إرفنج ضد ليبستدات

Appeal

Holocaust Denial on Trial, Appeal Judgment: Electronic Edition, by Lord Justice Pill

Table of Contents
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Procedural issues

22. An issue also arose as to the scope of the evidence which the respondents' expert witnesses, and in particular Professor van Pelt, were entitled to give. Professor van Pelt was introduced as a Professor of the History of Architecture at a Canadian university. It emerged that he was not a qualified architect and it is submitted on behalf of the applicant that Professor van Pelt should not have been allowed to give evidence on architectural questions, such as the design of the buildings at Auschwitz. He described himself as a cultural historian. It is further submitted that, even if qualified to give evidence about the design of buildings, he should not have been permitted, when questions arose as to the chemistry involved in gassing, to give evidence about that.
23. We see no merit whatever in the first of these submissions. Professor van Pelt plainly had considerable knowledge and expertise in the design of buildings and the uses to which they can be put. The absence of a professional qualification in architecture did not preclude him from giving evidence on architectural matters when the issues were those in this case. One does not have to be a qualified lawyer to express views on legal history. There must of course be a limit to the extent to which someone whose profession is that of historian can express views of his own on highly technical matters. The witness is however entitled to consult, refer to and rely on source material in support of an opinion. Military historians frequently express opinions about the effectiveness of weapons and the effect of their use in battle and can do so without their being experts, for example, in ballistics or metallurgy.
 
24. That being so, such force as Mr Davies's second submission may have had was destroyed by his refusal to entertain discussion of Professor van Pelt's source material. Mr Davies stated that he had not come to the hearing prepared to argue the merits of van Pelt's report. He declined to examine, for example, the documents, mentioned by the judge at 7.124, on which Professor van Pelt had relied in expressing the opinion that the quantity of coke required per corpse at Auschwitz would have been no more than 3.5 kg. Nor was he prepared to analyse the information on the basis of which the applicant had expressed the opinion that the appropriate figure was 35 kgs. This was not a subject for evidence from either party, Mr Davies submits. We reject that submission.
25. We also mention at this point that there were before the Court two applications to call fresh evidence in support of the application. The first, made well before the hearing, was to call evidence from Mr Germar Scheerer (born Rudolf), who holds a diploma in chemistry, and Mrs Zoe Polanska-Palmer, who was detained in Birkenau Camp. The respondents had prepared voluminous evidence in reply. In the event, that application to call fresh evidence was not pursued. We express our dismay at this combination of events; the preparation of very detailed evidence (exposing the respondents to great expense in preparing a reply and the members of the Court to considerable pre-hearing reading) and the withdrawal of the application.
26. We were not prepared to entertain an application made by Mr Davies in the course of the hearing that a series of photographs, said to be self-explanatory, dealing with the issues as to the Prussian blue staining of fabric exposed to hydrogen cyanide should be admitted. That was a subject considered in the proposed additional evidence it was decided not to seek permission to adduce. To permit admission of photographs alone would have been unfair and could have been very misleading.
27. The second application was made in the course of the hearing. It was wished to call evidence of the contents of a book written by Professor Evans, published early this year and known to the applicant in March. The application was not reduced to writing and we did not see the book but the allegation is that the work demonstrates Professor Evans's ill-will towards the applicant. We refused the application first on the ground of its extreme lateness, which was an important factor having regard to the allegation to be made; second on the ground that the alleged attitude of Professor Evans had already been raised at the trial and the judge had been in a position to assess, with that in mind, the lengthy evidence he had given; third on the ground that the proposed additional evidence was not, and could not be contended to be, crucial on the central issue having regard to all the material available.
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