Archive/File: people/i/irving.david/libel.suit/transcripts/day007.12
Last-Modified: 2000/07/20

   MR RAMPTON:  What I say is this:  it is not negligent,
        negligence is no part of this case, I am not the least
        interested in the qualities or efficiency of Mr Irving's
        research or anything like that; what I am concerned about
        is two things.  He dignifies himself, and Professor Watt,
        for example, was no doubt called for this purpose, perhaps

.          P-98

        by some others, as an historian.  He then lends his
        considerable weight, if that be right, to repeated and
        I have to say from time to time very offensive Holocaust
        denial statements.  He does that, not as he would if it
        were Hitler that he was interested in researching, he does
        that upon the basis, the flimsiest possible basis, the
        Liechter Report.  Along down the road as your Lordship
        will hear, he thinks of other reasons why there were no
        gas chambers at Auschwitz.  But Liechter is the foundation
        of his denial.  For a man to do that, who glorifies
        himself as an serious historian, is morally wrong.  Now
        that is defamatory.  One of the aspects of this case is
        that he has done it because of his political "with a small
        P" sympathies and attitudes.  He is, we have pleaded, a
        right-wing extremist, and he feeds this Holocaust denial
        into audiences of right wing extremists.
   MR JUSTICE GRAY:  And he done it deliberately, in other words,
        it is not negligent.
   MR RAMPTON:  He has deliberately not been to Auschwitz and
        looked at the archive, never mind Moscow.  I have been to
        Auschwitz, I have not been to Moscow.  I have seen many of
        the documents in the archive and they are -- well, they
        are what they are.  Professor van Pelt deals with them.
   MR JUSTICE GRAY:  Go back to the camp officials, that does
        mean, does it not, that if your case is that Mr Irving
        deliberately shut his eyes to that corpus of evidence.

.          P-99

   MR RAMPTON:  He did not even care about it.
   MR JUSTICE GRAY:  And his case is, well, I was not an Holocaust
        historian, maybe I knew that some of that evidence was
        there, but I did not think it was any part of my function
        to go and trawl through it.
   MR RAMPTON:  Then he should have --
   MR JUSTICE GRAY:  Then we do not need to trawl through it in
        this trial, do we?
   MR RAMPTON:  My Lord, if he will accept that his denial is
        false.  If he will accept that it happened as described by
        Professor van Pelt and dozens of other people; that the
        eyewitnesses are telling the truth, those reports of
        Hoess, the commandant, are perfectly well-known to
        Mr Irving, for example.  He knows all about the Weber and
        Weisler Report that came out during the War. No doubt he
        knows all about Jean-Claude Pressack's (?) ^^ book.  They
        are there for anybody to read.
   MR JUSTICE GRAY:  I am not sure whether I see why you are now
        saying, rather contrary to what you have been saying
        before, that we have to make a finding of fact as to what
        happened in Auschwitz.
   MR RAMPTON:  No, absolutely, I have never said that.  I am not
        saying that.
   MR JUSTICE GRAY:  Why should he accept that those camp
        officials are telling the truth when they say they saw
        what they say they saw.

.          P-100


   MR RAMPTON:  Because then, my Lord, it is very easy, if you
        will not accept then that I have to lay out the evidence
        which would have been accessible to him if he had bothered
        to look before opening his mouth.
   MR JUSTICE GRAY:  Yes, but only in the sort of general sense
        of, let us put it as you might cross-examine, Mr Irving,
        are you aware that there are statements made by ...  and
        then we can list them and name them and give them
        positions within Auschwitz, Hoess and all the rest of
        them; did you read a word of their evidence?
   MR RAMPTON:  That is right, the answer will be "no", what you
        did do, Mr Irving -- one has to know that this is his position.
   MR JUSTICE GRAY:  I know, that is why I tried to --
   MR RAMPTON:  I know, well, he has not come clean, to use your
        Lordship --
   MR JUSTICE GRAY:  No, I disavow that expression now.
   MR RAMPTON:  If that is the position, that is fine, Professor
        van Pelt can go back to Canada, specifically though
        Mr Irving has to accept, before that can happen, that the
        Liechter Report is indeed bunk and very easily detected
        bunk, because what a responsible historian cannot do,
        unless he is motivated by some sinister ulterior motive,
        is nail his colours to the mast, as he said he did,
        without critical review of the mast to which he is nailing
        his colours, namely the Liechter Report.  And that is

