Appeal: Skeleton Argument of the Claimant (long) by Adrian Davies

The Claimant

1.The Claimant, Mr David John Cawdell Irving (“Irving”) seeks permission to appeal against two orders of Gray J, the first dated 11th April 2000, and the second dated 5th May 2000.

2.By his order of 11th April 2000, Gray J ordered inter alia that judgment should be for the Defendants, Penguin Books Limited, (“Penguin”) and Professor Deborah Lipstadt (“Lipstadt”), that the Claimant should be refused permission to appeal, and that the Claimant should pay the costs of the First and Second Defendants, to be the subject of a detailed assessment.

3.By his order of 5th May 2000, Gray J ordered inter aliathat, by four o’clock on Friday 16th June, 2000, the Claimant should pay the sum of £150,000 on account of costs to the First and Second Defendants, pending the detailed assessment directed by his order of 11th April 2000.

4.References in this skeleton argument to paragraphs by number are to the paragraphs so numbered in Gray J’s judgment, save where otherwise stated.

Background and Dramatis Personae

5.The background to the action and its Dramatis Personae are so well known that little need be said about them, save that Irving does wish to draw the Court of Appeal’s attention to the intimidating atmosphere of hysterical press hostility in which the trial took place, whipped up in particular by The Guardian, which is a defendant in separate proceedings brought by Irving against one Gitta Sereny and Guardian Newspaper Limited. Despite repeated entreaties from Irving, Gray J did nothing to restrain these journalistic excesses.

The issues as pleaded

6.There is a very fair summary by Gray J at paragraphs 1.1 to 2.16 of his judgment, which Irving adopts, subject only to one point on paragraph 2.16, set out at paragraph 7 below. Irving also adopts Gray J’s words at 13.1:–

“The charges levelled at Irving’s historiography appear to me to lie at the heart of what Lipstadt wrote about him in Denying the Holocaust.”

i.e., not charges of “racism” (whatever that might be) or anti-Semitism, neither of which (as Gray J rightly observed) had been alleged by Lipstadt in Denying the Holocaust, nor pleaded by Irving as a libel upon him by his Statement of Claim, nor yet pleaded or relied upon by way of particulars of justification in either Defendant’s Defence.

7.While Irving generally adopts Gray J’s summary, he submits that the natural and ordinary meaning of Lipstadt’s words at p. 213 of Denying the Holocaust, viz. “Nolte, echoing David Irving, argues that the Nazi ‘internment’ of Jews was justified because of Chaim Weizmann’s September 1939 declaration that the Jews of the world would fight Nazism” is that Irving approves of the imprisonment and (by the popular innuendo apparent from the use of quotation marks around the word ‘internment’) the killing of Jews in concentration camps. To the extent necessary, Irving will seek leave to amend his Statement of Claim to plead this matter more fully.

The grounds of appeal

8.The Claimant seeks permission to appeal on the grounds (1) that the findings of justification in respect of the defamatory charges on which the Defendants succeeded were against the weight of the evidence, (2) that the judge erred in law in admitting the evidence of Evans as to the construction of the words “Holocaust denier,” (3) that the judge erred in law in admitting the evidence of Van Pelt (i) except in the field of cultural history, so that Van Pelt should not have been permitted to give evidence (ii) as to the architecture of Auschwitz, and/or (iii) as to (a) chemistry and (b) the technology of crematoria, and (4) in applying section 5 of the Defamation Act, 1952 in respect of the libels on which the Defendants offered no evidence, or which the Defendants wholly failed to justify.

9.When refusing permission to appeal his order of 11th April 2000, Gray J observed that “essentially [the] case turned on questions of fact, the most important of which entailed assessing the Claimant’s credibility. Public interest can be [a] reason for granting permission, but that is a question best left to the C.A.”

10.Undoubtedly this case is of the greatest public interest. Gray J observed after giving judgment that in his opinion it was self evident and beyond any possible dispute that this was a matter of public interest, and gestured to the packed court room. As is well known, the trial at first instance attracted worldwide publicity. The issues canvassed were plainly of the greatest importance for the interpretation of the political and military history of the twentieth century. Irving relies on this ground in seeking permission to appeal. He contends no less strongly that Gray J erred seriously in weighing the evidence, so that his findings are wrong and unjust.

11.The basis on. which Gray J assessed the Claimant’s credibility was not an adverse general estimate of Irving, or his demeanour as a witness, or his general character. Indeed, Gray J makes the most flattering observations about Irving as a military historian at 13.7. Irving gratefully adopts all that Gray J. says in 13.7, and relies upon it in support of his submission at paragraph 16 below.

12.Neither Defendant gave oral evidence, nor did they call any witnesses of fact, but only experts, to whom the Claimant returns at paragraphs 17 to 21 below. It accordingly follows that Gray J was certainly not impressed by the Defendants’ demeanour, as Lipstadt took good care not to have her witness statement and her affidavits tested in cross-examination.

The Law

13.Gray J’s findings are based upon adverse inferences arising out of his assessment of the weight of the real, expert and documentary evidence. Gray J found that Irving could not honestly and reasonably have come to his stated conclusions, faced with the historical record taken as a whole.

14.On such findings, the correct approach is laid down in Lord Reid’s speech in Benmax v. Austin Motor Co. Ltd [1958] A.C. 370 at 376:–

“… in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

15.See also per Baggallay J.A. in The Glannibanta> (187-6) 1 P.D. 283 at 287 to 288:–

“Now we feel. . . the great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are. . . material elements in the consideration of the truthfulness of their statements. But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect.”

16.It follows, it is submitted, that permission to appeal should be granted if it appears to the Court of Appeal likely that Gray J may have drawn the wrong inferences from the real, documentary and expert evidence.

The weight to be attributed to the evidence of the Defendants’ experts

17.“The duties and responsibilities of expert witnesses in civil cases” (per Cresswell J) were, it is respectfully submitted, well described by Cresswell J in The Ikarian Reefer [1993] 2 Lloyd’s Rep. 68 at 81 to 82. This part of Cresswell J’s judgment was by no means disapproved when the C.A. reversed him at [1995] 1 Lloyd’s Rep. 455. They “include the following”:–

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
2. An expert witness should provide independent assistance to the Court by way of objective, unbiassed opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.”

18.Gray J describes the Defendants’ five expert witnesses and their purported areas of expertise at 4.17. It should be borne in mind that the Defendants had leave to call six historians and six social scientists as expert witnesses. They did not have (because they had not sought) permission to call experts in other disciplines, such as architecture, chemistry, or the technology of gas chambers and crematoria.

19.Irving’s case is that all five were motivated by ideological bias, and that Evans in particular and Longerich to a lesser extent were demonstrably motivated by personal hatred, so transgressing against Cresswell J’s principles 1 and 2, and that Evans offended gravely against 3 in relation to the Schlegelberger memorandum (para. 55 below) and the Bartz telex (para. 171 below). Irving contended throughout that Van Pelt is doubtfully an expert in any relevant discipline at all. On the most generous view of Van Pelt’s expertise, he gave crucial evidence on matters in respect of which he did not even purport to be an expert, contrary to 4, namely the chemistry of fumigation and killing by gas chamber, and the fuel consumption of crematoria.

20.Further, the fees which the Defendants paid to these experts for giving their evidence were so grotesquely large (Gray J was shocked by the figures on 5th May 2000, especially the payment to Funke, who made a very short appearance indeed at trial) that they could not possibly have given evidence “uninfluenced as to form or content by the exigencies of litigation”.

21.The experts’ fees were: Van Pelt £109,244.24, Funke £92,557.94, Longerich £76,195.25, Evans £70,181, and Browning a (relatively) modest £27,632.12.

Subject Matter of Expert Evidence

22.It is an important part of Irving’s application for permission to appeal to challenge how far expert evidence is admissible at all on the meaning of the words “Holocaust denier”.

23. At 13.92 Gray J said; “I accept the evidence of Evans, which was not challenged by Irving, that what characterises a ‘Holocaust denier’, in the sense in which that term is used by Lipstadt in Denying the Holocaust, is that he or she holds or expresses some or all of the views which I have listed in paragraph 8.5 above.”

24.Irving went through each of Evans’s criteria in turn, asking Evans whether, to be a Holocaust denier, he merely had to satisfy one of these criteria, or all four. Evans never answered this question properly. Irving contends that, as a matter of fact, he certainly does not satisfy Evans’s second and third criteria, which were not established against him on the evidence. See para. 47 below.

