The Nizkor Project: Remembering the Holocaust (Shoah)

David Irving, Libel & Lying on Oath

[The Nizkor Project's Ken McVay read the following paper before British audiences in London, Cambridge, Oxford, Southampton and Coventry between May 7th, 1999 and May 14th, 1999 as his response to David Irving's threat of a libel suit.]

On February 15, 1999, during a conversation about Holocaust denial on CNN's chat service, I included text which stated that British author David Irving was a man who had lied under oath.

Mr. Irving took exception to my comments, and sent me the following words[1]:

"Since it is possible you are the victim of a misunderstanding, would you kindly identify to me precisely on what occasions you maintain I `lied under oath.' These are very serious and cowardly allegations indeed, particularly where the victim has no opportunity of defending himself.

"It is important that you should realise the consequences of uttering such wild allegations within the jurisidiction of courts where the laws of libel are taken seriously."

Given Mr. Irving's charge, and the threat of a libel suit, I find it appropriate to explore the basis for the claim that Mr. Irving has lied under oath.

In 1992, Mr. Irving entered Canada as a visitor at Niagara Falls on October 26, 1992 and subsequently became the subject of an immigration inquiry at Vancouver, British Columbia on October 30, 1992. As a result, he was issued a departure notice to leave Canada on or before midnight, November 01, 1992.

During a hearing before Immigration Adjudicator Thompson, Mr. Irving asserted that he left Canada on October 30, 1992, at Blaine, Washington and reentered Canada later that same day.

In the introduction to the Immigration Adjudicator's report[2], Adjudicator Kenneth Thompson wrote:

"This purported departure is pivotal, since if it is factually accurate, it would mean that the action taken against you by immigration officials in Niagara Falls on November 01, 1992 was based on erroneous facts; namely, that you were a person attempting to leave Canada pursuant to a yet unexecuted departure notice.

"If, as you claim, you did in fact depart and then reenter Canada at the Washington/B.C. border crossing then it might be said that you had already satisfied the terms of your departure notice and therefore could not be a person referred to in paragraph 14(1)(C) of the Act. However, the question as to whether you did or did not leave is an issue of fact for this tribunal to determine."

After hearing testimony from witnesses, including that of Mr. Irving, Adjudicator Thompson presented his findings[3], which included the following:

(On November 1, 1992, Mr. Irving told an immigration officer, who had shown Mr. Irving his identification and his badge, that he had remained in Canada continuously since his arrest in Victoria, British Columbia.) Thompson added:

"In assessing your evidence as a whole, you have been unable to persuade me that you did leave Canada on October 30, 1992. I have a great deal of difficulty accepting your evidence. It did it not have the ring of truth to it, but observing you and listening to your testimony, I could not help but get the impression that you were at times reciting a rehearsed script....

"When viewed as a whole this evidence can lead to only one conclusion; the event was a total fabrication and never took place. I can only speculate that you and your supporters concocted your story to garner further publicity and prolong your stay in Canada, both of which you have done with some success."

On May 3, 1994, the Australian Minister for Immigration denied Mr. Irving the right to enter Australia, finding that he did not meet the "good character requirements" of Australian law. Mr. Irving appealed this decision, and, in August of 1995, the Federal Court of Australia released its Judgment[4].

Within that Judgment, Justice Carr made reference to the Canadian Adjudicator's report as part of his finding of factual background. In addition, he mentioned a 1994 decision by a British judge, who is quoted as saying:

"I have not found this an easy decision because I have made it clear more than once during the course of today - and I adhere to the conclusions that I have been forming and expressing - that I am afraid I do not accept the explanations appearing in his affidavit, that is to say, his explanation to me that he had not the faintest idea that any of this was going on - that includes that he had not the faintest idea that the German judgment was even registered in this country; I am afraid I do not accept that for one moment."

In Justice Carr's decision, he makes the following comments[5] regarding the immigration hearing in Canada:

"Mr. Bates submitted that even if those comments indicated that there was perhaps a defect in Mr. Irving's character on that one occasion because apparently he told a lie, that would not on a reasonable basis be a ground for excluding Mr. Irving from Australia. "

Mr. Bates, I might add, is Mr. Irving's own counsel!

Carr also said:

"The adverse findings were, in essence, that Mr. Irving's account of his short visit to the United States was a total fabrication and never took place i.e. that Mr. Irving had lied on oath to the Immigration Adjudicator."

With respect to the British decision, Justice Carr said [6]

"A finding that a person has deliberately given false evidence to a court of law is clearly, in my opinion, capable of being relevant to a decision whether that person is of good character."


"...Mr. Irving has been found to ... have lied on oath to a quasi-judical tribunal and more recently to the High Court of Justice in England..."[7]


in my view the conviction and imprisonment for contempt of court and the subsequent false affidavit evidence to the same Court..."[8]


"I refer to the findings that Mr. Irving had given false evidence to Immigration Adjudicator Thompson in Canada and to the High Court of Justice in London..."[9]

Mr. Irving appealed Carr's decision, resulting in these findings by the Federal Court of Australia in July 1996: [10]

Justice Davies:[11]

"In my opinion, all these matters, the offences against the laws, the conviction, the contempt of court, the orders for deportation and the findings of lack of veracity, were matters which the Minister was entitled to take into account in his assessment whether or not Mr Irving was a person of "good character".

Justice Nicholson:[12]

"The findings of Immigration Adjudicator Thompson were that the appellant lied on oath. ...He was found in contempt of court in the High Court of Justice in London and imprisoned. Later he was found to be a person who deliberately gave false evidence."

Given the findings of Adudicator Thompson, the British judge, and three different Australian judges, I leave you with Mr. Irving's words to me:

"It is important that you should realise the consequences of uttering such wild allegations within the jurisidiction of courts where the laws of libel are taken seriously."

Mr. Irving may consider the comments of Adjudicator Thompson and four respected jurists libelous and "wild allegations," but I do not.

David Irving invited me to come to England when he wrote:

I do hope that you will now come and repeat your allegations within the jurisdiction of the UK courts, or are you too much of a coward to do so? Is the Internet your only "field of valour". Willing to wound, but afraid to strike. Get a life, Mr McVay... get a life. I am here, Mr. Irving. Where the hell are you?


6. Ibid.
8. Ibid.

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