The controversy about  methods
          and  numbers may legitimately remain;  but
          what the applicant has done is demonstrate
          once  again  his willingness to  sacrifice
          objectivity  in  favour of anything  which
          will  support his chosen form of Holocaust
          denial.
          
          10.   Van Pelt's evidence enters into this
          aspect of the judgment. Van Pelt was heard
          as   a  cultural  historian  with  special
          knowledge    of    Auschwitz    and    its
          architecture (J 4.17(ii); G 30).  What  he
          said (J 7.123-4) about the use of Zyklon-B
          was   in  part  arithmetic  and  in   part
          comment; probably it was not necessary  to
          have  an  expert of any kind to  put  this
          forward, but its acceptance by Gray J  was
          a  matter  of logic and did not depend  on
          any expertise professed by Van Pelt.
          
          11.     In    these   circumstances    the
          applicability of s.5 of the Defamation Act
          1952  was in essence a jury question: were
          the  false  allegations that the applicant
          had   agreed  to  share  a  platform  with
          terrorists, had a self-portrait of  Hitler
          above  his  desk  and had  misappropriated
          archive material sufficient to damage  the
          reputation which was not his? The negative
          answer  given by Gray J was entirely  open
          to  him, and that, I apprehend, is enough.
          If,  however, this court were to take  the
          decision  for  itself, I see no  realistic
          prospect  of  its arriving at a  different
          answer.  The claimant had played for  high
          stakes   on  the  central  issue  of   his
          entitlement  to be regarded as  a  genuine
          historian  and  had  lost  on  grounds  so
          damaging  that they left no real room  for
          discrete    damage   by   the    unfounded
          allegations.
          
          12.  The experts' fees may be thought high
          -  depending on how much work they  did  -
          but the suggestion that they were paid  to
          testify  as  they  did is without  visible
          foundation.
          
          13.  If a newspaper comments impermissibly
          on  a  current trial the Attorney  General
          has  power  to bring contempt  proceedings
          against  it.  But where the  trial  is  by
          judge  alone  it takes cogent evidence  to
          establish  a sufficient risk that  he  has
          been  influenced  -  especially  when  the
          suggestion is that he has been driven by a
          fear  of adverse press comment. I know  of
          nothing  in  the present case which  comes
          near this threshold.
          
          14.   (Deals  with stay on enforcement  of
          the costs order.)"
          
     
     We   agree   with  those  reasons  save   only   in   our
     acknowledgement  that the judge was  in  our  view  in  a
     better position to evaluate the oral expert evidence.  On
     some  issues, for example experts' fees (paragraph 12  of
     Sedley LJ), we have not found it necessary to revisit the
     question.
     

Conclusion
     

97.  We  have expressed our views on the issues raised  by  Mr
     Davies. Limitations of time inevitably are such that Mr Davies
     did not address us on  every single piece of evidence on which
     the judge relied. In rightly being selective, Mr Davies has no
     doubt taken the points which he and the applicant consider to
     be the best ones. He has not persuaded us that it is arguable
     that the judge's general conclusions were unjustified. Where
     we have been invited to consider evidence in detail, it does
     not in our judgment diminish the soundness of the judge's
     conclusions. The judge expressed his conclusion at 13.165:
     
          "My  overall  finding in relation  to  the
          plea   of   justification  is   that   the
          Defendants  have  proved  the  substantial
          truth  of  the imputations, most of  which
          relate   to   Irving's   conduct   as   an
          historian,  with  which I  have  dealt  in
          paragraphs  13.7  to  13.127   above.   My
          finding  is  that the defamatory  meanings
          set  out  in paragraph 2.15 above at  (i),
          (ii), (iii) and the first part of (iv) are
          substantially justified."
          
     We agree.



Section 5 of the 1952 Act

98.  The  judge acknowledged (13.166) that "there are  certain
     defamatory imputations which I have found to be defamatory of
     Irving  but which have not been proved to be true".  With
     respect to those, the respondents seek to rely on section 5 of
     the 1952 Act. That provides:
     
          "In  an  action  for libel or  slander  in
          respect  of words containing two  or  more
          distinct charges against the plaintiff,  a
          defence of justification shall not fail by
          reason only that the truth of every charge
          is  not proved if the words not proved  be
          true   do   not  materially   injure   the
          plaintiff's  reputation having  regard  to
          the truth of the remaining charges".
          

99.  With  respect  to one charge, Mr Davies strongly  submits
     that the respondents are not entitled to rely on that defence.
     It  is the unproved allegation that "on one occasion [the
     applicant] agreed to participate in a conference at which
     representatives of terrorist organisations were due to speak".
     The conference was (13.166) "an anti-Zionist conference in
     Sweden  in 1992 which was also to be attended by  various
     representatives of terrorist organisations such as Hezbollah
     and Hamas". Mr Davies submits that not only is this a very
     grave allegation but it is of quite a different category from
     the charges against the applicant's historiography which have
     been the main issue in the case. Whatever the conclusion upon
     the  applicant's historiography, Mr Davies  submits,  the
     applicant's reputation is materially injured by the allegation
     that he agreed to speak at a conference attended by terrorist
     organisations.
     
100. The judge concluded:
          "The  charges  which I have  found  to  be
          substantially  true  include  the  charges
          that  Irving  has for his own  ideological
          reasons   persistently  and   deliberately
          misrepresented and manipulated  historical
          evidence; that for the same reasons he has
          portrayed   Hitler  in  an   unwarrantedly
          favourable light, principally in  relation
          to his attitude towards and responsibility
          for the treatment of the Jews; that he  is
          an  active  Holocaust denier; that  he  is
          anti-semitic  and  racist  and   that   he
          associated with right wing extremists  who
          promote  neo-Nazism. In  my  judgment  the
          charges  against  Irving which  have  been
          proved   to  be  true  are  of  sufficient
          gravity  for  it  to  be  clear  that  the
          failure  to prove the truth of the matters
          set out in paragraph 13.165 above does not
          have   any  material  effect  on  Irving's
          reputation."
          

101. We  agree  with  the  judge.  While  the  attack  on  the
     applicant's historiography was central and fundamental to the
     case, it was proved in the context described by the judge
     which involved anti-semitism and racism and association with
     right-wing extremists. In that context, the allegation that on
     one occasion he agreed to participate in a conference at which
     representatives of terrorist organisations were due to speak
     did not materially injure his reputation having regard to the
     truth of the charges proved.
     
Result

102. The  judge was fully entitled to hold (13.168)  that  the
     defence of justification succeeded. In our judgment, and for
     the reasons we have given, it is not arguable that an appeal
     against the judge's verdict would succeed. The application for
     permission to appeal is refused.
     






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