25.Moreover, as a matter of law, Gray J should not have received expert evidence on the meaning of ordinary English words; see in this respect Hodgkinson on Expert Evidence> at p.155:–

“… it may appear to be of benefit to call an expert witness as to meaning, or, as is more likely, to ask an expert, already giving evidence as to other matters in the case, to express a view on meaning in the light of his experience and skill. Save in limited arid specific circumstances, though, an expert’s views are inadmissible and should not be canvassed.”

26.As to the limited and specific exceptions, see Lovell and Christmas v. Wall (1911) 104 L.T. 85 per Cozens-Hardy M.R.:–

“If a document is in a foreign language, you may have an interpreter. If it contains technical terms, an expert may explain them. If, according to the custom of a trade or the usage of the market, a word has acquired a secondary meaning, evidence may be given to prove it.”

27. For the rule, see per Fry J. (a judge very learned in matters of construction.) in Holt & Co. v. Collyer (1881) 16 Ch. D. 718 at 720, when rejecting evidence as to the meaning of a word:–

“In my view the principle upon which words are to be construed in instruments is very plain. Where there is a popular and common word used in an instrument, that word must be construed prima facie in its popular and common sense. If it is a word of a technical or legal character, it must be construed according to its technical or legal meaning. If it is a word which is of a technical and scientific character, then it must be construed according to that which is its primary meaning, namely its technical or legal meaning. But before you can give evidence of the secondary meaning of a word, you must satisfy the Court from the instrument itself or from the circumstances of the case that the word ought to be construed, not in its popular or primary signification, but according to its secondary intention.”

28. The effect of receiving Evans’s evidence on this crucial issue was to allow Evans rather than the Court to set the parameters within which the Defendants would have to justify the pleaded libels. It is submitted (1) that Gray J. erred in law in accepting Evans as an expert on the meaning of two ordinary English words, (2) that he should have reached his own view what “Holocaust denier” means, unassisted by expert evidence, and (3) that since he failed to do so, the Court of Appeal ought now to do so instead.

The meaning(s) of German words

29.This is a proper subject for evidence. It is submitted that in accordance with Fry J’s criteria of construction, such words must be construed prima facie in their popular and common sense. If, for example, the Defendants suggest that the word abtransportiert should be translated in some other sense than deported”, which is its popular and common sense, it is for them to prove that.

Van Pelt’s qualifications as an expert

30.On Day 9 (25th January 2000) the following somewhat extraordinary exchange took place between Irving and Van Pelt:

“Q. You studied at the University of Leiden, am I correct?

“A: Yes, I did.

“Q: And you are now Professor of the History of Architecture at the University of Waterloo in Toronto?

“A: No. The issue of my appointment is kind of confusing. I am in the Department of Architecture and hence I am officially a Professor of Architecture. Your title as Professor depends on the department you are in. However, I teach in what we call the Cultural History stream, so normally, in order to prevent confusion in ordinary usage, I would call myself Professor of Cultural History because, both in my background, my PhD and my teaching duties, I teach cultural history in the architectural school. However, when I was advised about the way I had to create my curriculum vitae for this proceeding, I was told that I had been to be extremely precise in the legal sense of what I was, so again I put in Professor of Architecture.

“Mr Justice Gray: So you are really a cultural historian?

“A: I am really a cultural historian.

“Mr Irving: This is a point of some substance, my Lord. We need to know precisely what your qualifications are to offer your expertise to the court. I do not mean this in the least sense in a derogatory manner because, as I say, I have read both your book and your report with the utmost interest. However, we need to know what your areas of expertise actually are. In Britain, of course, we have the Royal Institute of British Architects. Are you familiar with the fact that it is illegal in England to call yourself an architect unless you are registered with the RIBA?

“A: That is in most countries like that, yes, I know.

“Q: In Holland, the equivalent is the Bond van Nederlandse Architecten, am I correct? I am sorry about my pronunciation.

“A: Yes, Bond van Nederlandse Architecten.

“Q : Which is the rough equivalent of the RIBA?

“A: Yes.

“Q: Am I right in saying that you are not registered with the Bond van Nederlandse Architecten?

“A: I have never had any reason to do so, since I never studied in an architectural school.

“Q: So you cannot legally pretend to be an architect, if I can put it like that?

“A: No, I could be prosecuted.

“Q: You could be prosecuted?

“A: Yes.

“Q: Rather like Mr Leuchter was prosecuted in Massachusetts for pretending to be an engineer?

“A: Yes.

“Q: You can probably see the thrust of this particular question. In other words, your expertise, as an architect, is the same as Mr Leuchter’s expertise was an engineer?

“A: I do not really know. I have been teaching in architecture school now since 1984. I have taught design courses, specially in small architecture schools one needs to chip in wherever one does. I have been on architectural juries and quick sessions, mostly on a weekly, bi-weekly, kind of frequency. I did. . .

“Q: You have never learned architecture? You have never studied architecture at university? You have never taken a degree in architecture?

“A: I do not have a degree in it, but I have been confronted with the architectural practice and, apart from that, I have worked for various architects, one of them, Sir Dennis Leston, here in England, when he was designing the Synagogue in Jerusalem. I have worked with Jack Diamond in Toronto. So I have been in architectural offices very often and other practices.

“Q: And, of course, you are now advising the present Auschwitz authorities on the reconstruction, if I can put it like that, of the Auschwitz site?

“A: I was advising them, yes.”

31.Even if Van Pelt has sufficient practical experience of architecture to be classified as an expert in that field, which is certainly not conceded, it is strongly submitted that Gray J erred seriously in law in admitting Van Pelt’s evidence on that subject, since the Defendants adduced his evidence as a historian not an architect. On no view should Gray J have heard Van Pelt on the chemistry of fumigation and gas chambers (7.123) or the technology of crematoria (7.124). Van Pelt knows nothing whatsoever about these subjects.

Section 5 of the Defamation Act, 1952

32.Gray J further states (rightly, it is submitted) at 13.167 that to invoke section 5 of the Defamation Act, 1952 in respect of any libels which they fail to justify, the Defendants have to prove that such libels do not materially injure Irving’s reputation compared with the defamatory charges which they succeed in justifying. Gray J accepted that the Defendants succeeded on section 5.

33.One of the three defamatory charges which the Defendants wholly failed to justify was “Lipstadt’s claim that Irving was scheduled to speak at an anti-Zionist conference in Sweden in 1992, which was also to-be attended by various representatives of terrorist organisations such as Hezbollah and Hamas.” (Per Gray J at 13.166).

34.It is submitted that this libel is so very grave that, as a matter of law, section 5 does not avail the Defendants, even if Irving fails on every other issue.

The Allegation that Irving is an “Extremist”

35.It is submitted that, as a matter of law, it is not sufficient to plead by way of particulars of justification that someone is an “extremist,” let alone to introduce this point in the course of argument without pleading it sufficiently or at all.

36.Greer LJ said in Talley v. Fry [1930] 1 KB 467 at 479:–

“Words are not defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right-thinking men generally. To write or say of a man something that will disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right-thinking man is not actionable within the law of defamation.”

37.A statement is not defamatory simply because it is untrue, so to suggest that someone takes a particular political position is not defamatory per se, even if it is completely untrue. See per Street J. in Slatyer v. Daily Telegraph [1907} 7 NSWSR 488 at 498, a New South Wales case, which is generally accepted as good law in England, and is cited with evident approval at note 90 to para. 2.19 of Gatley.

38.That, it is submitted, is the case, however “extreme” the position in question may be. True it is that there are cases (they are to be found at note 88 to para. 2.19 of Gatley) in which it has been held that it is defamatory to say of a man that he is a Communist, but they are best explained on the basis that the libels complained of carried the implication that the plaintiff was a traitor in the pay of a foreign power, or that he advocated overthrowing the state by violence.

39.Thus Devlin LJ said in Kantorowicz v Cookridge, The Times, 10 October 1960, at the height of the Cold War, and at a time when the full extent of Stalin’s crimes was already well known, that it would not in all circumstances be defamatory of a man to say that he was a Communist.

40.An extremist is merely a man whose ideas depart radically from the prevailing climate of opinion at a particular time. Anyone who suggested that the suffrage should be extended to the working classes would have been considered an extremist in the climate of opinion which held sway in 1800; anyone who suggested that the suffrage should be extended to women would have been considered an extremist in the climate of opinion which held sway in 1900. These were never morally reprehensible positions. Thus to prove that Irving associates with noníviolent “extremists” ought to avail the Defendants nothing.

41.The crucial distinction in this case, it is submitted, is between libels SA and 8B at paras. 44 and 45 below.

42.The principal issues on appeal in relation to justification, numbered by reference to the importance which Irving attributes to them, and not chronologically, are Irving’s treatment of (1) Hitler’s personal knowledge of the scale and scope of Nazi atrocities against the Jews during the Second Word War (“WWII”) generally, (2) Auschwitz in particular, and (3) the events of Kristallnacht. Irving’s case is that (1) and (2) are crucial, while (3) is important.

