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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day026.17

Archive/File: people/i/irving.david/libel.suit/transcripts/day026.17
Last-Modified: 2000/07/25

   MR JUSTICE GRAY:  I listen to the evidence, is the answer, or
        look at the evidence.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  And see what it amounts to.
   MR IRVING:  But for them just to say that a Mr Webber Mr Smith
        or Mr Bloggs is an extremist and say "Mr Irving has met
        him, we can prove it, we have photographs of him standing
        to next to Mr Bloggs", this is going to be a problem is
        going to confront the court.
   MR JUSTICE GRAY:  Maybe what we had better to do to cater for
        that concern, and I do understand it, we cannot have a
        completely wide, open-ended kind of discussion about all
        these organizations, unless the ground work is laid, is
        for me to invite Mr Rampton perhaps to take Mr Funke

.          P-150

        through some of the main organizations, IHR and maybe some
        of the others, to lay the foundation for saying that they
        are the sorts of organizations on which the Defendants
        should be entitled to rely.
   MR RAMPTON:  That is what I had hoped your Lordship might allow
        me to do, because the tangle of interlocking personalities
        or personnel and organizations in Germany is a nightmare.
        Professor Funke is probably the only person in the world,
        apart from Mr Irving who knows his way round it, and what
        I had hoped was that I am going to try to show some film.
        I will have to did it in cross-examination first, I will
        point out some faces, and your Lordship will see exactly
        what I have been talking about.  Then Professor Funke who
        will by then have instructed me, I will know who the faces
        belong to and, roughly speaking, what their political
        colour is.  I can start off in that way.  Then your
        Lordship will find at the back of Professor Funke's report
        a list of abbreviations which nobody should have to try to
        memorize, but much more useful a sort of dramatis
        personae, that is to say, a short biographical sketch of
        each of the main right-wing extremists with whom Mr Irving
        is associated in Germany.  That is an extremely useful document.
   MR RAMPTON:  Herr Funke has also produced a short executive
        summary of his report, explaining the evolution and

.          P-151

        history of neo-Nazi right-wing extremism in Germany.  As
        soon as I get back to the office I will release copies of that.
   MR JUSTICE GRAY:  Yes.  Mr Irving, there we are.  That is the
        view I take on your submissions.  What it comes to is we
        will look carefully at any organizations, and indeed any
        individuals statements, on which the Defendants are
        relying, but in principle, for the reasons I have given,
        it seems to me they are entitled to advance this as part
        of their plea of justification.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  But we will look at it closely because it
        cannot get out of hand.
   MR IRVING:  I am very anxious that it should not get out hand.
        It is liable to turn into a shooting gallery of the most
        random sort in which any numbers of names are dragged in
        and presented as being neo-Nazis who happen to have been
        in the same room as I or in the same continent or in the
        same county.
   MR RAMPTON:  I would not dream of doing that.  It would be a
        monstrous waste of the court's time, and anyway it would
        get me nowhere which is perhaps more important.  It will
        consistent of showing Mr Irving's intimate relationships
        over periods of time with individuals, ranging from them
        turning up at his meetings, this kind of thing, him having
        dinner with them.  It is nothing like finding two people

.          P-152

        in the same waiting room at a railway station.  It really is not.
   MR JUSTICE GRAY:  There are two propositions, both have to be
        put together.  One is an association.
   MR RAMPTON:  Exactly.
   MR JUSTICE GRAY:  Which is a pure question of fact.
   MR RAMPTON:  Then they have to prove who the person is.
   MR JUSTICE GRAY:  Then you have to prove the colour of their,
        whatever it is ----
   MR RAMPTON:  Yes, that is exactly right.
   MR JUSTICE GRAY:  --- cut of their gib.  It is not an easy
        area.  I think rogues gallery, which is what this in a way
        comes to, is always difficult.  We have to watch it.
   MR RAMPTON:  Rogues' gallery I have always hated as an
        advocate.  I have always found it difficult, and it is a
        question of fine judgment in each case.  But this is not
        rogues gallery, if I can prove that Mr Irving is one of
        the rogues.
   MR JUSTICE GRAY:  That is always true of rogues gallery.
   MR IRVING:  My Lord, in response of course, if I am going to be
        subjected to this kind of public flogging, then course
        I shall expect or hope for a greater degree of latitude in
        presenting my own bundle E when the time comes, because
        that is also a kind of rogues gallery of its own kind.
   MR JUSTICE GRAY:  Who are rogues?
   MR IRVING:  The international endeavour to destroy me.

.          P-153

   MR IRVING:  There are certain parallels there which I would draw.
   MR JUSTICE GRAY:  I do not think this can be approached on the
        basis of tit for tat, as it were, but I hear what you
        say.  You would be entitled to say, Mr Irving, that you
        wanted a formal ruling from me.  I think as we have the
        transcript, and as there are a great many other things for
        all of us to do overnight, as it were, you are entitled to
        ask for it, do you want me to do a formal ruling?
   MR IRVING:  Not a formal ruling, my Lord, but I would like to
        know what the timetable is now for the next two or three
        days so that I can plan.
   MR JUSTICE GRAY:  That is a very good question.
   MR RAMPTON:  I am in your Lordship's hands.  I am in
        Mr Irving's hands.  I say with not with any pride or
        whatever, but I do say that we have made very good
        progress in this case.  We are at least four, maybe five
        or six, weeks short of the estimate even now.  We have
        nearly finished the evidence.  I quite agree, those files
        actually landed on me on Friday too, and my heart sank
        too.  I have in fact read them.  They do contain a lot of
        material about Mr Irving's activities because they are
        taken from his diary and from his correspondence and so on.
   MR IRVING:  Selected from my diary.

