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Subject: Irving v. Penguin & Lipstadt: Judgment XIII-05
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-13.05
Last-Modified: 2000/04/11

13.113 Some time was spent during the evidence viewing a video of a
meeting in Halle on 9 November 1991, which was attended by Irving at the
invitation of Ursula Worch (see paragraph 10.12 above). Irving complains
that the film has been edited and re-edited so as to present him in a
prejudicial light. I do not accept that the effect of the editing
materially distorts the nature of the meeting. Irving can be seen
watching assorted groups, many of them in uniform, march towards the
meeting place. Irving is shown on the platform when he was introduced to
the crowd. He then addressed the meeting. There is nothing objectionable
in what he is recorded as having said. He can be seen shaking his head
in disapproval when Nazi slogans such as "Sieg Heil" are chanted. He
spoke in the early afternoon and claimed in his evidence that he left
soon afterwards. His diary, however, records him as having left at 5pm.
I believe that he remained at the meeting for longer than he was
prepared to admit. The significance of the video of the Halle meeting,
in my judgment, is that it evidences Irving's willingness to participate
in a meeting at which a motley collection of militant neo-Nazis were
also present.

13.114 The evidence supports the claim that Irving has associated with
several extreme right-wing organisations in the US. He has a close and
longstanding relationship with the Institute of Historical Review (see
paragraph 10.23 above). It is an avowedly revisionist organisation whose
membership undoubtedly includes many from the extreme right wing. Irving
agreed that the membership of the IHR includes "cracked anti-semites".
The evidence indicates that Irving is also associated with the National
Alliance. I accept the Defendants' case as set out in paragraph 10.24
above. In my view Irving cannot fail to have become aware that the
National Alliance is a neo-Nazi and anti-semitic organisation. The
regularity of Irving's contacts with the National Alliance and its
officers confirms Irving's sympathetic attitude towards an organisation
whose tenets would be abhorrent to most people.

Right-wing individuals

13.115 I am satisfied that Irving has associated to a significant extent
with the following individuals: Frey, Deckert, Althans, Philip, the
Worches, Christophersen, Staglich, Rami, Varela, Zundel, Remer, Weckert
and Faurisson. They are described in paragraphs 10.8 to 10.25 above.
They are all right-wing extremists. I have no doubt that most, if not
all of them, are neo-Nazis who deny the Holocaust and who are racist and
anti-semitic. I also have no doubt that Irving was aware of their
political views. His association with such individuals indicates in my
judgement that Irving shares many of their political beliefs.

Irving's accounts of the bombing of Dresden

13.116 The immediate question is whether the Defendants have justified
their criticisms of Irving's account, principally in The Destruction of
Dresden, of the circumstances and consequences of the Allied bombing
raid on Dresden on the nights of 13 and 14 February 1945. The principal
allegation is that Irving relied on forged evidence. But the Defendants
also accuse him of misrepresentation, falsification, suppression of the
evidence and twisting the facts for his own purposes (see paragraph 11.5
above).

Irving's reliance on the forged Tagesbefehl No. 47

13.117 The forged evidence on which Irving is said to have relied is
Tagesbefehl (Order of the day) No 47 ("TB47"). The majority of the
Defendants' criticisms relate to or are connected with the way in which
Irving dealt with this document.

13.118 I have set out in detail in paragraphs 11.9 to 11.40 above the
history of the forged TB47 and the parties' respective arguments about
Irving's reliance on it. In my judgment there are serious criticisms to
be made of Irving's use of this document. In the first place Irving knew
all along that there were powerful reasons for doubting the genuineness
of the purported TB47. It had been denounced by Seydewitz as fraudulent.
Indeed Irving himself was aware that Goebbels had been seeking to take
propagandist advantage of the raid by making exaggerated claims as to
the number of deaths. Irving in1963 described the so-called TB47 as
"spurious" (although I accept that at that date he had not seen a copy).
When he did receive a copy, he was warned by Lange, the Dresden
archivist, that it was a patent forgery. I accept the evidence of Evans,
which I have summarised at paragraph 11.18 above, that there were
features within the document itself which cast doubt on its bona fides.
Irving therefore had every reason to be suspicious about the claim that
the death toll might ultimately be 250,000.

13.119 Yet when in 1964 Irving received a copy of TB47 from Funfack via
Hahn, he appears to have been eager to accept the document as a true
copy and the figures claimed in it as accurate. I am not persuaded that
there is any valid explanation for Irving's change of heart about the
genuineness of the document. Indeed in a memorandum written shortly
after he obtained his copy of TB47 Irving expressed distinct
reservations about its authenticity and the accuracy of the figures
contained in it. In these circumstances it was in my view incumbent of
Irving, as a responsible historian, to treat the document with extreme
caution. He should have verified the provenance of the document with
Funfack and with anyone else in a position to assist. In the meantime he
should not have made use of so suspect a document.