43.The Defendants additionally sought (successfully) to justify by reference to Irving’s treatment of (4) Hitler’s 1924 trial following the unsuccessful Beer Hall putsch and (5) the crime statistics for Berlin in 1932. Irving contends that (4) and (5) are of secondary importance.

44.The Defendants further succeeded on their plea of justification by reference to (6) Irving’s account of the bombing of Dresden in February, 1945, (7) Irving’s anti-Semitism and racism, and (8A) the claim that Irving associates with right wing extremists.

45.The Defendants did not attempt to justify Lipstadt’s allegation (8B) that Irving associates with violent extremists, and failed to justify Lipstadt’s allegations that Irving (9) works in his office under a portrait of Hitler, (10) had damaged the historic glass microfiches of the Goebbels diaries in the Moscow archives, and (11) had broken an agreement with the director of the Moscow archives.

46.As to (7) and (8A): on the Defendants’ case as pleaded, (7) is prejudicial and irrelevant, or goes at most to Irving’s motive for treating (1), (2), (3), (4) and (5) as he allegedly did, and could not of itself justify the pleaded libels, while (8A) is irrelevant, and could not under section 5 or otherwise justify the pleaded libels.

Hitler’s personal knowledge of atrocities committed against the Jews during WWII

47.Though anathemized by Lipstadt as a “Holocaust denier,” Irving has never denied and has indeed repeatedly and forcefully stated in books and public lectures (1) that the Nazis and their allies committed systematic mass murder of Jews on a chilling scale, especially in the Baltic states, in Byelorussia and the Ukraine, but also in Russia proper, in Poland, and in other occupied countries in eastern Europe, or (2) that many mass killings were latterly carried out as a matter of policy on the personal orders of Himmler and Heydrich, though (3) particularly in the early stages of Operation Barbarossa (the invasion of the Soviet Union in June, 1941), mass killings were carried out not only by German forces, but also by local, non-German, anti-Semitic elements, especially in the Ukraine and in the Baltic states, acting independently of Himmler and Heydrich for reasons of their own.

48.Two examples are:–

1. Irving has broadcast on Australian radio that, from June 1941 onwards, over a million Jews were shot on the Eastern Front. A transcript of that broadcast was in evidence.
2. In his book Hitler’s War, (1977) Irving writes that by 1943:–
   

   “The increasing brutalisation of the war showed itself in many ways. . . Himmler revealed to his SS Gruppenfuhrer (generals) on October 4, and to the Party’s Gauleiters on October 6 that by the end of 1943 the last Jews in occupied Europe would have been exterminated.”

49.The key issue under (1) is therefore the extent of Hitler’s personal knowledge of and responsibility for the systematic mass murder of Jews, the historicity of which Irving does not dispute.

50.Irving’s case (summarized by Gray J at 5.137, 5.138 and finally at 13.30) is that there is an important “chain of documents” which shows that, so far from having ordered the biological annihilation of European Jewry” (5.94) Hitler intervened on occasion to check atrocities against the Jews, in accordance with his policy of deferring a “solution to the Jewish problem” until after WWII.

51.Irving does not dispute that there is also a contrary line implicating Hitler. Having weighed the evidence as a professional historian, he prefers the first line of documents to the second, and is, he says, amply justified in so doing.

52.It was not however sufficient in order for the Defendants to make good their plea of justification to persuade the Court that, on the balance of probabilities, and in the light of the materials now available to scholars, the second line is to be preferred to the first.

53.The distinction to be drawn is closely akin to that between the differing tests for negligence and deceit. As Gray J rightly observes at 13.3, “the issue. . . is Irving’s treatment of the available evidence,” and at 13.4, “Irving rightly stresses that the Defendants have accused him of deliberately perverting the evidence.”

54.As to Gray J’s findings under (1):–

The Schlegelberger Memorandum

55. The Schlegelberger memorandum is central to the appeal on the facts. Contrary to Gray J’s express finding at 5.162, Irving has never acknowledged that the Schlegelberger memorandum is in any sense “unsatisfactory.” On the contrary, he has always contended that it is a contemporaneous, authentic, brief, official, precisely worded, internal ministerial record of Hitler’s thinking on the Jewish question, and so of seminal importance.

56. Schlegelberger was a civil servant in the Reich Ministry of Justice. In English translation his memorandum reads:–

“Mr. Reich Minister Lammers informed me that the Führer had repeatedly declared to him that he wants to hear that the solution of the Jewish Problem has been postponed until after the war is over. That being so, the current discussions are of purely theoretical value, in Mr. Reich Minister Lammers’ opinion. He will moreover take pains to ensure that, whatever else happens, no fundamental decisions are taken without his knowledge in consequence of a surprise briefing by any third party.”

57.Gray J errs in the gravest fashion in assessing the real evidence actually before him when he states at 13.33 that the Schlegelberger memorandum was “unsigned” and “an Abschrift (copy) rather than an original document. . . ” and that “there is no clear evidence of the context in which the note came into existence.”

58.A facsimile of the Schlegelberger memorandum was before Gray J in Court at all times. As is apparent from the facsimile itself, it is not (unlike most of the Defendants’ documents) an Abschrift (typed copy or transcript) at all, but an original with holograph signatures. The original is still in German Federal Archives in its original Reich Justice Ministry file called Behandlung der Juden (“Treatment of the Jews”), which provides all necessary contextual material. The whole text makes it plain that the Judenfrage (“Jewish question”) to which Hitler refers is by no means confined to the issue of Mischlinge (people of mixed descent), as suggested by Evans.

59.On the Defendants’ case and Gray J’s findings, the Schlegelberger memorandum was generated at a crucial point in the chronology of the Holocaust, just a few weeks after the Wannsee Conference of January, 1942, as to the supposed importance of which see paragraph 62 below. Gray J told leading Counsel for the Defendants on Day 6, 19 January 2000, at page 168 of the transcript:–

“Mr Rampton, does it simplify matters if I say I am prepared to accept that there is good internal evidence that it is March or thereabouts 1942?”

60.While Gray J observes at 5.161 that:–

“The Defendants argue that no reputable and objective historian would nail his colours to the mast in the way that Irving has done by admitting only one possible interpretation of the note,”

he fails to point out that no reputable and objective historian other than Irving has ever mentioned this memorandum at all, yet it mentions the Führer, the “solution of the Jewish problem”, and “decisions”, all in one paragraph, expressly stating that Hitler wished to see the “solution of the Jewish problem” postponed until the war was over.

61.The Defendants have produced nothing whatsoever of this evidential value relating, to the critical issue, namely the role of Hitler himself. The Defendants’ experts have pretended in their books that it does not even exist. Their conduct in this regard amounts to an egregious suppresio veri et suggestio falsi.

The “Wannsee Conference”

62.As to 5.142, Irving’s slim bundle of actually existing documents is set against Evans’s sweeping, grandiose and wholly unparticularized reference to a “vastly greater number” of contradictory documents, not one of which does Evans identify.

63.Lipstadt herself thought that the minutes of the so-called “Wannsee conference” crucial to the historiography of the Holocaust, describing at page 214 of Denying the Holocaust.–

“…. the 1942 Wannsee Conference, at which Heydrich and a group of prominent Nazis worked out the implementation of the Final Solution…”

64.Gray J evidently agreed with this view. While at 13.36 Gray J said: “I do not regard the arguments advanced by Irving. . . as being without merit: they are worthy of consideration,” he nevertheless rejects Irving’s interpretation of the Schlegelberger memorandum at 13.35, giving as one of his principal reasons:–

“that the evidence suggests that at the Wannsee conference in January 1942 (where Heydrich claimed to be speaking with the authority of Hitler) a programme for the extermination of Jews had been discussed and in broad terms agreed upon.”

65. Lipstadt’s and Gray J’s observations wholly disregard the contents of the Wannsee protocol. Irving put the relevant quotes to Gray J in his closing speech:–

“For a long time the confident public perception was that the Wannsee protocol, of the 20 January 1942 meeting, recorded the actual order to exterminate the European Jews. Yehuda Bauer, the director of Yad Vashem, the world’s premier Holocaust research institution in Israel, has stated quite clearly: ‘The public still repeats, time after time, the silly story that at Wannsee the extermination of the Jews was arrived at.’ In his opinion Wannsee was a meeting but ‘hardly a conference,’ and he even said: ‘Little of what was said there was executed in detail.'(Canadian Jewish News, 30 January, 1992) Despite this, Your Lordship has had to listen to the ‘silly story’ all over again in this Court from the expert witnesses.” (Day 32, 15 March, 2000).

