إرفنج ضد ليبستدات

Appeal

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

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Refusal of leave by Sedley

96. Sedley LJ refused leave on paper on 18 December 2000 for the following reasons: "
  • 1. I much regret the length of time that it has taken me to come to this decision, not least in view of the pressure that I put on the parties to submit their representations expeditiously. Reaching a conclusion on the application has been the work of days, not of hours.
  • 2. I am prepared to enlarge time on the basis of Mr Adams' affidavit of 16 May 2000, and to permit amendment of the notice of appeal as asked.
  • 3. What follow are my essential reasons for refusing permission to appeal. They do not cover every element advanced and contested, although I have read and re-read both the submissions and the judgment. They address what I consider to be the key issues.
  • 4. I bear in mind, as Gray J very clearly did, that when a professional historian claims, correctly, that he has been defamed as a falsifier and a bigot, a defence of justification places a heavy burden on the defendant who advances it. There is much about which two people can legitimately differ, and differ angrily, without either of them meriting such a   description. But by bringing this action on the pleaded meanings the applicant offered a challenge, and in Gray J's judgment the defendants met it.
  • 5. I accept that this court is probably as well placed as Gray J to evaluate the documents and the expert evidence. What it cannot do, and is not asked to do, is to ignore or modify the judge's appraisal of the applicant himself. This is not, as the grounds suggest, peripheral. As Gray J in Chapter XIII shows with clarity, the applicant's disposition is the cement between the bricks. What might in another historian have been casual misreadings of evidence emerge in the applicant's case as sedulous misinterpretations all going in the direction of his racial and ideological leanings. Hence the verdict for the defendants.
  • 6. "Holocaust denial" may be a comprehensible phrase, but it has a particular register about which the judge was entitled to hear expert evidence. With or without such evidence the meaning he assigned to the phrase at J 8.3-4 was plainly right. Holocaust denial means not necessarily a blank refusal to acknowledge a Nazi policy of mass murder of Jews and other minorities but a systematic endeavour, by marginalising and excusing what happened, to accuse those who insist upon it of being Zionist propagandists. This is not the law's concern so long as it stops short of incitement to racial hatred: in the UK there is no law against Holocaust denial, and it is a fundamental liberty not only to be contentious but to be wrong. I bear in mind too that anti-Zionism and anti-semitism are not necessarily the same thing.
  • 7. Here, however, the applicant has invoked the law by suing his antagonists. In justifying their libel, the defendants have focused upon two particular forms of Holocaust denial in his work: what I will call the aberration theory, predicated on Hitler's ignorance of and/or opposition to mass extermination of Jews, and the exaggeration theory, predicated on deliberate inflation of the numbers killed at Auschwitz. The first, they say, seeks to excuse what happened; the second to marginalise it.
  • 8. The Schlegelberger memorandum is the applicant's preferred evidence for the aberration theory. The memorandum by itself (see J 5.151-169) might have stood simply as an example of a controversial document about which honest historians could differ -- indeed the judge said so (J 13.36). But the applicant's adherence to it as a "diamond document" came in the context of a damning and justifiable finding (J 13.26-31) that he had repeatedly misrepresented documentary evidence in order to absolve Hitler of anti-semitism; and it is against the backdrop of this ubiquitous handling of Third Reich material that the applicant's use of the document emerges as part of a   predetermined misreading of evidence which could not, as the judge found, be objectively justified.
  • 9. The Auschwitz materials are central to the exaggeration theory. Here too the historical record is inevitably incomplete and in places unreliable. But here too the applicant has been betrayed by his own method, notably his reliance on the discredited Leuchter report. The judgment (J 8.17) sets out the solidity of the applicant's denial of mass homicide at Auschwitz, and sets in that context his recent focus on the "holes in the roof" issue (J 13.81-3). I accept readily that the latter argument may be none the worse for coming late in the day; but the evidence that there were no holes for the admission of cyanide pellets is at best inconclusive against the potent evidence that people were gassed there in tens of thousands. The controversy about methods and numbers may legitimately remain; but what the applicant has done is demonstrate once again his willingness to sacrifice objectivity in favour of anything which will support his chosen form of Holocaust denial.
  • 10. Van Pelt's evidence enters into this aspect of the judgment. Van Pelt was heard as a cultural historian with special knowledge of Auschwitz and its architecture (J 4.17(ii); G 30). What he said (J 7.123-4) about the use of Zyklon-B was in part arithmetic and in part comment; probably it was not necessary to have an expert of any kind to put this forward, but its acceptance by Gray J was a matter of logic and did not depend on any expertise professed by Van Pelt.
  • 11. In these circumstances the applicability of s.5 of the Defamation Act 1952 was in essence a jury question: were the false allegations that the applicant had agreed to share a platform with terrorists, had a self-portrait of Hitler above his desk and had misappropriated archive material sufficient to damage the reputation which was not his? The negative answer given by Gray J was entirely open to him, and that, I apprehend, is enough. If, however, this court were to take the decision for itself, I see no realistic prospect of its arriving at a different answer. The claimant had played for high stakes on the central issue of his entitlement to be regarded as a genuine historian and had lost on grounds so damaging that they left no real room for discrete damage by the unfounded allegations.
  • 12. The experts' fees may be thought high -- depending on how much work they did -- but the suggestion that they were paid to testify as they did is without visible foundation.
  • 13. If a newspaper comments impermissibly on a current trial the Attorney General has power to bring contempt proceedings against it. But where the trial is by judge alone it takes cogent evidence to establish a sufficient risk that he has   been influenced -- especially when the suggestion is that he has been driven by a fear of adverse press comment. I know of nothing in the present case which comes near this threshold.
  • 14. (Deals with stay on enforcement of the costs order.)"
We agree with those reasons save only in our acknowledgement that the judge was in our view in a better position to evaluate the oral expert evidence. On some issues, for example experts' fees (paragraph 12 of Sedley LT), we have not found it necessary to revisit the question.