13.120 There is no evidence that Irving sought Funfack's comments about
the document. He did nothing to dispel the doubts he had previously
entertained about it. In these circumstances it was in my judgment
reprehensible for Irving to write to the Provost of Coventry Cathedral
enclosing a copy of the supposed TB47 and expressing himself to be in no
doubt as to its authenticity. It was equally reprehensible of Irving to
write in similar terms to his German publisher.

13.121 Irving's conduct thereafter is even less defensible. As I have
described in paragraph 11.14 above, he was told by Funfack that he was
in no position to vouch for TB47. I accept that Irving was also told by
Funfack of the estimates of 180,000 and 140,00 put on the number of
casualties by Mehnert and Fetscher respectively. But that information
(which was never verified) did little to remove the suspicion
surrounding TB47. I do not accept Irving's explanation that he
disbelieved what Funfack told him because he was living in a regime
which was still Communist and was fearful of the consequences of being
linked to the Nazi regime. Nor can I accept that the recollection of
Frau Grosse of the estimate her husband had put on the number of
casualties should have weighed significantly with Irving in assessing
the reliablity of the figures in TB47.

13.122 Irving made reference to the fake TB47 as a genuine document in
the Italian edition of Dresden in terms which suggested that it was a
genuine document. Doubts about the authenticity of the document were
subsequently increased yet further by Miller's letters to Irving to
which I have referred at paragraph 11.19. Irving's disregard of that
apparently credible evidence was, in my view, a further grave lapse on
his part. His explanation that he considered that Miller was
"fantasising" when he gave a figure of 30,000 deaths strikes me as
absurd. There was nothing in what Miller wrote to suggest to an
objective commentator that Miller was other than a credible and reliable
witness. (In the event the figure in the genuine TB47 turned out to be
25,000 which was close to Miller's figure). The subsequent publication
of TB47 in an appendix to the 1966 Corgi edition of Dresden without the
expression of any reservations about its genuineness or the figures
contained in it was in my view another grave lapse on Irving's part.

13.123 The Final Report and Situation Report No 1404, to which I have
referred in paragraphs 11.23 and 11.24 above, would have been regarded
by any dispassionate historian as conclusive proof that the purported
copy of TB47 was a fake and that there was good reason to suppose that
the death toll was in the region of 25,000. This was the figure accepted
by Reichert in his book on the bombing, which is regarded by Evans as
authoritative. I accept that Irving is entitled to credit for having
taken the unusual step of writing to the Times about the new casualty
figure. But that does not in my judgment excuse the doubts he continued
to cast upon the accuracy of the new figure, still less does it excuse
the grossly inflated claims as to the number of casualties which Irving
continued to make in a subsequent edition of Dresden and in the speeches
detailed in paragraphs 11.6 and 11.7 above.

13.124 When asked what was the supporting evidence for these inflated
claims, Irving relied on the estimates for the number of casualties made
by Mehnert and Fetscher and on the recollection of Frau Grosse, which I
have mentioned. He also testified that his claims had been based on
estimates as high as 250,000 which he had received from a great many
individuals. Irving neither identified the individuals nor disclosed the
letters. He prayed in aid also the fact that there were in Dresden at
the time an unquantified number of refugees fleeing before the advancing
Russian army. Finally he relied on the estimate of Hans Voigt,
summarised in paragraph 11.52 above, that 135,000 had been killed. But,
as stated in paragraph 13.126 below, none of this material casts
significant doubt on the accumulation of evidence that the true death
toll was within the bracket of 25-30,000.

Whether Irving has attached credence to unreliable evidence and/or
failed to take account of reliable evidence

13.125 The unreliable evidence upon which, according to the Defendants,
Irving was unjustified in relying is set out in the preceding paragraph.
Historical evidence cannot of course be compartmentalised into reliable
and unreliable evidence. It is part of the skill of an historian to
evaluate the degree of individual items of evidence, seeking to adopt a
consistent approach throughout.