66.Moreover, anachronism is a widely recognized fault in historical methodology. An approach based on the interpretation of documents written in 1942 in the light of events which happened in 1943 or 1944 is fundamentally flawed.

67.As to the other documents discussed in Gray J’s judgment:–

The deportation of the Berlin Jews and the Riga massacres (paras. 5.90 to 5.110 and 13.21 to 13.25)

68.It is submitted that Irving’s treatment of these episodes is (1) to be preferred to Evans’s, alternatively, (2) is a fair alternative interpretation of the material available to Irving.

69.As to 5.106, Gray J wrongly summarizes the evidence when he says:–

“In relation to the entry in Himmler’s log for 1 December 1941, Irving said that he misread Himmler’s spidery Suetterlin handwiting: he thought he had written Judentransporte in the plural. It was, he said, a ‘silly misreading’.”

70.In fact Judentransport occurs in the entry for 30 November, 1941 entry, and haben zu bleiben, which Irving admitted misreading as Juden zu bleiben, on 1 December, 1941. Irving never admitted misreading Judentransport as Judentransporte.

71.Evans’s criticism of Irving’s explanation for this mistake cited by Gray J at 5.110 is merely one instance of Evans’s gross bias against Irving, and anxiety to impute the worst possible motives to him at every turn. The misreading of Himmler’s difficult handwriting in respect of the phrase haben zu bleiben as Juden zu bleiben was regrettable, and eventually corrected. Irving was the first to find and transcribe these notes from Himmler’s very difficult old-German handwriting, using barely legible photocopies in the 1960s. He inevitably made numerous errors of transcription. Others have since gone over the same notes and polished and refined the transcriptions. The excision of this sentence from the text has made no difference to the thrust of Irving’s argument that there was a direct connection between Hinamler’s arrival at Hitler’s HQ on 30 November 1941 and his telephone call to Heydrich, ordering a halt to the liquidation of the Berlin Jews.

72.Turning to this point at 13.21, Gray J says:–

“The second criticism (which is more important for the purpose of this case) is that Irving is in error when he claims that the instruction not to liquidate the Jews on that transport emanated from Hitler. There is no evidence that Hitler ‘summoned’ Himmler to his headquarters and ‘obliged’ him to telephone to Heydrich an order that Jews were not to be liquidated.”

73.The sequence of events established by Himmler’s agenda and telephone log is as follows. Himmler went to Hitler’s headquarters in East Prussia on the morning of 30 November 1941, and “from the bunker” spoke at 1.30 p.m. by telephone to Heydrich, forbidding the liquidation of the trainload of Jews from Berlin. Himmler certainly saw Hitler either before or after this telephone call. Evans’s claim at 5.104 that there were “several” bunkers at Hitler’s HQ was refuted on the spot by Irving: Evans admitted that his map of the HQ was from 1944, after extensive bunker construction had taken place. Gray J makes no reference to Evans’s poor methodology on this issue.

74.As Irving has recorded in many books, the trainload of Berlin Jews had however already been liquidated on arrival in Riga at around 9 a.m. on the morning of 30 November 1941. The culprit, SS Obergruppenführer Jeckeln, was severely criticised by Himmler (in a message intercepted by British codebreakers on 1 December 1941) for arbitrarily and disobediently exceeding the guidelines laid down by Hammier and the Reichssicherheitshauptamt (Heydrich):–

“SS Obergruppenführer Jeckeln. The Jews being out placed to Ostland [the Baltic states] are to be dealt with only in accordance with the guidelines laid down by myself and/or by the Reichssicherheitshauptamt on my orders. I would punish arbitrary and disobedient acts. (sgd) Himmler.” See Day 3 13 January 2000.

75.That same day Himmler summoned Jeckeln to East Prussian HQ by a second code signal; Jeckeln presented himself at HQ on 4 December 1941, and was reprimanded. The killings of German Jews immediately stopped for several months. All the expert witnesses agreed that this was the documented sequence.

76.It is accordingly the primary and most reasonable inference that there was a very direct connection between Himmler’s arrival at Hitler’s HQ and his sudden telephone call to Heydrich, ordering a halt to the liquidation of the Berlin Jews.

77.As to 5.94, Irving was entitled heavily to discount Wisliceny’s ex post facto guess work. Wisliceny (a mass murderer, who was hanged after the war for his crimes) is speculating when he expresses his conviction that in late 1941, Hitler had “ordered the biological annihilation of European Jewry”.

78.5.120: Here the mathematics are out. As Irving stated in evidence, and Evans agreed, a pit of those dimension would hold at most 1,500 corpses (not 7,000). Bruns stated there were “two or three” such pits. A pit three metres wide cannot be dug deeper than two metres, unless shored up, which these pits were not.

79.At 13.24 Gray J says of Irving’s treatment of Bruns’ evidence:–

“An objective historian is obliged to be even-handed in his approach to historical evidence: he cannot pick and choose without adequate reason.”

80.Leaving aside the conduct of the Defendants’ experts, who throughout dismissed whatever they did not like as euphemism, falsehood, forgery, self-serving or neo-Nazi, etc., the reason (which Gray J does not state) was simply that for the first part of Bruns’s statement (mass shootings are to stop) there was contemporary corroborative evidence, for example the signal from Himmler, and the fact that the shootings did stop for many months. For the second part, the suggestion that: “the shootings are to continue more surreptitiously, Irving had not discovered a shred of corroborative evidence.

81.As to 5.126, Irving’s translation is taken word for word from the original Weidenfeld edition of Hitler’s Table Talk (ed. Hugh Trevor Roper). Irving pointed out to Gray J that the Trevor Roper edition was not a slavish translation of the original German text, which only became available years later. The last sentence of this paragraph should be read in this context.

82.At 5.148 Gray J observes:–

“But he accepted, with some reluctance, that it does establish that Hitler authorised the liquidation of Jews in the East as if they were partisans.”

83.This is a seriously inaccurate summary of Irving’s evidence. Irving adhered to the view that the correct rendering of the German wording was that (certain unidentified) Jews were to be liquidated as partisans, not like or as if they were partisans.

84.Re 5.185: Hitler’s adjutants was interrogated in 1945/46 et seq. on precisely this knowledge by the Allied interrogators, and their response was the same.

85.Re 5.193: Gray J fails to take into account the compelling argument that in their own private notes Himmler, Bormann and the other leading Nazis had no need to use euphemisms.

Goebbels’ diary entries for 27 March 1942 and 30 May 1942

86.5.150: Gray J’s summary, viz. “Irving regarded Goebbels’s diary entry for 30 May 1942 as constituting ‘acres of sludge’ not worth including in his book.” is to be contrasted with what Irving actually said on Day 5 at page 54: “Acres of sludge, is it not? If I had to put all that into a book, the book would sink under its own weight.”

87.That sets out the position of any author; Irving had to produce a book of economic size and readability. Gray J has omitted these overriding economic and publishing reasons for shortening a text.

88.13.37 Gray J says:–

“I have concluded without hesitation that the manner in which Irving deals in Hitler’s War (both editions) with Goebbels’s diary entry of 27 March 1942 is misleading and unsupported by the circumstantial evidence.”

89.These observations should be compared with Gray J’s approach to the Schlegelberger Memorandum, which was dictated or typed by a lawyer and minister, Schlegelberger, at Lammers’ (the head of the Civil Service’s) dictation: that is “hearsay” (13.33). The Goebbels diary is a private diary note typed by junior civil servant Richard Otte at “Big Lie” propaganda minister Goebbels’ dictation of alleged remarks by Hitler. Yet it is suggested that Irving ought to have quoted the diary at greater length, even though Goebbels himself uses the word wohl (omitted by Evans, who castigates Irving for selective quotation), stating that liquidation is probably happening, i.e. it is not a statement of fact, but of belief.

Hitler’s meeting with Admiral Horthy

90.13.44 “Such an historian would ponder whether the language of the minutes can be said to be consistent with a desire on the part of the Nazis to secure the deportation of the Jews and nothing more.”

91.Gray J overlooks the striking fact that there is no mention of killing the Jews in the internal Magyar records taken by the Hungarian ministers at this conference, accessible in Hungarian archives to-day. This was a point that Irving made mostpowerfully.

92.113.44 “He would also have in mind the subsequent history of the Romanian and Hungarian Jews.”

93.As a matter of historical methodology, it would be wrong to construe the minutes of an April 1943 meeting with the benefit of hindsight about what allegedly happened to Hungarian Jews in May/June 1944 under totally different circumstances, namely the German invasion of Hungary and the deposition of Horthy, who was himself imprisoned in concentration camp.

