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Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day029.19

Archive/File: people/i/irving.david/libel.suit/transcripts/day029.19
Last-Modified: 2000/07/25

   MR IRVING:  There are two documents I am objecting to, one is
        the Muller document of which I still have not been given
        adequate information on its surroundings, its family and

.          P-168

        where it comes from, and even if I am given the
        information I am not sure how I can put that before your
        Lordship, except by way of including my representations in
        my closing speeches which is clearly unsatisfactory
        because they will then have to answer to that.
   MR JUSTICE GRAY:  That is the first document.
   MR IRVING:  The second document which I object to in the manner
        in which it was presented was the video tape of the Halle
        speech over which we had serious altercations with the
        solicitors for the Defence, because it was withheld from
        me, most improperly and fraudulently withheld, which
        resulted in a hearing at a lower level, as a result of
        which the Second Defendant was ordered to provide an
        affidavit on her list, behind which I was not able to go.
        I was informed that she would be presented for
        cross-examination in the appropriate manner, which of
        course has now not happened.  The object of that
        particular altercation was Halle video, and has now been
        presented to the court.  I think that as they have
        misbehaved over that video, withholding it from me, it was
        then accidentally provided to me, it was returned with all
        my videos to me, that was the only way I became aware of
        the fact that this video consisted containing the real raw
        material ----
   MR JUSTICE GRAY:  You are giving me a bit of the history and
        I do not think now is the time to go into it, because you

.          P-169

        need to get your thoughts together, but that is something
        I think ought to be dealt with sooner rather than later,
        because the way of the Defendants have put their case is
        quite a significant aspect of ----
   MR IRVING:  It is significant when it goes to costs, my Lord.
   MR JUSTICE GRAY:  --- that compartment in the case.
   MR IRVING:  It is significant when it goes to costs.
   MR JUSTICE GRAY:  I do not know about costs, but I do think you
        ought to have the opportunity to make objections.  I do
        not think that is a frivolous objection.  I think the
        Muller document is in an altogether different category, if
        I may say so.
   MR RAMPTON:  Can I take this these stages?  The Muller document
        is in hand.  Dr Longerich is in touch with the IFZ.  As
        I have told your Lordship and Mr Irving at least once
        before, the reason we believe why Mr Irving could not get
        hold of it was that the file reference he gave, not
        through his fault, was wrong.  We think that the document
        is both in Munich and in the criminal prosecution archive
        in the Ludwigsburg, and we will produce what we can find
        when we can find it.
                  As to the Halle tape, can I say two things?
        That is the best version we have.  If Mr Irving, by way of
        argument or submission, is able to point to features of
        the video, or indeed to extraneous evidence which
        demonstrates that that tape is in some sense, some

.          P-170

        important sense, unreliable, why then, your Lordship can
        take that into account; not by way of whether or not it is
        admissible, but whether or not it should be given weight.
   MR JUSTICE GRAY:  I am not even sure about that.  As
        I understand the objection, it is that it has been so
        heavily edited at various stages by various people that it
        gives a wholly false impression of what actually happened.
   MR RAMPTON:  No.  It has not been edited.
   MR JUSTICE GRAY:  I am not saying I agree with that.  I am
        saying that that I understand to be the objection, and if
        that be right then it might be that it will be knocked out
   MR RAMPTON:  It might be.
   MR JUSTICE GRAY:  I am not deciding it now obviously, but
        I think that that objection, if it is taken, ought to be
        disposed of one way or the other sooner rather than later.
   MR RAMPTON:  If it is authentic and not a forgery and not, as
        it were, apt to mislead because of the way in which it has
        been edited, I mean mislead significantly, why then, it is
        admissible.  It matters not what its provenance is.  It
        matters not in the least what fraud Mr Irving may assert
        on the part of my solicitors -- I have to say I have
        absolutely no idea what he is talking about.
   MR JUSTICE GRAY:  I am not going to deal with it now, but if
        I am told by a party that there is a video which has been
        put in about which he wants to make, in effect, a

.          P-171

        submission that it has become a bogus item of
        evidence ----
   MR RAMPTON:  It is not bogus.
   MR JUSTICE GRAY:  That is effectively what I understand
        Mr Irving to be saying.
   MR RAMPTON:  Then I will deal with it when I am fully instructed.
   MR JUSTICE GRAY:  Quite.  All I am saying at the moment is that
        I think this ought to be dealt with before final speeches,
        because one normally deals with these sort of evidential
        questions at an earlier stage, which unfortunately means
        that we will have to have another session sometime.  I do
        not really mind myself whether it is tomorrow or Monday.
   MR IRVING:  Next week sometime would be preferable.
   MR RAMPTON:  I would rather not tomorrow because I need time.
        I do not want to relay half understood messages.
   MR JUSTICE GRAY:  Then I think Monday morning is the right time
        to do it.
   MR RAMPTON:  Monday morning might be all right, but first
        I need to know chapter and verse as to what Mr Irving's
        objections actually are, with supporting documentation.
   MR IRVING:  I have put a clip together, but can I say that
        I expect it will be a conduct of the case matter, rather
        than a withdrawal of the video tape matter finally, if I
        can summarise it like that.
   MR RAMPTON:  In that case, I really do not see the point of