13.126 It appears to me that the evidence which I have summarised in
paragraph 13.124 affords a very slender basis for the claims which
Irving has made for the numbers killed in the raids. The evidence of
Mehnert, Fetscher and Frau Grosse was secondhand and unverified. In the
absence of any indication on what they were based, I do not consider the
Irving should have given any credence to estimates in letters from
unidentified individuals. His speculation about the number of refugees
does little to cast doubt on the reliability of the figures quoted in
the official reports. Voigt's evidence was uncorroborated and unlikely
to be correct in the light of the number of deaths recorded on the
official cards. In my view, Irving should not have quoted numbers based
on this evidence. Irving should have taken far greater account of the
doubts about the genuineness of TB47; of the cogent and credible
evidence of Miller and above all of the figures contained in the Final
Report and in Situation Report No 1404. Having done so, Irving should
have discounted altogether the unsatisfactory evidence collected in
paragraph 13.124 above. In my judgment the estimates of 100,000 and more
deaths which Irving continued to put about in the 1990s lacked any
evidential basis and were such as no responsible historian would have
made.

Whether Irving has bent of falsified or misrepresented evidence

13.127 I am not persuaded that the criticism of Irving for the way in
which he presented the statistical evidence of Dr Sperling is justified.
I accept the explanation given by Irving why he chose to rely on his
higher figure, namely that the estimate which he gave unofficially in a
letter was the most reliable one. In the light of Irving's assertion
that he had seen evidence which established that Mehnert had informed
Kleiner that his estimate of the number of deaths was 40,000, I am not
prepared to accept the Defendants contention that this was an invention
on Irving's part. The other criticisms of Irving under this head have
already been addressed in the earlier paragraphs of this section of the
judgment.

Irving's conduct in relation to the Goebbels diaries in the Moscow
archive

13.128 I do not consider that the issues as to Irving's conduct in
relation to the Goebbels diaries in the Moscow archive have any bearing
whatsoever on the central issue of Irving's conduct as an historian. But
Irving complains of Lipstadt's account of his conduct and the Defendants
seek to justify those criticisms. I shall therefore deal with this
discrete issue now.

13.129 The two questions raised by this part of the plea of
justification are, firstly, whether Irving broke (or, to use Lipstadt's
word, violated) an agreement with the Moscow archive in regard to his
use of the glass plates on which the Goebbels diaries were inscribed
and, secondly, whether by the manner in which he handled the plates
Irving placed them at risk of damage.

The alleged breach of agreement

13.130 There were two occasions on which Irving removed plates from the
archive: the first was on 10 June 1992, when he wanted to make copies of
the plates; the second was on the following day when he removed two more
plates in order to take them to London for testing. The two occasions
need to be considered separately.

13.131 In relation to the first occasion, as I have summarised in
paragraphs 12.9 and 12.17 above, there was a conversation between Millar
and Tarasov, who telephoned Bondarev to tell him to grant Irving access
to the diaries. Irving stressed (and Millar confirmed) that there was no
agreement as such with the Russians. I accept that there was nothing
more than a single conversation between Millar and Tarasov. But it is
possible to infer an agreement from that conversation and from the
parties' subsequent conduct. In my view it is right to do so.

13.132 Was there an implied term of that inferred agreement that Irving
should not remove the plates from the archive? This question falls to be
answered by reference to the circumstances as they existed in Moscow at
the time. According to Irving, the archive was in a state of chaos. The
Russians were willing to sell archive material if the price was right.
There were no copying facilities in the archive. Irving testified that
it was neither here nor there to the archivist if he removed the plates.
I bear in mind that Irving acknowledged that he removed the plates
"illicitly". But he denied breaching any agreement and I took him to
mean that the removal was illicit in the sense that in normal
circumstances an historian would not remove material from an archive. In
these somewhat unusual circumstances I am not persuaded that Irving
broke an agreement when he removed the plates overnight to have them
copied.

13.133 The second occasion when plates were removed was rather different
in the sense that Irving sought and obtained permission to remove the
plates from the archive. The breach of agreement, according to the
Defendants, arises out of the fact that, having removed the plates from
the archive, Irving then took them to England to have them tested prior
to their return to the archive. Was this a breach of the arrangement?
Irving did not tell the Russians of his intentions. But there is no
evidence that the Russians showed interest or concern what would happen
to the plates whilst they were out of the archive. I have no doubt that
it was throughout Irving's intention to return the plates. I am not
satisfied that a breach of an implied term of the arrangement has been
established by the Defendants.