94.13.44: “Irving was constrained to accept that the pretext which he put forward for the meeting with Horthy (the Warsaw ghetto uprising which happened afterwards) was false, as was his explanation for the harsh attitude evinced by Hitler at the meeting (recent Allied bombing raids).”

95.The Warsaw ghetto was a seething cauldron for weeks before the uprising. Hitler himself referred to the bombing of civilians in his talk with Horthy, which Irving put to Gray J by translating the relevant passage after Evans had denied it. The transcript of the conference shows that Hitler told Admiral Horthy on 16 April 1943:–

“If one did not drive out the Jews now, then they would again just as then destroy the economy, the currency, and morale. . Anyway, why should the Jews be handled with kid gloves?. . . They were responsible particularly for the bombing of the civilian population and the countless victims among women and children.”

96.Later Horthy answered. “He had done”, he said, “everything one decently could against the Jews, but one couldn’t very well murder them or bump them off somehow.” The Führer replied that:–

“There was no need for that either. Hungary could accommodate the Jews in concentration camps just like Slovakia. . . If there was talk of murdering the Jews, then he (the Führer) must point out that only one person murdered, namely the Jew who started wars, and who by his influence gave the wars their anti-civilian, anti-women and anti-children character. With regard for the Jews, there was always the possibility of having them work down the mines. But at all costs they must be cut off from any kind of influence on their host country.” (Prof. Andreas Hiligruber, Staatsmaenner und Diplomaten bei Hitler,vol. E., pp. 239 to 245)

97.13.44: “I was not persuaded that Irving had any satisfactory explanation for his transposition from 16 to 17 April [1943] of Hitler’s comforting remark, made on 16 April, that there was no need for the murder or elimination of the Hungarian Jews.” Given the actual content of the remark, the accidental misdating of the reference by one day makes no difference.

Himmler’s note for a meeting with Hitler on 10 December 1942

98.Re: 13.40 “I therefore accept the contention of the Defendants that Irving’s treatment of this minute is unjustifiably favourable to Hitler.”

99.Irving included the whole note in his book, so readers could make up their own minds.

100.Re: 13.41: the same holds for this passage. The Defendants’ experts made no attempt to include Irving’s alternative and often more likely interpretation of the document in their own works, but they are not perverse.

The Liquidation of the Jews of Rome

101.As to the allegation at 5.220 that Irving suppressed the fact that the Jews of Rome were murdered, he wrote at page 575 of the 1977 edition of Hitler’s War.–

“Himmler also considered the eight thousand Jews a potential threat to public order; Ribbentrop brought to Hitler an urgent telegram from his consul in Rome reporting that the SS had orders from Berlin that the eight thousand Jews resident in Rome are to be liquidated.’ Again Hitler took a marginally ‘moderate’ line. On the ninth Ribbentrop informed Rome that the Führer had directed that the eight thousand Jews were to be transported to Mauthausen concentration camp in Austria instead, where they were to be held as ‘hostages.’ It was, Ribbentrop defined, purely a matter for the SS. (The SS liquidated them anyway, regardless of Hitler’s order.)”

Himmler’s speeches of 6 October 1943 and 5 and 24 May 1944

102. At 13.46 Gray J finds that:–

“Two of the speeches provide powerful evidence that Hitler ordered that the extermination of the Jews should take place. Yet in the 1977 edition of Hitler’s War Irving suggests that the existence of a Hitler order was an invention on the part of Himmler. It does not appear to me that the evidence supports that suggestion. I consider that Irving’s deduction that the transcript of the speech of 5 May was either altered after Himmler delivered the speech or sanitised before it was shown to Hitler is fanciful. The absence of any mention of that speech in the 1991 edition of Hitler’s War was in my judgment another culpable omission.”

103.Irving dealt with these speeches at length in Hitler’s War and (though he is said to be a Holocaust denier) drew the obvious conclusions from the fact that Himmler said that he, Himmler, had not felt it right to order the killing of the Jews without ordering the killing of their womenfolk and children too: he made no mention of Hitler as giving that order.

Ribbentrop’s evidence in his Nuremberg prison cell

104.At 13.48 Gray J finds that Irving “fails to quote his [Ribbentrop’s] immediately following comment that he at least knew about it [the Holocaust]”.

105.The contentious passage is an endnote to Hitler’s War:–

“Writing on Hitler in his Nuremberg prison cell, Ribbentrop also exonerated him wholly, ‘How things came to the destruction of the Jews, I just don’t know. As to whether Himmler began it, or Hitler put up with it, I don’t know. But that he ordered it I refuse to believe, because such an act would be wholly incompatible with the picture I always had of him” (Bavarian State Archives, Rep, 502 AXA 131).

106.As the Defendants’ experts and Gray J pointed out, Irving omitted the following words:–

“On the other hand, judging from his Last Will, one mustsuppose that he at least knew about it, if, in his fanaticism against the Jews, he didn’t also order [it].”

107.These words are the merest speculation.

What documents had Hitler actually read?

108.At 13.57, Gray J finds that:–

“The evidence which prompted Irving to make these concessions consisted in the regular reports made by the Einsatzgruppen to Berlin; the preparation by the RSHA in Berlin of Ereignismeldungen (event announcements). . . “

109.There was no evidence before the Court that even one of these Ereignismeldungen was shown to Hitler.

“… and a report numbered 51 dated 29 December 1942 which recorded the “execution” of 363,112 Jews and which (as Irving accepted) was probably shown to Hitler.”

110.Irving did not so accept, but on the contrary, demonstrated that there was no evidence whatever that it had been read by Hitler. Merely vorgelegt (submitted) was not good enough, as he demonstrated by reference to a document which had been vorgelegt twice, proving that it had not been read when merely vorgelegt once. There was no “paper trail,” no replies, action, comments, etc. on the main document in question.

Auschwitz

111.All parties treated Auschwitz as the most important issue of all. Irving did not argue at any length what happened in the other camps, treating Auschwitz as a test case, not least because Gray J was most insistent that he should deal with the evidence expeditiously; see, by way of one example amongst many, day 20:–

“Gray J: Mr Irving, I am conscious we are still on page 152. We have about 600 pages to go. It is not a race, but we have to keep an eye on what matters and what does not.”

112.See also at 4.12 per Gray J: “Both sides have agreed that I should confine myself to the issues which have been ventilated by one side or the other in cross-examination.”

113.See further note 129 in Irving’s closing speech, which records an exchange with Van Pelt:–

“Irving: So if I am to concentrate a large part of my investigation in this cross-examination on that one building and, in fact, on Leichenkeller 2, the one arm of the crematorium, this is not entirely unjustified if I am trying to establish that the factories of death did not exist as such?”

“Prof. van Pelt: No. I think that that the obvious building to challenge would be Krematorium II

114. It is in the circumstances most unfair of Gray J to say at 13.63 that Irving was disingenuous in suggesting that his reason for not arguing what happened in the other camps was to save the Court’s time. All parties effectively agreed that if Irving had established that Auschwitz was not a “factory of death”, debate about the lesser camps would have been pointless and time wasting.

The orthodox historical consensus

115.Somewhere something has plainly gone seriously wrong in the treatment of Auschwitz by orthodox historians. Irving showed the Court the official German newsreel Welt im Film issued on 8 January 1948 at the height of post-war denazification. It records the Polish Communist Court’s final judgment on Hoess, the camp commandant of Auschwitz and his staff at Krakow in December 1947.

116.The Polish Court, in whose district the camp is situated, which tried the case shortly after the events in question took place, and had no cause to love Germans in general or Nazis in particular, stated that “nearly 300,000” people of all nations had “died” at the camp. This figure, it should be noted, does not differentiate between deaths (1) from wholly natural causes, (2) accidents, (3) disease, (4) malnutrition, (5) Allied air raids (6) the consequences of mistreatment of inmates by the SS, and (7) deliberate killing of inmates by the SS.

117.As Gray J observes at 8.25 “that figure gradually increased to four million, which was the number mentioned until 1990 on the monument erected by the Communists in memory of the dead. The figure then came down again.”

118.At 8.22 Gray J states: Research carried out more recently, notably by Raul Hilberg and by Dr. [Franciszek] Piper of the Auschwitz Museum, has concluded that the true figure for the number of deaths at Auschwitz is in the region of 1.1 million, of which the vast majority perished in the gas chambers. This figure has, according to the evidence of Van Pelt and Longerich, been endorsed by the majority of serious, professional historians concerned in this field.”

119.Dr. Piper was responsible for the figure of four million on the Auschwitz memorial, now reduced by a factor of 75% even by him, so his reliability is not beyond question.

