Archive/File: people/i/irving.david/libel.suit/transcripts/day032.01 Last-Modified: 2000/07/25 IN THE HIGH COURT OF JUSTICE 1996 I. No. 113 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London Wednesday, 15th March 2000 Before: MR JUSTICE GRAY B E T W E E N: DAVID JOHN CAWDELL IRVING Claimant -and- (1) PENGUIN BOOKS LIMITED (2) DEBORAH E. LIPSTADT Defendants The Claimant appeared in person MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and Second Defendants MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of the Second Defendant Deborah Lipstadt (Transcribed from the stenographic notes of Harry Counsell & Company, Clifford's Inn, Fetter Lane, London EC4 Telephone: 020-7242-9346) (This transcript is not to be reproduced without the written permission of Harry Counsell & Company) PROCEEDINGS - DAY THIRTY-TWO . P-1 (Day 32; 10.30 a.m.) MR JUSTICE GRAY: Mr Irving, before you say what you want to say and before Mr Rampton starts, can I just say this. I certainly do not intend to have a sort of inquest about why yesterday was abortive. I was a bit surprised, as you may have gathered. I have looked at the transcript of day 30 and I can see how the misunderstanding arose. I think it was then contemplated we would have two days of closing submissions and it has not worked out like that. The reason I mention it is simply this. Having looked again at both sets of written closing submissions -- for which I am very grateful, a lot of work has gone into them obviously -- there are one or two points that I think I ought to put really to both sides. I will do that whenever it is convenient to you both. I will either do it before or during or after, whichever you find convenient -- probably after, I suspect. MR RAMPTON: After, I would suggest. MR JUSTICE GRAY: After your public statement, but I do not want to do it. That is what I am really telling you. MR RAMPTON: I would also suggest, perhaps, because they are not things in which the majority of people in this room are going to be closely interested, we could also deal with these five points after. . P-2 MR JUSTICE GRAY: Which five? MR RAMPTON: Mr Irving's five points. MR JUSTICE GRAY: The Muller document standard of proof, section 5 etc. MR RAMPTON: They are partly matters of law and partly matters of detail. MR JUSTICE GRAY: Subject to Mr Irving, I entirely agree about that. Mr Irving, these are the nitty-gritty, are they not? MR IRVING: I did not want to be wrong-footed by leaving them out. I want to draw your Lordship's attention to the fact that there are these final loose ends that need to be tied up. MR JUSTICE GRAY: I certainly agree. We ought to spend a few minutes on the Muller document. MR IRVING: Except for the one point, my Lord, point 4 on that list. Having reconsidered the matter, I do consider I am entitled to make slightly broader use of the material which was in the bundle E matters on the basis that I have set out there, that they might go to aggravated damages and they certainly go to explaining my state of mind when I am alleged to have made certain remarks about the bodies or persons concerned. MR JUSTICE GRAY: What I will do -- I know the Defendants are not very happy about this but I think I am going to do it anyway unless Mr Rampton wants to try and dissuade me -- . P-3 is to let you make your closing submissions along the lines of the written document. I am bound to say that I think a lot of it goes beyond what the evidence establishes, and also goes beyond what you are really entitled in any event to rely on by way of aggravated damages against the Defendants because, of course, you have to prove the Defendants' involvement in the conspiracy. But I am going to let you do it, unless Mr Rampton continue tries to dissuade me. MR RAMPTON: No, I have no objection. MR JUSTICE GRAY: I think it is the right thing to do in this particular case. MR RAMPTON: I agree. Miss Rogers has dealt with it very succinctly and, in my submission, very effectively on paper. It is in your Lordship's hands at the end of all this. If this were a Jury case, it would be entirely different, but it is not. We are confident that we can leave it happily to your Lordship. I would also add this. It does seem to me, and I will say this, that the more of that kind of speculative fantasy Mr Irving spins in a public court in this country, the more harm he does his own cause. I only say that at this stage. MR JUSTICE GRAY: That is as may be. MR IRVING: Be that as may be, my Lord, of course, I would be perfectly entitled in my closing speech to put to the court the matters that I would have put to the Defendants . P-4 had they had the courage to go into the witness box. That is the kind of material that I would have put to