Shofar FTP Archive File: people/i/irving.david/libel.suit/irving-appeal-judgment
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 Ol‰re's drawings which
showed, for example, the impossible event of flames 90 ft long
emerging from a chimney. They could not be treated as
corroborating Tauber's account. The subsequent statements of
H”ss, 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, Ol‰re, H”ss 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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