120.Longerich was clear under cross examination that the one million figure was from all causes, and he confirmed this even when challenged by Gray J. Under cross-examination on 28 February, 2000 (Day 26, pages 56 et seq.) Longerich stated that he believed that one million had died from all causes. He added that in his opinion, anybody who was transported to Auschwitz and “died there because of exhaustion, hunger and of other causes was murdered.”

121.Asked by Irving: “You include in that figure [1 million] the numbers who died from typhus and the other epidemics?” the witness confirmed this.

122.Gray J then asked:–

“Mr. Irving’s question was; are you actually including in your 1 million figure those who died as a result of forced labour?”

“Yes”

“And,” pressed Irving, “the starvation, pestilence, plague, epidemics, all the other ancillary causes?”

“Yes”

123.Gray J only partially recognises the effect of these exchanges at 8.23. In that paragraph he appears to accept Longerich’s manifestly absurd claim that the Nazis deliberately encouraged epidemics and plague in their camps as part of their genocide, as though epidemics are respecters of persons, calling a halt according to uniform and race.

The eye witnesses

124.Gray J poses the question at 6.80:–

“What is the evidence for mass extermination of Jews at those camps? The consequence of the absence of any overt documentary evidence of gas chambers at these camps, coupled with the lack of archeological evidence means that reliance has to be placed on eye witness and circumstantial evidence…”

125.Yet even the Defendants had some reservations about the testimony of the handful of eye witnesses. Irving for his part explains the evidence of the former camp officials as extracted under torture or given in a desperate attempt to ingratiate themselves with their captors by confessing in the terms expected of them. The six or so inmates who have come forward with their accounts are an infinitesimal percentage of the survivors, and Irving dismisses their evidence as invented, exagerated, or the product of what is now called false memory syndrome. The question is not whether he is right in that view, but rather, whether he came to it honestly and reasonably.

126.By way of examples of the value (or lack of it) of the eye witness testimony, at 13.77 Gray J is impressed with Tauber, though (contrary to Gray J’s slip of the pen at 7.110, when he wrongly attributes this tale to Olère), it was Tauber who made the absurd claim that the SS manufactured sausages out of human flesh in the crematoria.

127.As to Gray J’s observation at 7.40 that: “Van Pelt considered that Tauber’s testimony is almost wholly corroborated by the German blueprints of the buildings,” that is scarcely surprising, as it is said that Tauber was questioned by the Polish prosecutors on the basis of the blueprints which were before them and him. Sometimes he described things which existed only on the blueprints, and which were never actually installed. All this material was put to the Defendants’ experts in cross-examination.

128.As to 7.31, Pery Broad, whom Gray J generously describes as “an officer in the Auschwitz Political Department” had been a Gestapo agent operating at Auschwitz. He later became a paid agent of the British occupation government in Germany. He was thus a man of dubious antecedents and flexible allegiances, whose evidence is plainly open to question on these grounds. Perhaps unsurprisingly, he was not produced for cross-examination at any of the war crimes trials, e.g. at the Tesch trial his affidavit alone was produced. He is one of the witnesses to the critical “holes” in the roof of Krerniatrozium which Van Pelt conceded do not now exist; see para. 7.92.

129.At 13.49, Gray J praises “Vaillant-Couturier’s vivid, detailed and credible evidence about the women’s camp at Auschwitz”. Marie-Claude Vaillant-Couturier was a demonstrably political woman. Much of this Communist agitator’s past is still shrouded in mystery. In her essay Women in the French Resistance Rebecca G. Halbreich concedes: “It is not clear from any source what her exact role was in the Resistance.”

130.The evidence of her heroism is her own uncorroborated testimony at Nuremberg: she was (she said) arrested by Petain’s French police on 9 February 1942, questioned by the Germans on 9 June 1942, and arrived with 230 other French women at Auschwitz on 27 January 1943; of these, 49 survived, the rest dying of disease (though her testimony is vague on this point); she herself caught typhus and was in quarantine from 15 July 1943 to May 1944, returned to the main camp for two months, then being transferred to the women’s camp at Ravensbruck.

131.For her IMT testimony, see Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 28 January 1946 (Nuremberg, 1947), p. 219.

132.It seems likely that Judge Biddle wrote “this I doubt” of her testimony generally, for example:–

• (i) her preposterous account of the SS flagellation machine, which requires Freudian rather than legal analysis; and
• (ii) her lurid suggestion that a guard called Tauber had encouraged his SS dog to kill prisoners for fun.

133.It scarcely seems likely that Judge Biddle was referring to her account of women being selected for SS brothels. That part of her testimony was unquestionably true. Such brothels were a feature of most concentration camps.

The physical evidence of the camps at Auschwitz and Birkenau

134.How unreliable this evidence is appears from what Van Pelt himself has written in his book Auschwitz: 1270 to the Present, Robert Jan van Pelt and Deborah Dwork, Yale University Press, London 1996, p. 364:–

“When Auschwitz was transformed into a museum after the war, the decision was taken to concentrate the history of the whole complex into one of its component parts. The infamous crematoria where the mass murders had taken place lay in ruins in Birkenau, two miles away. The committee felt that a crematorium was required at the end of the memorial journey, and Crematorium I was reconstructed to speak for the history of the incinerators at Birkenau.

“This program of usurpation was rather detailed. A chimney, the ultimate symbol of Birkenau, was re-created; four hatched openings in the roof, as if for pouring Zyklon B into the gas chamber below, were installed, and two of the three furnaces were rebuilt using original parts. There are no signs to explain these restitutions, tehy were not marked at the time, and the guides remain silent about it when they take visitors through this building that is presumed by the tourist to be the place where it happened.”

The Documents:

1. The Bischoff document

135.Gray J says at 7.106 that:–

“Irving dismissed several of the allegedly incriminating documents as unauthentic if not downright forgeries.”

136.Gray J is, however, wrong. As Irving emphasized in his closing speech, he challenged the authenticity of only one document, the Bischoff document.

137.Gray J is also seriously in error when he says that the grounds for Irving’s challenge to the authenticity of the Bischoff document rested:–

“on the inaccurate designation of the rank of the addressee of the letter, General Kammler, which omitted the distinctive symbol used by the Nazis for members of the SS.”

138.This was not even a ground, let alone the ground, upon which Irving relied. The grounds were listed clearly in Irving’s written submissions to Gray J of 21 March, 2000 (submitted at the Court’s request):–

1. Bischoff letter, 28 June, 1943, on crematorium capacity at Auschwitz.
   

   The integrity of this document is challenged on the following grounds:–

   1. Letter register number (“31550 Pe. /Ne.-“) lacks the year (/43/”)
   2. Letter register number has a secretary or typist working for the man who dictated the letter (Jenisch) whose initials (“/Ne.”) are not found on any of the other 58,000 documents surviving in the Auschwitz Construction Office archives.
   3. The rank of Dr. Kammler is given wrongly: SS-BrigadeFuehrer und Generalmajor instead of: SS-BrigadeFuehrer und Generalrnajor der Waffen SS. Such an error is not found on any other genuine document whatever.
   4. The reference number “31550” appears to have been typed in at a later date, possibly after somebody ascertained a suitable in sequence number to give to the fake document.
   5. The handling figures which this document gives for Crematorium II do not tally with the specifications provided by the manufacturers, Topf & Co. A letter cited by Jean-Claude Pressac from the Topf archives gives a top rate of 800 per day for Crematorium II and III
   6. Furthermore, the document refers to some crematoria which were at that time shut down, and to others that were due to be taken out of commission. Crematorium II was in service from March 15 to 24 and July 18 to December 31, in. 1943; Crematorium III from June 25 to December 31; Crematorium IV from March 22 to May ICI Crematorium II and IV were apparently ‘down’ at the date of the alleged document; and Crematorium I was taken right out of service soon after for conversion to an air raid shelter.”

The Cavendish-Bentinck Memorandum

139. Cavendish-Bentinck (later Duke of Portland), though dismissively described by Gray J as a “Foreign Office official,” was in fact chairman of the Joint Intelligence Committee of the War Cabinet, and thus head of British Intelligence. He had automatic access to all Intelligence materials, including the highest grades such as Ultra intercepts and CSDIC interrogations. He stated in writing in August 1943 that the British had no evidence of the existence of gas chambers. The document dated 27 August, 1943, is authentic, signed in his handwriting, and preserved in British files (PRO file FO.371/ 15252). It reads:–

“As regards putting Poles to death in gas chambers, I do not believe that there is any evidence that this has been done. There have been many stories to this effect, and we have played them up in P.W.E. rumours without believing that they had any foundation. At any rate there is far less evidence than exists for the mass murder of Polish officers by the Russians at Katyn. [. . . I think that we weaken our case against the Germans by publicly giving credence to atrocity stories for which we have no evidence. These mass executions in gas chambers remind me of the story of employment of human corpses during the last war for the manufacture of fat [. . ].”

