IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Before:

The Hon. Mr. Justice Gray

B E T W E E N:

MR. DAVID IRVING (appered in person).

MR. RICHARD RAMPTON QC (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the first and second Defendants.

MISS HEATHER ROGERS (instructed by Messrs Davenport Lyons) appeared on behalf of the first Defendant, Penguin Books Limited.

MR ANTHONY JULIUS (instructed by Messrs Mishcon de Reya) appeared on behalf of the second Defendant, Deborah Lipstadt.

I direct pursuant to CPR Part 39 P.D. 6.1. that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

Mr. Justice Gray
11 April 2000

Index

Paragraph

I. INTRODUCTION

1.1 A summary of the main issues

1.4 The parties

II. THE WORDS COMPLAINED OF AND THEIR MEANING

2.1 The passages complained of

2.6 The issue of identification

2.9 The issue of interpretation or meaning

III. THE NATURE OF IRVING'S CLAIM FOR DAMAGES

IV. THE DEFENCE OF JUSTIFICATION: AN OVERVIEW

V. JUSTIFICATION: THE DEFENDANTS' HISTORIOGRAPHICAL CRITICISMS OF IRVING'S PORTRAYAL OF HITLER IN PARTICULAR IN REGARD TO HIS ATTITUDE TOWARDS THE JEWISH QUESTION

5.1 Introduction

5.2 The general case for the Defendants

5.9 Irving's general response

5.16 The specific criticisms made by the Defendants of Irving's historiography:

5.17 Hitler's trial in 1924

5.29 Crime statistics for Berlin in 1932

5.37 The events of Kristallnacht in November 1938

5.73 The aftermath of Kristallnacht

5.90 Expulsion of Jews from Berlin in 1941

5.111 Shooting of the Jews in Riga

5.123Hitler's views on the Jewish question

5.151 The timing of the "final solution" to the Jewish problem: the 'Schlegelberger note'

5.170 Goebbels's diary entry for 27 March 1942

5.187 Himmler minute of 22 September 1942

5.194 Himmler's note for his meeting with Hitler on 10 December 1942

5.199 Hitler's meetings with Antonescu and Horthy in April 1943

5.215 The deportation and murder of Jews in Rome in October 1943

5.222 Himmler's speeches on 6 October 1943, 5 and 24 May 1944

5.231 Hitler's speech on 26 May 1944

5.235 Ribbentrop's testimony and evidence from his cell at Nuremberg

5.240 Marie Vaillant-Couturier

5.245 Kurt Aumeier

VI. JUSTIFICATION: EVIDENCE OF THE ATTITUDE OF HITLER TOWARDS THE JEWS AND OF THE EXTENT, IF ANY, OF HIS KNOWLEDGE OF AND RESPONSIBILITY FOR THE EVOLVING POLICY OF EXTERMINATION

6.1 Preamble

6.3 Hitler's anti-semitism

6.10 The policy of shooting of Jews

6.60 The policy of deporting the Jews

6.68 Genesis of gassing programme

6.73 The Defendants' case as to the scale on which Jews were gassed to death at camps excluding Auschwitz and the extent, if any, of Hitler's knowledge of and complicity in the killing

6.106 Irving's response: the scale of the killings by gassing

6.114 Irving's response: Hitler's knowledge of the gassing at the Reinhard Camps

6.133 Irving's response: Hitler's knowledge of and complicity in the gassing programme

VII. AUSCHWITZ

7.1 Description of the camp and overview of the principal issue

7.6 The case for the Defendants in summary

7.8 Irving's case in summary

7.15 The evidence relied on by the Defendants as demonstrating that gas chambers were constructed at Auschwitz and operated there to kill a vast number of Jews:

7.16 Early reports

7.18 Evidence gathered by the investigation under the aegis of the Soviet State Extraordinary Commission

7.22 Evidence gathered by the Polish Central Commission for Investigation of German Crimes in Poland 1945-7

7.23 The Olere drawings

7.28 Eye-witness evidence from camp officials and employees

7.34 Eye-witness evidence from inmates at Auschwitz

7.47 Evidence from the Nuremberg trial

7.50 Evidence from the Eichmann trial

7.52 Evidence from other trials (Kremer; Mulka and others; Dejaco and Ertl)

7.58 Documentary evidence relating to the design and construction of the chambers

7.70 Photographic evidence

7.73 Material evidence found at Auschwitz

7.75 Conclusions to be drawn from the evidence, according to The Defendants' experts

7.77 Irving's reasons for rejecting the evidence relied on by the Defendants as to the existence at Auschwitz of gaschambers for killing Jews:

7.77 Irving as expert witness at the trial of Zundel

7.79 The impact of the Leuchter Report

7.90 Replication of Leuchter's findings

7.91 The absence of chimneys protruding through of morgue 1 of crematorium 2

7.95 The reason for the alterations to crematorium 2: fumigation or alternatively air-raid shelter

7.98 The purpose of the supplies of Zyklon-B

7.100 The logistical impossibility of extermination on the scale contended for by the Defendants

7.102 Irving's investigation of the documentary evidence

7.109 Irving's response to the eye-witness evidence

7.113 The Defendants' arguments in rebuttal:

7.113 The Defendants' critique of the Leuchter Report

7.118 The Defendants' case as to the absence of signs of chimneys in the roof of Leichenkeller 1

7.121 The redesign of crematorium 2

7.123 The quantity of Zyklon-B required

7.124 The Defendants' response to Irving's logistical argument

7.127 The Defendants' response to Irving's argument in relation to the documentary evidence

VIII. JUSTIFICATION: THE CLAIM THAT IRVING IS A "HOLOCAUST DENIER"

8.1 What is meant by the term "Holocaust denier"

8.6 The question whether the statements made by Irving qualify him as a "Holocaust denier" in the above sens

8.15 The oral and written statements made by Irving which are relied on by the Defendants for their contention that he is a Holocaust denier and the evidence relied on by the Defendants for their assertion that Irving's denials are false:

8.17 The existence of gas chambers at Auschwitz or elsewhere

8.19 The existence of a systematic programme or policy for killing Jews

8.20 The numbers of Jews killed

8.29 The assertion that the gas chambers were a propaganda lie invented by the British

IX. JUSTIFICATION: THE ALLEGATION THAT IRVING IS AN ANTI-SEMITE AND A RACIST

9.1 Relevance of the allegation

9.4 The material relied on by the Defendants

9.8 Irving's denial that he is anti-semitic or a racist:

9.9 Anti-semitism

9.19 Racism

X. JUSTIFICATION: THE CLAIM THAT IRVING ASSOCIATES WITH RIGHT WING EXTREMISTS

10.1 Introductory

10.4 Case for the Defendants

10.26 Irving's response

XI. JUSTIFICATION: THE BOMBING OF DRESDEN

11.1 Introduction

11.5 The Defendants' criticisms of Irving's account of the bombing

11.6 Numbers killed – Irving's claims

11.9 The Defendants' claim that Irving relied on forged evidence

11.29 Irving's case as to use of TB47

11.41 The claim that Irving attached credence to unreliable evidence

11.45 The allegation that Irving has bent reliable evidence and falsified statistics

11.48 The allegation that Irving suppressed or failed to take account of reliable evidence

11.54 The allegation that Irving has misrepresented evidence

XII. JUSTIFICATION: IRVING'S CONDUCT IN RELATION TO THE GOEBBELS DIARIES IN THE MOSCOW ARCHIVE

12.1 Introduction

12.4 The claim that Irving broke an agreement with the Moscow Archive and risked damage to the glass plates

12.4 The allegation as formulated in the Defendants' statements of case

12.8 The evidence relied on by the Defendants for the allegation of breach of an agreement

12.12 The evidence relied on by the Defendants for the risk of damage to the plates

12.15 Irving's case that there was no breach of agreement

12.19 Irving's denial that the plates were put at risk of damage

XIII. FINDINGS ON JUSTIFICATION

13.1 Scheme of this section of the judgment

13.7 The allegation that Irving has falsified and misrepresented the Historical evidence

13.7 Irving the historian

13.9 The specific historiographical criticisms of Irving

13.52 Evidence of Hitler's attitude towards the Jews and the extent, if any, of his knowledge of and responsibility for the evolving policy of extermination

13.68 Auschwitz

13.92 Whether Irving is a "Holocaust denier"

13.100 Whether Irving is an anti-semite and a racist

13.109 Irving's alleged association with right-wing extremists

13.116 Irving's accounts of the bombing of Dresden

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

13.136 Assessment of Irving as an historian

13.164 Finding in relation to the defence of justification

XIV. VERDICT