Irving v. Lipstadt
Holocaust Denial on Trial, Appeal Judgment: Electronic Edition, by Lord Justice PillTable of Contents
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The test to be applied
20. In stating his conclusions on the defence of justification, the judge first set out the claims made by the respondents, their extent and the test to be applied. We set out the relevant paragraphs in full. Mr Davies accepts that in paragraphs 13.3 and 13.4 the judge has correctly stated the test to be applied.
- "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 propose therefore to consider first whether the Defendants have made good their claim that, in what he has written and said about the Third Reich, Irving has falsified and misrepresented the historical evidence.
- 13.2 There are several aspects to this. The falsification and misrepresentation alleged by the Defendants relate to (a) the specific individual criticisms of Irving's historiography which are addressed in section v. above; (b) his portrayal of Hitler, which is dealt with at section vi.; (c) his claims in relation to Auschwitz covered in section vii. And, finally, (d) the bombing of Dresden which is dealt with in section xi.
- 13.3 The question which I shall have to decide is whether the Defendants have discharged the burden of establishing the substantial truth of their claim that Irving has falsified the historical record. In this connection I should repeat the caveat expressed at the beginning of this judgment: the issue with which I am concerned is Irving's treatment of the available evidence. It is no part of my function to attempt to make findings as to what actually happened during the Nazi regime. The distinction may be a fine one but it is important to bear it in mind.
- 13.4 If the charge of misrepresentation and falsification of the historical evidence is substantially made out, there remains the question whether it was deliberate. Irving rightly stresses that the Defendants have accused him of deliberately perverting the evidence. For their part the Defendants recognize that it is incumbent on them to establish, according to the appropriate standard of proof, that the misrepresentation and falsification were motivated by Irving's ideological beliefs or prejudices. In this context, I shall consider the submission made by Irving that he had been guilty, at worst, of making errors in his handling of the historical record. As I will explain in assessing Irving's motivation, I will also take into account the evidence of the public statements by Irving in which he allegedly denied the Holocaust; the evidence upon the basis of which the Defendants accuse him of anti-semitism and racism and the evidence of his alleged association with right-wing extremists."