Camp Commandant Hoess’s daily cipher reports to Berlin

140.In Volume II of his book British Intelligence in the Second World War, Sir F. Hinsley notes that British Intelligence was decoding the secret messages from Hoess, Camp Commandant of Auschwitz, to Berlin, which included his daily returns, and goes on to say:–

“The returns from Auschwitz, the largest of the camps with 20,000 prisoners, mentioned illness as the main cause of death, but included references to shootings and hangings. There were no references in the decrypts to gassing.”

141.Gray J deals with this striking omission by observing at 8.21 that:–

“Records were kept. . . of the number of deaths amongst those who were registered as inmates of the camp. But, for reasons which are perhaps obvious, none of those deaths is recorded as having been due to gassing.”

142.That observation: itis submitted, invites three rejoinders. The first is that Hoess’s reports to Berlin were in top secret cipher. No-one on the German side had the slightest inkling that we had broken it. It is accordingly anything but obvious why Hoess, who dispassionately recorded the statistics for inmates whom he had ordered should be hanged or shot, did not record any deaths by gassings.

143.The second is that Gray J appears to consider the very absence of evidence for a particular proposition as an “obvious” proof of its correctness.

144.The third is that at 13.27, Gray J observes:–

“I was unconvinced by the strenuous efforts made by Irving to refute the sinister interpretation placed by the Defendants on Hitler’s pronouncements on the Jewish question from late 1941 onwards.”

145.These were mostly public pronouncements, yet Gray J is suggesting that the whole genocide operation was top secret. Gray J’s findings at 8.21 cannot stand with his findings at 13.27.

Sonderaktion (sing.), Sonderaktionen (pl.)

146.The Defendants invariably attribute a sinister meaning to this word. It is treated as an euphemism for killing, an approach to construction much favoured by the Defendants when a literal translation of documents in the German language did not assist them. It is, however, far from apparent that it should invariably bear this sense. For example, a telex to Berlin from Bischoff of the Auschwitz camp administration dated 18 December 1942 refers to a Sonderaktion der Gestapo bei sämtlichen Zivilarbeitern, which means, if the translation of Sonderaktion advocated by the Defendants and adopted by Gray J is correct, that the Gestapo killed all the civilian workers in the camp. No-one has ever suggested that such a massacre took place.

Gray J’s observations at 7.1 1 8, 1 3.73 and 13.74

147.At 7.118 Gray J observes that:–

“The Defendants accept that the physical evidence remaining at the site of Auschwitz provides little evidence to support the claim that gas chambers were operated there for genocidal purposes.”

148.Irving adopts that observation, and all that Gray J says at 13.73 e.g.:–

“The contemporaneous documents, such as drawings, plans, correspondence with contractors and the like, yield little clear evidence of the existence of gas chambers designed to kill humans.”

149.Para. 13.74, is also generally adopted, especially “the possibility exists that some of these witnesses invented some or even all of the experiences which they describe.” Gray J is however wrong to attribute the Bischoff incineration document (see above) to Mueller; Gray J repeats this error at 13.76.

The Scientific Evidence

1. Morgue 1 at Crematorium II

150. The Defendants’ case is that mass gassings were carried out at this site. The alleged modus operandi of the SS was to insert Zyklon B pellets through four holes in the roof to poison the unfortunates locked in the gas chamber below. Irving’s principal objective in relation to the Auschwitz aspect of the trial was to discredit this theory, by showing that there never were any holes in the roof.

151.At 13.81 Gray J says:–

“as the trial progressed, the emphasis of Irving’s case on Auschwitz appeared to shift from the absence of cyanide in the brick and plaster to the roof of Morgue 1 at Crematorium II.”

152.This statement is totally wrong. On the very first day Irving insisted on showing the court a video of Van Pelt on the roof of Morgue I, and drew the Court’s attention to Van Pelt’s statement that beneath that slab the worst atrocities ever committed against man had been done by the Nazis. That this was the epicentre of atrocity, a factory of death, etc.

153.Re: 13.83: “It is unclear how much of the roof can be seen in the photograph on which Irving relies. The roof is in a bad state, so that it is hard to tell if there were holes in it.”

154.The fact remains that Van Pelt in his own report says that the holes are not in that roof now, and was driven to guess that they were invisibly filled in by the Nazis. It is not possible to fill in holes of the postulated dimensions without leaving traces.

155.Re: 13.84: “The apparent absence of evidence of holes in the roof of morgue at Crematorium II falls far short of being a good reason for rejecting the cumulative effect of the evidence.”

156.This is an astonishing finding. The roof is still there and has no holes in it, but because the cumulative convergent evidence presented by the Defendants’ experts in London suggests that there are holes, the evidence of the concrete roof is ignored. Irving three times challenged the Defendants: “go and find the holes, and I will halt the case.” The Times of 12 April 2000 reports that the Auschwitz authorities went to look for the holes. No report of their findings was put before the Court. If the Court of Appeal is minded to grant Irving leave to appeal, he will in due course seek letters rogatory to the competent Polish court for the production of the undisclosed report.

2. The Cyanide Stains

157.Van Pelt is a professor of cultural history and completely ignorant of chemistry, so was in no position to testify on this subject.

158.Roth did not give evidence at the trial. Roth had originally analysed Leuchter’s samples, supporting Leuchter’s conclusions. Later he said:–

“If I had known the samples came from Auschwitz I would have _come to a different conclusion…”

159.The evidence of a man who will change his conclusions to suit the premises is of little value

160.When giving a summary at 7.115 of Roth’s views (received at second hand, and not tested by cross-examination) Gray J does not mention that Irving produced to the Court colour photos of the fumigation chamber at Auschwitz, showing that the blue cyanide stains had permeated right through the brickwork.

161.Even if the concentration of cyanide required to kill 500,000 human beings is less than the concentration required for routine delousing of garments, Roth’s suggestion that cyanide produces a surface reaction which will penetrate no further than one tenth of the breadth of a human hair appears to be irreconcilable with the evidence of the colour photos of the fumigation chamber.

162.It is, moreover, a matter of common knowledge, which can easily be proved by the production of real evidence if the Court of Appeal declines to take judicial notice of it, that plaster is a very rough, porous and coarse material. It defies common sense to accept that a gas such as hydrogen cyanide will not penetrate into such material deeper than a few fractions of a millimetre.

3. Coke consumption in the crematoria

163.An important part of Irving’s thesis that the scale of the atrocities perpetrated at Auschwitz has been materially exaggerated is that it would have been quite impossible to cremate the alleged numbers of gas chamber victims with the supplies of coke delivered to AuschwitzíBirkenau. See e.g. his cross-examination (Transcript of day 9, pp. 149 et seq.) of Van Pelt, who, being neither an engineer nor a chemist, but a professor of cultural history with some knowledge of architecture, should not have been heard on this issue anyway.

164.Summarizing Van Pelt’s evidence on this issue at 7.124, Gray J observes that:–

“basing himself on a contemporaneous calculation and assuming bodies were burned together at the rate contemplated in Bischoff’s letter of 28 June 1943, he maintained that the quantity of coke required per corpse would have been no more than 3.5kg.”

165.No crematorium, anywhere, ever has achieved a figure in the region of 3.5 kg of coke per corpse. The best figure achieved anywhere in Nazi Germany for mass cremations was 35 kg, at Gusen camp. But Van Pelt was (in part) extrapolating backwards from the Bischoff document, which is probably a forgery.

166.It is also enlightening to compare both Evans’s comments on the Dresden death toll and their treatment by Gray J at 11.18 with Gray J’s acceptance of Van Pelt’s Auschwitz evidence:–

“How, asked Evans, would it have been possible to hive removed 200,000 bodies within a month? Moreover the claim in TB47 that 68,650 were incinerated in the Altmarkt defies belief, according to Evans, since it would have taken weeks and many gallons of gasoline to burn so many corpses in the available space.”

167.Every one of Evans’s arguments about Dresden mirrors those marshalled by Irving to refute key documents and allegations about Auschwitz, Birkenau, and the gas chambers. Irving’s arguments, which are the product of forty years’ investigation, were not accepted by Gray J, but when deployed by Evans, who has come to them only recently, they were accepted without a murmur.

Reichskristallnacht

168.Re 5.38: It is obvious that the Kristallnacht excesses were committed by the Nazis not because Grynzspan was a young Pole, but because he was a Jew. He was undoubtedly crazed.

169.Re 5.39: No evidence at all was before the Court that the 20,000 were “severely mistreated.” Many were unjustly imprisoned, but most were released almost at once.

