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IN THE HIGH COURT OF JUSTICE            1996 I. No. 113

Royal Courts of Justice
                                           Strand, London
                               Wednesday, 15th March 2000

                            MR JUSTICE GRAY

        B E T W E E N:

   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

                  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

                  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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