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Subject: Irving v. Penguin & Lipstadt: Judgment XII-01
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-12.01
Last-Modified: 2000/04/11

XII. JUSTIFICATION: IRVING'S CONDUCT IN RELATION TO THE GOEBBELS
DIARIES IN THE MOSCOW ARCHIVE

Introduction

12.1 In 1992 Irving was told by Elke Frohlich, the widow of Professor
Broszat, who edited fragments of the diaries of Goebbels, of the
existence in Moscow of the long lost diaries themselves. They were, she
said, in the form of microfiches recorded on hundreds of glass plates.
She suggested to Irving that he might be able to buy the plates, since
they were not listed on the archive inventories. She advised Irving to
raise the necessary money She gave him the name of the director of the
archive. Irving approached him at the end of May 1992.

12.2 On 26 May 1992 Irving contacted the Sunday Times, whose editor at
that time was Andrew Neil, with a view to making an agreement about the
diaries. Neil expressed serious misgivings about their authenticity. (He
had good reason for his caution, since the Sunday Times had recently had
the misfortune to publish Hitler's diaries which turned out to be
forgeries). Neil, however, agreed to provide the finance needed for a
preliminary visit to Moscow by Irving. He travelled there on 6 June
1992. He was introduced by a Sunday Times journalist based in Moscow,
Peter Millar, to Vladimir Taraso, the Head of the Department of
International Contacts at Rosarchiv. Irving, having inspected the
diaries, was satisfied of their genuineness. On his return to London,
Irving entered into an agreement with the Sunday Times whereby the
newspaper would pay him 75,000 in return for his translation of parts
of the diaries. Irving returned to Moscow on 28 June 1992 and remained
there working on the diaries until 4 July. The diaries were stored on
1,600 glass plates, each glass plate holding about 45 pages of diary.

12.3 In Denying the Holocaust, Lipstadt wrote in a footnote:

     "The Russian archives granted Irving permission to copy two
     microfiche plates, each of which held about forty-five pages of the
     diaries. Irving immediately violated his agreement, took many
     plates, transported them abroad, and had them copied without
     archival permission. There is serious concern in archival circles
     that he may have significantly damaged the plates  when he did so,
     rendering them of limited use to subsequent researchers".

Irving complains that in that passage Lipstadt accused him of violating
an agreement with the Russian archives in that he took and copied many
plates without permission causing significant damage them and rendering
them of limited use to subsequent researchers. Readers would infer that
he is a person unfit to be allowed access to archival collections.

The claim that Irving broke an agreement with the Moscow archive and
risked damage to the glass plates

The allegation as formulated in the Defendants' statements of case

12.4 In their original statement of case the Defendants alleged no more
than that there were grounds to suspect that Irving had removed certain
microfiches of Goebbels' diaries from the Moscow archive without
permission. Subsequently, in their Summary of Case, the Defendants
revised their case to allege that Irving broke an agreement he had made
with the Moscow archive by (without permission) removing from the
archive glass plates on which the diaries were recorded; having copies
made of those plates and transporting two plates to London, where they
were subjected to forensic tests. The Defendants allege that Irving's
conduct gave rise to a significant risk that the plates might have been
damaged, rendering them of limited use to subsequent researchers. They
maintain that Irving's conduct was unbecoming of a reputable historian.

12.5 In the outline of their Statement of Case the Defendants alleged
that, in the course of his first visit to Moscow on the 10 and/or 11
June, Irving, acting without permission and without the knowledge of
Tarasov (or any other Rosarchiv official) took three glass microfiche
plates, including what he considered to be two of the most important
plates, and gave them to Peter Millar so that they could be passed to
the Sunday Times Moscow photographer to make enlarged prints. The
Defendants allege that Irving had prints made and then had the plates
forensically tested in London. The tests were completed by 2 July 1992,
at which time the plates were returned to Moscow by another journalist.
The tests which had been carried out in England risked damaging the
fragile plates, according to the Defendants.

12.6 The Defendants alleged further that on 19 June 1992 Irving had
requested permission from Tarasov to take plates out of the archive for
a short period in order to carry out tests. Tarasov gave permission for
two plates to be taken out of the archive. According to the Defendants'
case, he was unaware that any plates had been removed earlier. When he
returned to the Moscow archive in late June, Irving took more glass
plates and gave them to the Sunday Times photographer to make prints.

12.7 The gravamen of the case stated by the Defendants is that Irving
abused the trust placed in him by Tarasov and violated his agreement
with him. They allege also that, by covertly removing the glass plates
and handing them over to a journalist for testing to be carried out
abroad, Irving was guilty of a further serious breach of trust which
gave rise to a significant risk that the plates might suffer damage.

The evidence relied on by the Defendants for the allegation of breach of
an agreement

12.8 Although the Defendants had served written statements accompanied
by notices under the Civil Evidence Act, in the result they called no
evidence on this part of their plea of justification. They relied on the
evidence given by and on behalf of Irving to establish their case.

12.9 In relation to the first issue, namely whether Irving violated an
agreement with the Moscow archive, the Defendants' case, elicited from
Irving and Millar in cross-examination, can be summarised as follows:
Irving was keen to gain access to the diaries because (apart from the
money and the kudos) he wanted the material for his biography of
Goebbels. It is clear from his diary that on his first visit to Moscow
Tarasov, on behalf of the archive, gave him access to the material, to
read it and perhaps to copy some pages.