.          P-101

        exactly what he did.
                  If he will concede that that was, to put it
        neutrally, a complete mistake, because Liechter is bunk,
        if he will concede first that a lot of the other evidence
        is freely available to anybody who bothers go and look at
        it; a lot has been published in books.  But that he did
        not care to look at it. But nonetheless went about his
        Holocaust denial in these various forums, why then we can
        close down the evidence, apart from what he said in these
        various places.
   MR JUSTICE GRAY:  Yes, thank you very much, Mr Rampton.
        Mr Irving, I do not think we will be able to quite
        conclude this argument, but I think the ball is in your
        court, because the admissibility of this evidence and how
        much detail we need to go into in regard to it seems to me
        to depend, to an extent, what you are going to say about
        it.
   MR IRVING:  Which your Lordship does not know yet, of course.
   MR JUSTICE GRAY:  Which I do not know yet and you do not really
        have to tell me, we can deal with this on the hoof as we
        go through your cross-examination.  It may have to come to
        that.  But I have to have an eye on how long this trial is
        going to last and it seems to me --
   MR IRVING:  Well, I threw a lifeline to your Lordship.
   MR JUSTICE GRAY:  That is not the predominant consideration, it
        has to be a feature of my thinking, it seems to me there

.          P-102



        may well be sense in dealing with the -- I have used
the
        camp official's eyewitness accounts as an example,
dealing
        with that body of evidence in a rather broad way
because
        if you say, "well, I was not familiar with the detail
of
        it", then Mr Rampton may achieve what he needs for his
        purpose by putting to you, in effect, you shut your
eyes
        to it deliberately.
   MR IRVING:  I can say in two lines if that will assist you
what
        my position on the four or five camp officials will
be;
        that I was not familiar with the evidence of the lower
        camp officials.  I was partially familiar with the
        evidence of Camp Commandant Hoess.  I have reasons to
        discount that evidence, which I will bring out during
        cross-examination of the experts.  But the reasons
have
        only become apparent to me now I have done the
research
        for the trial.  But at the time , of course, I had
this
        gut instinct against eyewitnesses in the first place.
        I have always preferred to use concrete documents
rather
        than statements of people, for whatever reason.  My
Lord
        that does not help your Lordship very much at this
stage.
   MR JUSTICE GRAY:  It does not help us in the sense that it
does
        not enable me to make a ruling which will ...
   MR IRVING:  I am hoping that your Lordship will be able to
        make --
   MR JUSTICE GRAY:  Direct which evidence we can safely
exclude
        and which we admit, I am afraid.

.          P-103



   MR IRVING:  Your Lordship is now aware of my arguments as
        against fraudulence in this action.  I am hoping your
        Lordship will make determinations from time to time as
to
        what is admissible and what is not on the issues as
        pleaded, and possibly at a later date, once you have
heard
        my remarks about the eyewitness, or went a bit further
        down the road we have had a chance to cross-examine
        Professor van Pelt, then you can possibly even make a
        ruling on the basic issue as to the admissibility of
what
        happened at Auschwitz or not, if I can put it like
that.
   MR RAMPTON:  My Lord, can I add one thing, I know it is a
        little irregular, but it may help.  Mr Irving says
that
        now with hindsight he sees reasons to doubt what, for
        example, Hoess said, I believe that that is an
irrelevant
        observation.  What he now sees as being flaws in
Hoess'
        evidence is quite beside the point, we are not
concerned
        with what he now sees; what we are concerned with is
with
        Mr Irving's state of mind, his bona fides, at the time
        when he made these denial statements.
   MR JUSTICE GRAY:  Yes, but that really is having the best
of
        both worlds, is it not? You are wanting me to see what
        Hoess said and to be satisfied that he is correct in
what
        he says.
   MR RAMPTON:  No.
   MR JUSTICE GRAY:  But you seek to prevent Mr Irving from
        showing why he does not accept Hoess.

