12.1 In 1992 Irving was told by Elke Frohlich, the widow of Professor Broszat, who edited fragments of the diaries of Goebbels, of the existence in Moscow of the long lost diaries themselves. They were, she said, in the form of microfiches recorded on hundreds of glass plates. She suggested to Irving that he might be able to buy the plates, since they were not listed on the archive inventories. She advised Irving to raise the necessary money She gave him the name of the director of the archive. Irving approached him at the end of May 1992.
12.2 On 26 May 1992 Irving contacted the Sunday Times, whose editor at that time was Andrew Neil, with a view to making an agreement about the diaries. Neil expressed serious misgivings about their authenticity. (He had good reason for his caution, since the Sunday Times had recently had the misfortune to publish Hitler's diaries which turned out to be forgeries). Neil, however, agreed to provide the finance needed for a preliminary visit to Moscow by Irving. He travelled there on 6 June 1992. He was introduced by a Sunday Times journalist based in Moscow, Peter Millar, to Vladimir Taraso, the Head of the Department of International Contacts at Rosarchiv. Irving, having inspected the diaries, was satisfied of their genuineness. On his return to London, Irving entered into an agreement with the Sunday Times whereby the newspaper would pay him £75,000 in return for his translation of parts of the diaries. Irving returned to Moscow on 28 June 1992 and remained there working on the diaries until 4 July. The diaries were stored on 1,600 glass plates, each glass plate holding about 45 pages of diary.
12.3 In Denying the Holocaust, Lipstadt wrote in a footnote:
"The Russian archives granted Irving permission to copy two microfiche plates, each of which held about forty-five pages of the diaries. Irving immediately violated his agreement, took many plates, transported them abroad, and had them copied without archival permission. There is serious concern in archival circles that he may have significantly damaged the plates when he did so, rendering them of limited use to subsequent researchers".
Irving complains that in that passage Lipstadt accused him of violating an agreement with the Russian archives in that he took and copied many plates without permission causing significant damage them and rendering them of limited use to subsequent researchers. Readers would infer that he is a person unfit to be allowed access to archival collections.
The claim that Irving broke an agreement with the Moscow archive and risked damage to the glass plates
The allegation as formulated in the Defendants' statements of case
12.4 In their original statement of case the Defendants alleged no more than that there were grounds to suspect that Irving had removed certain microfiches of Goebbels' diaries from the Moscow archive without permission. Subsequently, in their Summary of Case, the Defendants revised their case to allege that Irving broke an agreement he had made with the Moscow archive by (without permission) removing from the archive glass plates on which the diaries were recorded; having copies made of those plates and transporting two plates to London, where they were subjected to forensic tests. The Defendants allege that Irving's conduct gave rise to a significant risk that the plates might have been damaged, rendering them of limited use to subsequent researchers. They maintain that Irving's conduct was unbecoming of a reputable historian.
12.5 In the outline of their Statement of Case the Defendants alleged that, in the course of his first visit to Moscow on the 10 and/or 11 June, Irving, acting without permission and without the knowledge of Tarasov (or any other Rosarchiv official) took three glass microfiche plates, including what he considered to be two of the most important plates, and gave them to Peter Millar so that they could be passed to the Sunday Times Moscow photographer to make enlarged prints. The Defendants allege that Irving had prints made and then had the plates forensically tested in London. The tests were completed by 2 July 1992, at which time the plates were returned to Moscow by another journalist. The tests which had been carried out in England risked damaging the fragile plates, according to the Defendants.
12.6 The Defendants alleged further that on 19 June 1992 Irving had requested permission from Tarasov to take plates out of the archive for a short period in order to carry out tests. Tarasov gave permission for two plates to be taken out of the archive. According to the Defendants' case, he was unaware that any plates had been removed earlier. When he returned to the Moscow archive in late June, Irving took more glass plates and gave them to the Sunday Times photographer to make prints.
12.7 The gravamen of the case stated by the Defendants is that Irving abused the trust placed in him by Tarasov and violated his agreement with him. They allege also that, by covertly removing the glass plates and handing them over to a journalist for testing to be carried out abroad, Irving was guilty of a further serious breach of trust which gave rise to a significant risk that the plates might suffer damage.
The evidence relied on by the Defendants for the allegation of breach of an agreement
12.8 Although the Defendants had served written statements accompanied by notices under the Civil Evidence Act, in the result they called no evidence on this part of their plea of justification. They relied on the evidence given by and on behalf of Irving to establish their case.
12.9 In relation to the first issue, namely whether Irving violated an agreement with the Moscow archive, the Defendants' case, elicited from Irving and Millar in cross-examination, can be summarised as follows: Irving was keen to gain access to the diaries because (apart from the money and the kudos) he wanted the material for his biography of Goebbels. It is clear from his diary that on his first visit to Moscow Tarasov, on behalf of the archive, gave him access to the material, to read it and perhaps to copy some pages.