them. MR JUSTICE GRAY: Well, I am not sure that is actually right, as a matter of law, but I am taking a liberal approach. Say what you have indicated you intend to say in due course. MR IRVING: I will certainly tighten it up. I shall not go to such lengths. MR RAMPTON: My Lord, I will then read, if I may, what your Lordship has in writing. I start by observing that your Lordship will notice, as I read it, that there are one or two stylistic changes that I have made overnight. They are merely stylistic. They do not touch the substance of what I have to say. MR JUSTICE GRAY: I will keep my mouth shut and I will not interrupt you, but there are the points that I want to raise with you at the end of your statement. MR RAMPTON: If your Lordship would rather do it now? MR JUSTICE GRAY: No, it is better at the end. MR RAMPTON: My Lord, I start with this, that if one had read some of the media reports of this trial, which I realize that your Lordship probably has not, one might have supposed that Mr Irving had been dragged into this court to defend his freedom of expression as an historian. In fact, of course, that is not so. The history of the matter is quite the reverse. Professor Deborah . P-5 Lipstadt, an America academic, wrote a book called "Denying the Holocaust", which was first published in the United States in 1993. It was then republished by Penguin Books in this country in 1994. The book contained trenchant criticisms of Mr Irving's historiographical methods and his political views and associations. Mr Irving then issued legal proceedings claiming aggravated damages for libel and an injunction against Professor Lipstadt and Penguin. This trial has taken place only because they decided to defend their right to publish the truth. The principal accusations made against Mr Irving by Professor Lipstadt in her book were, in summary: first, that Mr Irving deliberately falsified history in order to make it conform with his ideological leanings and political agenda, and, in particular, in order to exonerate Adolf Hitler of responsibility for the Nazi persecution of the Jews. Second, that in order to achieve his objective, Mr Irving distorted historical evidence and manipulated historical documents. Third, that Mr Irving had become one of the most dangerous spokespersons for Holocaust denial. Last, that he himself held extremist views and allied himself, with other right-wing extremists, in particular Holocaust deniers and anti-Semites. . P-6 My Lord, those were undoubtedly serious charges and, had they been untrue, Mr Irving would clearly have been entitled to a large sum of money and an order of the court preventing the Defendants from repeating their accusations. But, as it turns out on the evidence before this court, the accusations are true, in every significant respect. Mr Irving had in the past claimed that there was a chain or series of documents which showed that Hitler was innocent of the persecution of the Jews, and in particular their mass-murder during the War; indeed, that he was, in fact, "the best friend the Jews ever had in the Third Reich. The Defendants decided to put that claim to the test. They asked a professional historian, Professor Richard Evans of Cambridge University, to investigate it. His findings were astonishing. Upon examination, virtually every single one of the links in Mr Irving's chain crumbled in his hands, revealing a falsification of history on massive scale. Equally revealing was the discovery that each of Mr Irving's falsifications led to the same end: the exculpation of Hitler. In addition, in order to test Mr Irving's historiography by reference to his work on a topic other than Hitler -- in a sense, a control sample -- Professor . P-7 Evans examined a number of successive editions of one of Mr Irving's most successful works, his book on the Allied bombing of Dresden in February 1945. Here again Professor Evans found deliberate falsification on a grand scale, all of it tending to the same result: a gross inflation of the numbers of German civilians killed in those raids. The long written submission of the Defendants which is before your Lordship contains a detailed account of Professor Evans' findings and the evidence which supports them. By the Defendants' estimate, there are, in relation to Hitler alone, as many as 25 major falsifications of history, as well as numerous subsidiary inventions, suppressions, manipulations and mistranslations employed to support the major falsifications. If those relating to Auschwitz, Dresden and other matters are added in, the number goes well over thirty. My Lord, in order to illustrate the extraordinary nature and extent of these falsifications, I will give but two examples. On the evening of 