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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day018.09

Archive/File: people/i/irving.david/libel.suit/transcripts/day018.09
Last-Modified: 2000/07/24

   MR IRVING:  If you will turn to page 12, my Lord, the relevance
        becomes plain.  Did Hitler really exist, and there is a
        certain gentleman putting on Swastika eye glasses there.
        Do you have that?
   A.   Yes.
   Q.   Do you see anybody in the courtroom who is like or
        resembles the person who is putting on the Swastika eye glasses?
   A.   It is not a very good likeness, I have to say.
   Q.   Is he labelled as David Irving?
   A.   Yes, he is labelled as David Irving.
   Q.   Is he saying, "This myth of the mass murder of Jews in the
        death factories of Auschwitz which in fact never took place"?
   A.   Yes, he is.
   Q.   And does it half way down the page say: "British historian
        David Irving who describes himself as a mild fascist"?
   A.   Yes.
   MR JUSTICE GRAY:  Mr Irving, I am still puzzled as to what the
        relevance of this is.  I can see that you object to it.

.          P-73

        What do you say it goes to?
   MR IRVING:  The first Defendants in this case have a record of
        publishing books attacking me, my Lord.
   MR JUSTICE GRAY:  If I may put it this way, so what?  The way
        in which you can rely on it, can I try to help you, is
        that you can say that you are particularly distressed at
        the libel of which you are complaining in this action by
        the fact that Penguin Books keep having a go at you, and
        ridiculing you by that sort of portrayal, but that is a
        matter for your evidence.  That is not a matter for
        cross-examination of Professor Evans.
   MR IRVING:  My Lord, how else can I put this kind of document
        before the court?
   MR JUSTICE GRAY:  You could have done it, I am not being
        critical of you, and you can certainly do it as far as
        I am concerned later on if you want to, you can simply
        say, "And here is a book which I read and it caused me
        additional distress because this is a publishing house
        that seems to have it in for me".
   MR RAMPTON:  I also think, if I may say so, that we need to be
        notified.  I am not saying there is any objection to this
        now but, normally speaking, if one tenders evidence to the
        court in modern times in support of one's case, one is
        obliged to tell the other side first.
   MR JUSTICE GRAY:  That is a fair point as well.  Shall we leave
        it then so far as Professor Evans is concerned and, if you

.          P-74

        want to give evidence about it later on then you can and
        Mr Rampton has now been forewarned, and he can
   MR IRVING:  This precise book is referred to in my claim and
        also in my reply to their defence, and it has been in my
   MR JUSTICE GRAY:  I did not know that.
   MR RAMPTON:  I did not either.
   MR JUSTICE GRAY:  Yes, but I really do not think Professor
        Evans -- I am sympathetic, Mr Irving, and I am perhaps
        bending the rules in your favour a little bit, to letting
        you put some of the points made against you in some of the
        experts' reports when those experts are not going to be
        called to give evidence, but there is not unlimited
        latitude and I think this goes over the boundary, if I may
        say so.
   MR IRVING:  But, with respect, my Lord, I fail to see how I
        could put it in otherwise because I cannot do it in my
        closing speech, obviously.
   MR JUSTICE GRAY:  Well, you can, I have just told you, you can
        give evidence about it.  This is not something that is
        relevant in cross-examination at all.  I am trying to
        explain to you.  It is something that you can adduce in
        your own evidence as being evidence going to the issue of
        damage.  That is the way to deal with it, not in
        cross-examining any witness, and certainly not Professor

.          P-75

   MR IRVING:  When you were engaged to write this expert report,
        were you shown at any time any law report that had been
        produced by Penguin books in this country, any libel
        reading report on the book, on the book that is complained
   A.   No.
   Q.   When your books are published in the United Kingdom, your
        own books, are they subjected to a legal reading to see if
        they libel anyone?
   A.   Not that I have ever been aware of.
   Q.   So, to your knowledge, therefore, as far as you know,
        there was no report prepared by any firm of lawyers,
        reputable lawyers, on the book before it was published?
   A.   All I can say is that I did not see any such report.
        I cannot answer as to whether there was one or not.
   Q.   I am not going to be allowed to ask him questions about
        intermarriage then, am I?
   MR JUSTICE GRAY:  Sorry, I am not quite sure I understand what
        the intended question is.
   MR IRVING:  Well, following through the question of whether
        Jews would be expected to live by a different set of rules
        than those that they criticise?  If I am criticised here
        for the racist ditty once again, as I have been, am
        I entitled in some way to introduce evidence about what
        the Second Defendant has written herself on precisely this

.          P-76

   MR JUSTICE GRAY:  About intermarriage?
   MR IRVING:  About intermarriage, and if so, can I do it now?
   MR JUSTICE GRAY:  It is quite difficult to answer that question
        without knowing what it is you are going to produce.  Have
        you got a copy of it because, perhaps if you would be good
        enough to hand it in and then I can perhaps look at it
        over the adjournment and you can come back to it?
   MR IRVING:  There were several articles which the Second
        Defendant has written in this respect.  I will yellow
        highlight the only part that your Lordship should read.
   MR JUSTICE GRAY:  Yes, but do you mind coming back to it later
        when I have had a chance to look at it?
   MR IRVING:  Yes.  I would like to put to you Professor Levin's
        report now which is at page 125.
   A.   Sorry.  Mine only has 123 pages.
   Q.   Levin or Eatwell?
   A.   Levin.
   MR JUSTICE GRAY:  So does mine.
   MR IRVING:  Oh, dear!  This is covering the diary entries for
        1995.  It is paragraph 11.
   A.   OK.  I think I can find it.
   Q.   I am just going to take one sample paragraph?
   MR JUSTICE GRAY:  It is around 108, I think.
   A.   Yes paragraph 11.
   MR IRVING:  Beginning with "Irving was also".