.          P-172

        wasting his Lordship's time, and I have to say mine, at
        this stage in the case.  If it is a conduct of the case
        question it can only every reflect on costs or damages.
   MR JUSTICE GRAY:  I do not know.  I am not sure what the
        objections are.
   MR RAMPTON:  Can I wait to see what Mr Irving actually says
        because I have no idea what he is talking about at the moment?
   MR JUSTICE GRAY:  Yes.  I hope we can avoid having a further
        session in court ----
   MR RAMPTON:  So do I.
   MR JUSTICE GRAY:  --- but one thing I do want to deal with, and
        if it can be dealt with now well and good, is the list of
        issues, because I think it is going to make a huge amount
        of difference to my task for a start, and I think it is
        possible going to simplify Mr Irving's task if we can
        agree or possibly improve on the list and the order in
        which the issues are taken.  If you have not had a chance
        to look at it ----
   MR RAMPTON:  I have not, I am afraid.
   MR JUSTICE GRAY:  I wonder whether we can deal with that -- --
   MR RAMPTON:  I do not want to deal with it on the hoof, if your
        Lordship will permit me not to.  This is a list very
        similar to that which I myself have composed.  I really do
        want to be sure before I agree to anything that it is
        either not got something in that I do not read or has some

.          P-173

        things missing.
   MR JUSTICE GRAY:  Mr Irving, you obviously have not had a
        chance to consider it?
   MR IRVING:  I have glanced at it and it seemed to be very
        useful indeed, but I hope not it is not an obligatory
        list, that I do not have to address all the matters that
        are contained in it.
   MR JUSTICE GRAY:  You do not have to address any of them, but
        they are, it seems to me, all questions that I have to
        consider and, to an extent anyway, make a finding about.
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  So if you do not deal with them ----
   MR IRVING:  I hear those words and I understand the meaning of them.
   MR JUSTICE GRAY:  Mr Rampton, do you want to say anything about them?
   MR RAMPTON:  I would rather not say anything about them at the moment.
   MR JUSTICE GRAY:  When are you going to?
   MR RAMPTON:  What I will do, if I gain permission, is to write
        any additions or subtractions that I having thought about
        it tomorrow probably, that I feel in my client's interests
        ought to be made any amendments and then I will simply
        send it to your Lordship and to Mr Irving.
   MR JUSTICE GRAY:  Yes.  I am again perfectly happy with that.
        Can you at the same time consider, and this obviously

.          P-174

        applies to Mr Irving as well, what I think is very
        difficult in this case, which is the sequence in which it
        is sensible to take the issues, because they all mesh into
        one another and overlap and so on, and it is quite
        important that the judgment ----
   MR IRVING:  As drafted by your Lordship?
   MR JUSTICE GRAY:  What I am trying to do is to make the
        judgment flow, if that is the right word, or be comprehensible.
   MR IRVING:  I am sure that your Lordship being an outsider will
        have synthesized the matters adequately and absolutely probably.
   MR JUSTICE GRAY:  If you have any suggestions for improving it
        in that respect, then I would be grateful.
   MR RAMPTON:  My Lord, I have some housekeeping that I am
        supposed to do.  First, they are on the list, little
        sections for RWE 1 Staglich and Varela 8A and 8B.  They
        are very small.
   MR JUSTICE GRAY:  Yes.  That is that.  What else?
   MR RAMPTON:  I promised a response if I could get one from
        Professor van Pelt about those three labour camps that
        Mr Irving produced.  I have the response and I would like
        to add it, if I may, as a supplement to Professor van
        Pelt's report.  It contains some typographical errors but
        no matter.
   MR JUSTICE GRAY:  It is all very well just throwing documents

.          P-175

        at me, but this is another 20 pages.  What is this?
   MR RAMPTON:  The broad conclusion is very simple.  They have
        got nothing whatever to do with extermination.  Those are
        documents which deal with keeping up the levels of
        workers, because they date from a period which arrived
        I think in 1942, they deal with a period when the SS,
        unlike the preceding period, had started hiring out its
        workers to commercial companies like I.G. Faben and so on,
        and therefore there came a concern because these workers
        were no condition to do the jobs they were being paid for,
        and they were paid, there came a concern that the SS camps
        were letting their slave workers die like flies instead of
        keeping them fit and healthy to work in the factories.
        This is connected, according to Professor van Pelt,
        obviously and naturally with the fact that the Germans
        needing to recruit soldiers were having to take them from
        factories in the greater Reich, and so needed the slave
        labour to keep the war economy going.
                  He then explains why this has absolutely no
        connection with the extermination, first, because the
        exterminees, if I can call them that, were not registered
        as worker prisoners, and second because of course they do
        not concern any of the extermination camps.
   MR JUSTICE GRAY:  So it is exactly what Professor Funke says?
   MR RAMPTON:  Yes, that is what Professor Longerich says.
   MR JUSTICE GRAY:  I am sorry, Longerich.

.          P-176

   MR RAMPTON:  It was observed by your Lordship in the course of
        the cross-examination that Mr Irving's questions were
        directed to the wrong witness.
   MR JUSTICE GRAY:  Actually it was Professor Funke, was it not?
   MR RAMPTON:  No, it was Professor Longerich.
   MR JUSTICE GRAY:  Anyway, whoever.
   MR RAMPTON:  So that is what that deals with.
   MR JUSTICE GRAY:  Thank you very much.
   MR RAMPTON:  I am not suggesting your Lordship read it now or
        anything like that, but I may make reference to it in
        closing.  Then the next thing, my Lord ----
   MR IRVING:  Before we move on from that, my Lord, what kind of
        document is this?
   MR JUSTICE GRAY:  It is further evidence which actually to be
        fair to the Defendants ----
   MR RAMPTON:  Mr Irving laughs ----
   MR JUSTICE GRAY:  --- resulted from your putting documents
        which I think had not really been seen before, I do not
        think they were disclosed documents ----
   MR RAMPTON:  Absolutely not.
   MR JUSTICE GRAY:  --- in the course of your cross-examination,
        I thought it was of Professor Funke but I am sure
        Mr Rampton is right, it was Dr Longerich.  Do you remember that?

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