9th November 1938, and through the night until the following morning, there was an orgy of violence and destruction against Jews and Jewish property throughout Germany. This was Reichskristallnacht. It had been prompted by the assassination in . P-8 Paris of a German diplomat by a young Polish Jew. The Nazi leadership in Berlin exploited it to the full. It was orchestrated by the SA and the SS, and the police were ordered, by Hitler, not to intervene. Mr Irving has described this pogrom in various places, but most particularly in his book "Goebbels: Mastermind of Third Reich", which was published in 1996, where he devotes a whole chapter to it. In summary, his account of it is that the whole thing was initiated and orchestrated by Goebbels, without Hitler's knowledge or participation; and that when, in the early hours of 10th November 1938, Hitler found out what Goebbels had done, he was "livid with rage" and took immediate steps to put a stop to it. This account purports to be based partly on the postwar testimony of former Nazis, but principally on the contemporary documents. On examination of those documents, Mr Irving's account turns out to be completely bogus. His use of two of those documents will suffice to illustrate the point. On page 276 of his Goebbels book, Mr Irving writes this: "What of Himmler and Hitler? Both were totally unaware of what Goebbels had done until the synagogue next to Munich's Four Seasons Hotel was set on fire around 1 am. Heydrich, Himmler's national chief of police, was relaxing down in the hotel bar; he hurried up to Himmler's . P-9 room, then telexed instructions to all police authorities to restore law and order,; protect Jews, and Jewish property, and halt any ongoing incidents. I emphasise the last part of that sentence, to restore law and order, protect Jews, and Jewish property, and halt any ongoing incidents. The reference given by Mr Irving in his book as his source for this is a telex sent by Heydrich at 1.20 am on 10th November 1938. In fact, so far from ordering "all police authorities to restore law and order, protect Jews and Jewish property, and halt any ongoing incidents", it read as follows: "(a) Only such measures may be taken as do not involve any endangering of German life or property (e.g. synagogue fires only if there is no danger of the fire spreading to the surrounding buildings). (b) The shops and dwellings of Jews may only be destroyed, not looted. The police are instructed to supervise the implementation of this order and to arrest looters. (c) Care is to be taken that non-Jewish shops in shopping streets are unconditionally secured against damage. (d) Foreign nationals may not be assaulted even if they are Jews." That was what Heydrich stayed at 1.20 a.m. on . P-10 10th November 1938. Then, on page 277 of his book, after a colourful account of Hitler's supposedly furious intervention, Mr Irving writes this: "At 2.56 am Rudolf Hess's staff also began cabling, telephoning, and radioing instructions to gauleiters and police authorities around the nation to halt the madness", and I emphasise those words. The source given by Mr Irving for this is a report made by the Nazi Party Court about the pogrom in February 1939. It records this order from Hess's office, made on Hitler's authority. This shows that, in truth, all that the order forbade was the continuing of arson attacks on Jewish shops. Synagogues, houses, apartments, cemeteries, and, in particular, Jewish people were left to the mercy of the continuing violence. As your Lordship knows, there was an aftermath of Reichskristallnacht. Mr Irving describes one aspect on page 281 of Goebbels in these terms: "Hess ... ordered the Gestapo and the party courts to delve into the origins of the night of violence and turn the culprits over to the public prosecutors". Thus Mr Irving gives the impression that those who had perpetrated the violence were to be brought to justice and properly punished. Nothing could be further from the truth. As the contemporary documents, and in particular the Party Court . P-11 report of February 1939, which Mr Irving himself used as a principal source for his account of Reichskristallnacht, reveal: First, the Ministry of Justice ruled, on 10th November 1938, that those who had "merely" caused damage to Jewish shops, synagogues and the like should not be prosecuted at all. Second, other more serious offences, such as looting, rape, assault, murder and the destruction of Jewish homes for selfish motives were to be referred to the Party Court, which would first decide whether any of the offenders should be referred to the ordinary criminal courts or acquitted by order of the Fuhrer.
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