.          P-77

   A.   Ah, no.
   Q.   Covering the diary entries for 1995.
   A.   No, I am afraid I cannot find it.
   MR JUSTICE GRAY:  No, I cannot.
   MR RAMPTON:  We are looking for it in our bundle.
   MR IRVING:  This question goes purely to the accuracy of
        Professor Levin's style of extracting the diaries.
   A.   Ah, right.
   MR RAMPTON:  There is a paragraph 11 on page 107, my Lord.
   MR IRVING:  Beginning "Irving was also"?
   MR JUSTICE GRAY:  No, I do not think it does.
   MR RAMPTON:  No, it is not that.
   A.   Yes, I have it here.  It is at page 102, paragraph 11:
         "Irving was also forced to confront various incidents",
        is that it?
   MR IRVING:  Yes.
   A.   The Key West landlady evicted him from her hotel, etc., etc.
   Q.   Yes.  Would you carry on down to the next item, please?
         "Irving's April 13th diary entry recounts his displeasure
        at having his name mentioned 'in the most disparaging
        terms in half a dozen places' along with supposed errors
        in an official Canadian government report."
   A.   Yes.
   Q.   Are you familiar with that so-called official Canadian
        government report?

.          P-78

   A.   No.
   Q.   I am going to ask that bundle E should be put to you.
        There is a bundle called "Global".  Do we have a copy?
   MR JUSTICE GRAY:  Yes, I know the one.
   MR IRVING:  Let us see if we can find.  It is page 116 of that
   MR JUSTICE GRAY:  In E, has the witness got E?
   MR IRVING:  It is a very long document beginning at page 116,
        headed with the words:  "Confidential.  David Irving,
        biographical information".  You see at page 116?  I am
        just taking this paragraph as one sample in advance, a
        foretaste, of the problems with the Levin report.  So that
        is a document, a pretty lengthy document, headed with the
        words "Confidential.  David Irving, biographical
   A.   Yes.
   Q.   And that document, as we know from an affidavit by
        Mr Michael Wein of the Board of Deputies in this country,
        which his Lordship probably finds quicker than I do, was
        put, in fact, it was furnished to the Canadian government
        by this British body, would you accept that?  It was
        furnished to the Simon Wiesenthal Centre in Canada when
        they requested dirt on me to prevent me entering Canada?
   MR JUSTICE GRAY:  Assume it.
   A.   I will assume it.  I mean, I do find it very difficult to
        answer questions on other people's reports.  The reason

.          P-79

        why there is a number of different expert witnesses for
        the Defence in this case is to assist the court in a
        number of different areas because no one person is
        competent to deal with them all.
   Q.   Did you recommend Professor Levin?
   A.   I have to say, I am not an expert on the Canadian
        government and ----
   MR JUSTICE GRAY:  Professor Evans, can I explain to you
        (because you may not know this) the difficulty?  Mr Irving
        is representing himself.  I am, therefore, giving him what
        I hope is appropriate but quite a good degree of
        latitude.  He is accused of various things, like racism
        and anti-Semitism.  He has been cross-examined vigorously
        on that topic.  The Defendants had experts who produced
        great long reports, as you know, dealing with those topics
        and the Defendants have decided not to call them.
                  Mr Irving is, therefore, in the position of
        being the subject of the criticisms that they make of him,
        albeit no longer part of the Defendants' formal case, and
        he wishes to put one or two points to you as being
        somebody who is there to be shot at, as it were.  I have
        decided that it is proper that he should do so.
                  I think he may be spending rather long on it
        than I had hoped, but I am going to let him do that.  So,
        for the purposes of this part of the cross-examination,
        will you assume that the Canadians got hold of this

.          P-80

        document in the way he suggests?
   A.   Indeed, yes, my Lord.
   Q.   I am sympathetic with your concern.
   A.   I hope you will accept that I do find it very difficult.
   Q.   I understand it, but you understand, I hope, why ----
   A.   Sure, yes.
   Q.   --- I am not going to stop these questions?
   MR RAMPTON:  I should add perhaps, my Lord, it is not quite
        true that we are not calling any such people.  We are
        calling Professor Funke from Berlin.
   MR JUSTICE GRAY:  I cannot remember now what he deals with.
   MR RAMPTON:  He deals with exactly for Germany with what
        Eatwell deals with for this country and Levin for the
        United States.
   MR JUSTICE GRAY:  But is he going to say when he comes, "Oh,
        well, I cannot deal with this sort of Canadian stuff
        because I am dealing with Germany".
   MR RAMPTON:  That, I do not know -- very likely.
   MR JUSTICE GRAY:  That is the problem.
   MR RAMPTON:  I am not in any sense trying to argue with what
        your Lordship just said.  I just thought it necessary to
        add the gloss that, so far as anything to do with Germany
        is concerned, there will be a witness.
   MR JUSTICE GRAY:  Yes.  I had actually forgotten that, but
        thank you very much.  But let us take this relatively
        briefly, but I am not stopping you.

.          P-81

   MR IRVING:  Professor, is it correct that you recommended
        Professor Levin for this particular task?
   A.   No.
   Q.   You did not?
   A.   No.
   Q.   Are you familiar with Professor Levin at all?
   A.   No.
   Q.   If you read this paragraph, you will see that it says, he
        has extracted from my diaries which had been in front of
        him exactly as they had been in front of you, and in
        paragraph he says:  "Irving's April 13th 1995 diary entry
        recounts his displeasure of having his name mentioned 'in
        the most disparaging terms in half a dozen places' along
        with supposed errors in an official Canadian government
   A.   It says that, yes.
   Q.   He says that?
   A.   He does.

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