.          P-154

   MR RAMPTON:  Yes, maybe.  That is right.  The human brain is
        very good at selection.  I would like him, if he needs it,
        to have the time to read them before I cross-examine him
        about them.  I have got a residuum of cross-examination
        about history still to do, loose ends.  I am entirely in
        your Lordship's hands.
   MR JUSTICE GRAY:  Is it Herr Funke, is it, or Dr Funke?
   MR RAMPTON:  Dr Funke is here.
   MR JUSTICE GRAY:  Presumably, the sensible thing then would be
        to take his evidence next.
   MR RAMPTON:  Before I cross-examine Mr Irving?
   MR JUSTICE GRAY:  Well, I am completely easy.  It is just a
        waste of time, I would have thought, to have Dr Funke
        hanging about while you cross-examine.
   MR RAMPTON:  Well, they want me to cross-examine first.
   MR JUSTICE GRAY:  Let us ask Mr Irving because your view counts.
   MR IRVING:  My Lord, I would like to cross-examine Dr Funke
        before my cross-examination.  The simple reason is this
        may enable us to knock out a number of personalities or
        organizations which would probably be useful.  If we
        establish the number of personalities or organizations are
        perfectly clean, and not criminal and are non-violent and
        non-revolutionary and not anti-Semitic and none of the
        things that Professor Lipstadt has said in her book, then,
        presumably, your Lordship would not be interested in my

.          P-155

        relationship with them.
   MR JUSTICE GRAY:  That is a fair point.  Mr Rampton, do you want to ----
   MR RAMPTON:  No, it is all right.
   MR JUSTICE GRAY:  What Mr Irving has just said (and there is
        something in it) is that if he manages one way or another
        to knock out any of the organizations, basically,
        I suppose in his own cross-examination of Dr Funke, Herr
        Funke, then he does not need to face cross-examination
        from you on that particular topic?
   MR RAMPTON:  Well, it may be.  On the other hand, from
        Professor Funke's point of view and certainly from mine,
        it is going to be a very great deal quicker, I mean, if
        Mr Irving is going to be able to knock out an
        organization, he can do it in answer to my questions.
   MR IRVING:  What I would prefer to do is to put to Dr Funke
        certain extracts from diaries pre-emptively, if I can put
        it like that, which shows that I have shown a proper
        respect and distaste for some of these people and that
        would be the time to do it.
   MR RAMPTON:  This is all the wrong way round.  It is Mr Irving
        who is the Claimant in this case.  I cannot say I have a
        right because nowadays those sorts of procedural rights no
        longer exist.  But it is unsatisfactory that the Claimant
        in the case should, as it were, get first shot at the
        Defendants' experts.

.          P-156

   MR JUSTICE GRAY:  Well ----
   MR RAMPTON:  It should not be that way around.
   MR JUSTICE GRAY:  Save for this, this may be unfair and wrong
         -- if so, tell me -- my impression was that you
        deliberately reserved for a later stage of
        cross-examination the whole issue of extremist
        associates.  Indeed, I think at one time you were not sure
        you were going to necessarily want to cross-examine on them.
   MR RAMPTON:  I think that is true.  I have not deliberately
        reserved it.  It just got left.  I mean, it was going to
        be last in the queue anyway.
   MR JUSTICE GRAY:  All right.  I think I am going to suggest
        that Herr Funke gives evidence before you resume your
        cross-examination of Mr Irving because I think that may
        have the effect to some extent of short circuiting things.
   MR RAMPTON:  If your Lordship says so.  I do believe it will be
        quicker the other way round, but I am sure Professor Funke
        can deal with it, but if that is going to happen, then
        I, with your Lordship's permission, would want a little
        bit of time in chief with Dr Funke first.
   MR JUSTICE GRAY:  I am sure that is sensible.
   MR RAMPTON:  Which I think would speed things up.  So perhaps
        we can do that tomorrow or whenever, I do not know.
   MR JUSTICE GRAY:  Do you want to, as it were, introduce him and
        make a start with him?

.          P-157

   MR RAMPTON:  What, now?  Yes, well, no, I do not want to
        because I have not got the kit together.
   MR JUSTICE GRAY:  All right.
   MR RAMPTON:  As I was expecting to cross-examine first, quite
   MR JUSTICE GRAY:  I understand why you do.
   MR RAMPTON:  We need videos too which we have not got in court.
   MR JUSTICE GRAY:  We will have that first thing in the morning?
   MR RAMPTON:  We will have them first thing in the morning.
   MR JUSTICE GRAY:  Can I ask for everybody's benefit what the
        likely duration of Dr Funke is going to be?
   MR RAMPTON:  As I am not having first shot at him, I am not saying ----
   MR JUSTICE GRAY:  Well, you will, first shot at Mr Irving, you
        mean?  You are going to have first shot with Herr Funke.
   MR RAMPTON:  Yes, but only in chief.  I will only be,
        I suppose, about an hour in chief.
   MR JUSTICE GRAY:  Yes, that is what I assumed.
   MR IRVING:  I will take the rest of the day, that is all.
   MR JUSTICE GRAY:  The rest of the day and that is all?
   MR RAMPTON:  Then we can, subject to Mr Irving's having had
        time to read those files if he wants to, finish the
        evidence this week.
   MR JUSTICE GRAY:  Yes.  That is what I was rather hoping.

.          P-158

   MR JUSTICE GRAY:  In that case we will adjourn now and Herr
        Funke tomorrow morning at 10.30.

    (The court adjourned until the following day)

.          P-159

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