Irving v. Lipstadt
Holocaust Denial on Trial, Appeal Judgment: Electronic Edition, by Lord Justice PillTable of Contents
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The approach of this Court
21. We consider the approach which this Court should take to the judge's consideration of the evidence, his conclusions and verdict. By reference to the statement of Baggallay JA in The Glannibanta, already cited, Mr Davies invites the Court to weigh the conflicting evidence for itself and draw its own inferences and conclusions. We accept that there are some issues which turn upon the construction of documents where this Court is in as good, or almost as good, a position to assess the evidence as was the trial judge. We say almost as good because the comments of witnesses upon the documents and witnesses' assessment of the context in which the documents came into existence deserve weight. On the issues as a whole, the judge's assessment of the credibility and reliability of the historians was in our judgment a significant factor in the case. In the end, the judge had to consider whether the applicant was a reputable historian. In reaching his conclusion, he would inevitably have to assess the approach of the applicant to the source material he had considered and the approach of Professor Evans, the main protagonist for the respondents. The fact that each of the parties subjected the historian on the other side to detailed and lengthy cross-examination illustrates the importance of this aspect of the trial. It may have been more a question of reliability in terms of historiography than of credibility but, in deciding whether the respondents' allegations are justified, the judge who heard the oral evidence and the manner in which it was given was in a good position to assess it. Having said that, this Court can be expected to scrutinise carefully the reasoning of the judge and submissions made as to the source material on which it is based.