170.Re: 5.49: Gray J appears to take no account of Irving’s rebuttal in his written submission of 21 March 2000 of the Defendants’ submission that the acts of arson which were to be halted were limited on Hitler’s orders solely to German property and shops [Geschaefte].

171. At 3:45 a.m. that same night the following telegram was issued by the Gestapo Section II, signed “p.p. Bartz”:

“The following orders of the chief of security police (Heydrich] are to be executed urgently and immediately:

1. according to the latest orders in accord with the Political Leaders all kinds of arson are to hindered;
2. all orders issued and yet to be issued in this affair are to be stamped secret,
3. without exception every Gestapo head office and office is to submit two reports on the execution of the Aktionen and their effects, particularly about egregious episodes, to the Gestapo section II. The first report must be submitted by this morning November 10 at 5 a.m. at the latest, the second report by seven a.m. this morning at the latest to the Gestapo HQ.
4. receipt of confirmation of this message is awaited urgently via the Blitz teleprinter Munich No. 47.767 (i.e. Heydrich’s telex number].”

172. In other words Heydrich, who is said in paragraph 5.3 to be acting at all material times on Hitler’s direct orders, is seen clearly ordering a halt to all acts of arson, not just acts against German property and shops.

173.As Gray J states at paragraph 5.53: “The contemporaneous documents created during the night of violence are likely to prove afar more reliable guide than the self-serving and untested accounts of Hitler’s staff.”

174.Yet Evans and his experts did not breath a word to the court about the existence of the 3.45 a.m. telegram, in breach of Evans’s clear duty to the Court; see the third of Cresswell J’s observations in The Ikarian Reefer [1993] 2 Lloyd’s Rep. 68 at 81 to 82.

175.Re: 5.52: This description of Hitler’s reaction is important. It is not borne out by the Goebbels diaries. It is however borne out by the testimony of Hitler’s adjutants. The diary cannot be slavishly followed. It is the diary of a liar, a propagandist, and, Irving argued, of the chief culprit himself. The fact that it was evidently written up not one, but two or even three days later, after the Kristallnacht episode, calls for additional caution in relying on it for chronology and content. It was furthermore in Goebbels interest to maintain that he had been acting at all material times on Hitler’s orders, although Rosenberg (writing in 1938), Von Hassell (1938), Groscurth (1938), Hinarnier (March 1939), Ribbentrop (1945), and Hitler’s adjutants Wolff (1952), 6rueckner (1945, 1947), Below (1947), Wiedemann (March 1939), all say that this was untrue.

176.Re: 5.53: Gray J refers to the fact that Hitler’s adjutants were testifying years after the war, and thus recalling events long ago. His Adjutant Fritz Wiedemann wrote his recollections in February 1939 on a steamship bound for San Francisco, after he had been dismissed Hitler’s personal staff (and was thus not likely to be biassed in Hitler’s favour). Himmler, Heydrich, Groscurth and many others referred to Hitler’s fury at Goebbels in contemporaneous documents, as most of the dates above indicate.

177.Re: 5.75 the phrase “next” is based on the German word nunmehr. Nunmehr is the element of “apprehension”, as in “What now!?” not as in “Let’s go home now.” Evans, whose grasp of vernacular German was shown to be deficient in the course of his cross-examination, did not know this. Gray J. failed to appreciate the point.

178.Re: 5.78 The Goebbels “stop order” was broadcast all morning, well before mid-day. Gray J’s suggestion at paragraph 5.85 that Evans stated that the “only record of the content of the broadcast gives the time of transmission as the afternoon” is not supported by Evans’s evidence.

Hitler’s Trial in 1924

179.Re 5.18: Irving was writing a book on Hitler’s War, not the so-called struggle period of the Nazi party before 1933. In a book on Hitler’s War one does not expect a more than passing reference to an unimportant episode that occurred in 1923.

180.Re 5.22: Mr. Justice Gray makes no reference to Irving’s position on this issue, as stated in Irving’s written submission of 21 March, namely that, while Hitler was at that time an obscure agitator on his way to prison, “Hoffmann was a police sergeant, testifying on oath and therefore seemed credible to me.”

181.Re: 5.24, “requisitioning of funds”. In Irving’s written, submission of 21 March he pointed out that:–

“In writing books for the general reader and a wider public than is attained by e.g. the expert witnesses in this case, I agree that I used vocabulary like ‘requisitioning’ in the way that GIs would talk about ‘liberating’ wristwatches from Nazi prisoners of war. My readers will have got the point.”

The Berlin crime statistics for 1932

182.Contrary to what is suggested at 5.32 Interpol did exist in 1932. According to the Encyclopaedia Britannica:–

“Interpol began in Europe, which is not surprising since many countries of Europe have common frontiers and a criminal can, for example, be in one of four other countries within an hour of having committed a crime in Belgium. After World War I there was a great increase in crime; one of the countries most affected was Austria, and the Viennese police president, Johann Schober, obtained his government’s support in 1923 for calling together representatives of the criminal police of other countries. The representatives of 20 nations met to discuss the problems facing them, and the International Criminal Police commission was formed that year. Vienna was the home of its first headquarters, and Schober became its first president. From 1923 until 1938 the commission flourished.”

183.Para. 5.35 is a grossly inaccurate rendition of Irving’s evidence on this matter. Irving admitted no error in citing wrong sources. More importantly, Evans did not (paragraph 5.33, last sentence) state that the other two references which Irving cited did not bear out his claim; Evans stated that he had not been able to locate Kiaulehn and Wieglin, the sources whom Irving used. (Day 29, 2 March, 2000, commencing at page 96).

Dresden

184.This peripheral issue (it has nothing to do with Hitler’s policy towards the Jews) was introduced by the Defendants in November 1999, at a time when the Claimant was struggling under the weight of preparing as a litigant in person for a heavy trial. It arises out of the first of Irving’s books, which he began writing in 1960, and published as long ago as 1963, and which was not substantially revised until the 1996 edition. During the intervening thirty-three years, Irving had little control over the text, which was in the hands of sub-licensees. Some of the figures which Gray J cites in his chronologies are from jacket blurbs, over which the author had no control whatsoever.

185.In November 1999, the Defendants must have known that there was no possibility of Irving going back in any detail to his 1963 material in time for a trial fixed for 11 January 2000. Lipstadt later explained the Defendants’ tactics in the Jerusalem Post of 6 June 2000:–

“There was always the possibility that Irving would drop out, and some of the pre-trial strategy was designed to keep pressure on him, in the hope that he would give up.”

186.1.86, Irving is said to have falsified the death toll in Dresden. See e_g at 1.3.124:–

“He [Irving] 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.”

187. Irving had donated his records to the Dresden city archives in 1965. Microfilm copies were disclosed to the Defendants. Among evidence thus disclosed and produced to the Court were letters from Hanns Voigt, a wartime Dresden city official in charge of maintaining death lists, who gave his best estimate of the death roll at 135,000, the figure used by Irving; and a letter from Dr Max Fünfack, a wartime medical officer in Dresden, stating that General Mehnert, the city commandant and Professor Fetscher, chief of the city’s civil defence, had at that time given him death roll figures of around 140,000. Mr Irving also produced a book with a foreword by Dr Konrad Adenauer, Germany’s post-war Chancellor, with this footnote: “The attack on the city on Dresden, which was filled with refugees on 13 February 1945 alone cost about 250,000 dead,” and a report by US Air Force medical officers Desaga and Hurd, in the records of the US Strategic Bombing Survey, giving a similar figure. “The most badly damaged town, in their opinion, is Dresden with an estimated casualty list of 250,000.” Prof. Evans was cross-examined on these two sources on Day 23, 21 February 2000, pages 197 et seq.

188. It is submitted that Irving fairly used the material available to him between 1960 and 1963 on this side issue.

Extremist Associations

189.It is inevitable that a researcher into the history of the Third Reich will meet and associate with many Nazis: they are bound to be amongst his sources. Irving’s submissions on the law in this regard are to be found at paras. 35 to 41 above.

190.The video to which Gray J refers at 13.113, saying that: “Irving can be seen watching assorted groups, many of them in uniform, march towards the meeting place,” shows nothing of the sort. All forms of political uniform are banned in Germany. None was worn.

Racism and Anti-Semitism

191.These much publicized allegations go to alleged motive only, and if it is found on appeal that Irving did not falsify, pervert etc. the historical record, the citation of regrettable observations made under gross provocation in the course of meetings under attack from violent opponents, let alone one nineteen word “racist” ditty found after much searching amongst the twenty million or so words of his unpublished diaries are of no materiality whatsoever to the case.

ADRIAN DAVIES Chambers of Mr Martin Burr Temple Chambers 3/7 Temple Avenue London EC4Y ODA