12.10 Irving's diary entry for the following day, 10 June 1992, records that he "illicitly borrowed the fiche we had found covering the weeks before the war broke out and took it out of the archives at lunch for copying. Irving recorded that he tucked the envelope with the glass plats into a hiding place before re-entering the archive. At the end of the afternoon, Irving took them to the Sunday Times photographer, who printed copies to be shown to Neil in London. The plates were returned to the archive the following morning. The defendants allege that this amounted to a breach of the agreement Irving had made with Tarasov.
12.11 On 11 June 1992, again according to Irving's diary, he removed by the same means two further plates from the archive. These plates were taken by Irving to Munich here they wer left in a safe (whilst Irving travelled to Rome). On his return he took them to London, where they were tested at Pilkington's laboratories. They were taken back to Moscow by a Sunday Times journalist on 2 July 1992 and replaced in the archive on the following day. This, according to the Defendants, constituted a further breach of agreement. Irving conceded that an historian would normally require the agreement of an archive before removing material. Irving had no such agreement. The most that Tarasov had originally agreed was that Irving could read the plates and perhaps copy them. On the second visit Tarasov agreed that Irving might remove two plates but that was in order to copy them. Millar, the Sunday Times journalist who accompanied Irving, acknowledged in evidence that Irving knew that he should not be taking the plates out of the archive and expressed his disapproval to Irving because doing so might jeopardise the chances of continuing access to the plates. Irving agreed that had not obtained permission to take the plates back to England.
The evidence relied on by the Defendants for the risk of damage to the plates
12.12 The risk of damage arose, according to the Defendants, in three ways. Firstly, when during Irving's first visit the plates were removed from the archive, there was risk to the plates when they were left in a hiding place. According to the evidence, the plates were left on waste ground for the whole afternoon. There was a risk of someone taking them or of damage if it rained.
12.13 The plates were exposed to further risk by reason of their being handled and, on the second, visit by their being taken via Munich to London and back. Even allowing that Irving took great care of them the plates were at one time or another in the hands of three Sunday Times employees.
12.14 The third way in which the plates were put at significant risk arose out of the testing of the plates in London. A small fragment was cut off one plate. Irving was not on hand when the testing was carried out and so was not in a position to ensure that the plates came to no harm.
Irving's case that there was no breach of agreement
12.15 According to Irving, the glass plates on which the diaries were recorded has been neglected by the Russians. They were in bad condition. Material from the archive was being sold by the Russians. Irving's major concern was to gain access to the diaries before the Germans. If the Germans were to gain access first, Irving was concerned that the diaries would vanish for a considerable period.
12.16 Irving stressed (and Millar) confirmed that there was no agreement with the Russians. On 9 June 1992 Millar spoke to Tarasov, who telephoned the curator of the archive, Bondarev and told him to permit Irving to have access to the plates and to work on them. The arrangement was a verbal one. Millar testified that there was no restriction on access.
12.17 On the first occasion when plates were removed from the archive, Irving agreed that he did not seek permission to do so. He did not tell the Russians what he was intending to do. His concern was to copy the plates before the archive was "sealed", that is, before he lost access to the plates by reason of some action by his German competitors. Irving gave evidence that he had felt that the situation required desperate remedies. He agreed in cross-examination that he acted "illicitly" and felt ashamed about his conduct. Millar disapproved of what he was doing because he (Millar) feared that future access to the diaries might be jeopardised. But there were no means of copying the diaries in the archive. Irving acknowledged that it could have been understood that the plates should not be taken out of the archive. But he felt he was providing a valuable service in making sure that the contents of the diaries would be available to historians. He disagreed that there was any breach of agreement on his part. It was "neither here nor there" to the archivist if he removed the plates.
12.18 On the second occasion when he removed plates from the archive, Irving did so in order to have the plates tested, as his contract with the Sunday Times required him to do. On this occasion he did seek and obtain permission from the Russians to remove the plates. But he did not tell them of his intention to take them out of the country for testing. Again Irving accepted in cross-examination that he had acted "illicitly". But he said that he assumed he had permission to "borrow" the plates. Irving denied any breach of agreement.
Irving's denial that the plates were put at risk of damage
12.19 In relation to the first occasion on which he removed plates from the archive, Irving testified that he took them out of the archive at lunchtime. He said that the plates were carefully packaged in plastic and cardboard. He hid them during the afternoon on waste ground about 100 yards from the Institute. Apart from that, there was no risk of damage to the plates. The plates were returned the next morning, after they had been copied.
12.20 On the second occasion when plates were removed, Irving denied that at any stage there was any risk of damage to them. At all times when the plates were en route they were safely packed. He took them to Munich, where he left them in a safe whilst he travelled to Rome and back. Irving claimed that they were safer there than they had been in the archive. He then took them to England. The testing did not involve any risk of damage. The plates were returned to the archive after three weeks.
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