.          P-104



   MR RAMPTON:  No, my Lord, that it is perhaps a slight
        misapprehension, it is probably my fault, on your
        Lordship's part.  I do want you to see what Mr Hoess
says,
        in just the same way as Mr Irving could have seen it
        before he spoke in public.  I do not need your
Lordship to
        accept what Hoess said is true.
   MR JUSTICE GRAY:  That is where I think I joined issue with
you
        earlier on.
   MR RAMPTON:  I need your Lordship simply to say this --
   MR JUSTICE GRAY:  The evidence was there.
   MR RAMPTON:  This evidence is suggestive of a strong
        probability it was there, and it is not such obviously
        rubbish evidence that one would join immediately with
        Mr Irving and say, "no, there were no gas chambers at
        Auschwitz"; quite the contrary. That is all I need to
do
        because all I am doing by looking at the evidence is
        suggesting what an open-minded, careful historian
would
        have found if he had looked at the evidence.
   MR JUSTICE GRAY:  But you see open-minded, careful --
   MR RAMPTON:  Open-minded, leave the "careful" out of it.
   MR JUSTICE GRAY:  Yes, "careful" is not the ...
   MR IRVING:   Open-minded historian without an ulterior
motive,
        beyond informing the public of the truth would have
found
        if he had looked.
   MR JUSTICE GRAY:   That is the right formulation, yes. I
will,
        if you would find it helpful, both of you, make a
ruling,

.          P-105



        but I think, really, we are going to have to deal with
        this on a bit of a piecemeal basis.  Would it help if
        I gave an indication maybe at 2 o'clock what I think
        the --
   MR RAMPTON:  Well, it would --
   MR JUSTICE GRAY:  Guidelines should be.
   MR RAMPTON:  I am sorry, I did not mean to interrupt.  It
would
        very much help, because it will put Mr Irving in the
        position of deciding whether or not, in order to save
time
        and everybody's labours, whether or not there are not
some
        concessions that he ought to make.
   MR IRVING:  That rather implies that I can answer under
oath in
        any way that is not true.
   MR JUSTICE GRAY:  No, it does not imply anything of the
sort.
   MR RAMPTON:  No, I meant before he gives evidence.
   MR JUSTICE GRAY:  I will try and say something which helps
at 5
        past 2.
                       (Luncheon Adjournment)
              (Please see separate transcript for Ruling)
   MR IRVING:  My Lord, I think that admirably clarifies the
        situation.  I hope that you will agree that it was a
        useful exercise to conduct at this point in the trial.
   MR JUSTICE GRAY:  I most certainly do because I think it
may
        keep the case in slightly more reasonable bounds than
        might otherwise have been so.
   MR IRVING:  I think that this was the right time to conduct

.          P-106



        that exercise, being several days into the trial.
Thank
        you very much, my Lord.
   MR JUSTICE GRAY:  Are you both happy to proceed with
        cross-examination on the topic of Auschwitz?
   MR RAMPTON:  Indeed I am.  I have not of course got a
        transcript yet.  We have been trying to follow it on
the
        screen.  May I see if I have understood the last part
of
        your Lordship's ruling correctly?
   MR JUSTICE GRAY:  Yes.
   MR RAMPTON:  If and in so far as Mr Irving should contend
that
        he was entitled to rely on the Leuchter report in the
way
        that he did, then I have a gate open, as it were --
not
        that I want it to, I would much rather it did not --
for
        me to go through the detail, in effect.  Is that right
or
        not?
   MR JUSTICE GRAY:  Sorry, I am not quite sure. The detail of
        what?
   MR RAMPTON:  If he said should say, I maintain that I was
        entitled to rely on the Leuchter report, then the detailed
        criticisms of the Leuchter report may become relevant.
   MR JUSTICE GRAY:  I totally agree.  What I was intending to say
        right at the end of my little ruling was that that is
        really open season, the whole of the Leuchter report.

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