12.10 Irving's diary entry for the following day, 10 June 1992, records
that he "illicitly borrowed the fiche we had found covering the weeks
before the war broke out and took it out of the archives at lunch for
copying. Irving recorded that he tucked the envelope with the glass
plats into a hiding place before re-entering the archive. At the end of
the afternoon, Irving took them to the Sunday Times photographer, who
printed copies to be shown to Neil in London. The plates were returned
to the archive the following morning. The defendants allege that this
amounted to a breach of the agreement Irving had made with Tarasov.

12.11 On 11 June 1992, again according to Irving's diary, he removed by
the same means two further plates from the archive. These plates were
taken by Irving to Munich here they wer left in a safe (whilst Irving
travelled to Rome). On his return he took them to London, where they
were tested at Pilkington's laboratories. They were taken back to Moscow
by a Sunday Times journalist on 2 July 1992 and replaced in the archive
on the following day. This, according to the Defendants, constituted a
further breach of agreement. Irving conceded that an historian would
normally require the agreement of an archive before removing material.
Irving had no such agreement. The most that Tarasov had originally
agreed was that Irving could read the plates and perhaps copy them. On
the second visit Tarasov agreed that Irving might remove two plates but
that was in order to copy them. Millar, the Sunday Times journalist who
accompanied Irving, acknowledged in evidence that Irving knew that he
should not be taking the plates out of the archive and expressed his
disapproval to Irving because doing so might jeopardise the chances of
continuing access to the plates. Irving agreed that had not obtained
permission to take the plates back to England.

The evidence relied on by the Defendants for the risk of damage to the
plates

12.12 The risk of damage arose, according to the Defendants, in three
ways. Firstly, when during Irving's first visit the plates were removed
from the archive, there was risk to the plates when they were left in a
hiding place. According to the evidence, the plates were left on waste
ground for the whole afternoon. There was a risk of someone taking them
or of damage if it rained.

12.13 The plates were exposed to further risk by reason of their being
handled and, on the second, visit by their being taken via Munich to
London and back. Even allowing that Irving took great care of them the
plates were at one time or another in the hands of three Sunday Times
employees.

12.14 The third way in which the plates were put at significant risk
arose out of the testing of the plates in London. A small fragment was
cut off one plate. Irving was not on hand when the testing was carried
out and so was not in a position to ensure that the plates came to no
harm.

Irving's case that there was no breach of agreement

12.15 According to Irving, the glass plates on which the diaries were
recorded has been neglected by the Russians. They were in bad condition.
Material from the archive was being sold by the Russians. Irving's major
concern was to gain access to the diaries before the Germans. If the
Germans were to gain access first, Irving was concerned that the diaries
would vanish for a considerable period.

12.16 Irving stressed (and Millar) confirmed that there was no agreement
with the Russians. On 9 June 1992 Millar spoke to Tarasov, who
telephoned the curator of the archive, Bondarev and told him to permit
Irving to have access to the plates and to work on them. The arrangement
was a verbal one. Millar testified that there was no restriction on
access.

12.17 On the first occasion when plates were removed from the archive,
Irving agreed that he did not seek permission to do so. He did not tell
the Russians what he was intending to do. His concern was to copy the
plates before the archive was "sealed", that is, before he lost access
to the plates by reason of some action by his German competitors. Irving
gave evidence that he had felt that the situation required desperate
remedies. He agreed in cross-examination that he acted "illicitly" and
felt ashamed about his conduct. Millar disapproved of what he was doing
because he (Millar) feared that future access to the diaries might be
jeopardised. But there were no means of copying the diaries in the
archive. Irving acknowledged that it could have been understood that the
plates should not be taken out of the archive. But he felt he was
providing a valuable service in making sure that the contents of the
diaries would be available to historians. He disagreed that there was
any breach of agreement on his part. It was "neither here nor there" to
the archivist if he removed the plates.

12.18 On the second occasion when he removed plates from the archive,
Irving did so in order to have the plates tested, as his contract with
the Sunday Times required him to do. On this occasion he did seek and
obtain permission from the Russians to remove the plates. But he did not
tell them of his intention to take them out of the country for testing.
Again Irving accepted in cross-examination that he had acted
"illicitly". But he said that he assumed he had permission to "borrow"
the plates. Irving denied any breach of agreement.

Irving's denial that the plates were put at risk of damage

12.19 In relation to the first occasion on which he removed plates from
the archive, Irving testified that he took them out of the archive at
lunchtime. He said that the plates were carefully packaged in plastic
and cardboard. He hid them during the afternoon on waste ground about
100 yards from the Institute. Apart from that, there was no risk of
damage to the plates. The plates were returned the next morning, after
they had been copied.

12.20 On the second occasion when plates were removed, Irving denied
that at any stage there was any risk of damage to them. At all times
when the plates were en route they were safely packed. He took them to
Munich, where he left them in a safe whilst he travelled to Rome and
back. Irving claimed that they were safer there than they had been in
the archive. He then took them to England. The testing did not involve
any risk of damage. The plates were returned to the archive after three
weeks.

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