The alleged risk of damage to the plates

13.134 It is clear to me that, according to what Lipstadt wrote in
Denying the Holocaust and the Summary of the Defendants' case, her
allegation was that the risk of damage arose on the occasion of the
second removal of plates from the archive. According to Lipstadt, it was
the transport of the plates to England and the testing which took place
here, followed by the return journey to Moscow, which gave rise to the
risk of damage. It was this which caused "serious concern in archival
circles" about significant damage to the plates. I do not consider that
the evidence bears out the allegation that any real risk of significant
damage did arise. According to the unchallenged evidence of Irving, the
plates were at all times securely packaged. When they were in possession
of others, I see no reason to suppose that they were at risk. Showing
one plate at a meeting in Munich does not appear to me to give rise to a
risk of damage. When Irving left the plates in Munich, whilst he made an
excursion to Rome, they were left in the hotel safe. In England the
tests were carried out in reputable laboratories belonging to Kodak and
Pilkington. I am satisfied that the physical interference  was minimal
and caused no risk to the integrity of the plates. The emulsion of the
plates was not tested. Irving may well be right in his comment that the
plates were safer whilst in his custody than they were in the archive.
Accordingly I do not accept that the allegation of risk of damage to the
is made out in relation to their removal from the archive to be taken to
England for testing.

13.135 But the Defendants advanced an argument that, on the occasion of
the first removal on 10 June, the plates were put at risk when they were
left during the afternoon hidden behind a wall on some waste ground a
short distance from the archive. I am satisfied that the plates were
carefully wrapped in cardboard and plastic thereby eliminating the risk
of physical damage. So the only risk which might be said to arise was if
someone came across the plates by chance and removed them. Bearing in
mind how far this is removed from the risk of which Lipstadt wrote and
the unlikelihood of a passer-by showing interest in a package consisting
of a couple of pieces of glass, I am not prepared to find that the
allegation of risk to the plates is proved.

Assessment of Irving as an historian

The issue as to Irving's motivation

13.136 After that brief digression to Moscow, I return to the central
issue of Irving's historiography. As I have already held, the passages
in Denying the Holocaust of which Irving complains include as an
important part of their defamatory sting the meaning that he has
deliberately falsified and distorted the historical evidence because he
is an apologist for and a partisan of Hitler and on that account is
intent on exonerating him.

13.137 Irving considers, rightly, that this is a grave imputation
because it reflects on his integrity as an historian. It is an
imputation which the Defendants have sought to justify. Because of the
seriousness of the charge, the standard of proof required is, in
accordance with the approach which I have outlined in paragraph 4.10
above, commensurately higher. It goes without saying that it is an issue
which requires anxious consideration.

13.138 It is necessary to define clearly what is the issue which must be
decided. In the earlier parts of this section of the judgement, I have
made findings adverse to Irving in relation to his historiography and in
relation to his account of Hitler's attitude towards the Jews including
in particular Hitler's complicity in the policy of exterminating them. I
have further made findings, also adverse to Irving, in relation to his
claims about Auschwitz and in relation to his account of the bombing of
Dresden. Irving sought to defend what he has written and said as being a
fair and accurate account of the historical evidence available to him.
In the respects already set out in detail in this judgement, I have in
the main found against him. But the Defendants must, as they accept, go
further if they are to succeed in their plea of justification: they must
establish that the misrepresentation by Irving of the historical record
was deliberate in the sense that Irving was motivated by a desire borne
of his own ideological beliefs to present Hitler in a favourable light.
Irving's case is that, if (which he denied but which I have found) he
has misrepresented the evidence, such misrepresentation was innocent in
the sense that it arose through simple mistake or misapprehension. He
denied the charge of deliberate falsification or perversion of the
evidence.The issue which I must decide is whether the Defendants have
proved that denial to be false.

The relevant considerations

13.139 Issues as to a person's motivation have to be decided by
reference not only to the direct evidence of the person concerned (in
this case Irving) but also by reference to the surrounding circumstances
from which inferences as to his motivation may be drawn. In the present
case such circumstances include the nature and extent of the
misrepresentations of the evidence together with Irving's explanation or
excuse for them. But in my judgment it is relevant to take into account
also such matters as Irving's conduct and attitudes outwith the
immediate context of his work as a professional historian, including the
evidence of his political or ideological beliefs as derived from his
speeches, his diaries and his associates. I also consider that it is
material to have regard to the manner in which he has conducted these
proceedings. These are all matters from which inferences may
legitimately be drawn as to Irving's motivation.

The convergence of the historiographical misrepresentations

13.140 Historians are human: they make mistakes, misread and misconstrue
documents and overlook material evidence. I have found that, in numerous
respects, Irving has misstated historical evidence; adopted positions
which run counter to the weight of the evidence; given credence to
unreliable evidence and disregarded or dismissed credible evidence. It
appears to me that an analysis of those instances may shed light on the
question whether Irving's misrepresentation of the historical evidence
was deliberate.

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