Irving v. Lipstadt
Holocaust Denial on Trial, Statement of Mark David Bateman: Electronic Edition, by Mark David BatemanTable of Contents
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Availability of the Evidence: Rudolf
9.Before looking at the Rudolf witness statement in detail it is important to note that the Claimant's counsel, Adrian Davies stated at paragraph 6 of his Skeleton Argument in support of the application to adduce new evidence (1st March 2001) that the Rudolf witness statement is "founded upon the same author's earlier analysis of the improbability or outright impossibility of the established historiography of Auschwitz". Rudolf's "earlier analysis" was published as the "Rudolf Gutachten" ('Rudiger Kammerer, Armin Solms (ed.), Das Gutachten, Gutachten uber die Bildung Und Nachweisbarkeit von Cyanideverbindungen in den 'Gaskammern' von Auschwitz') in 1992 (in German). It is clear that the Claimant was aware of Rudolf and his report from an early stage (see MDB1). An English version of the full Rudolf Report was available from 1993. Further, the Claimant made a 'complete illustrated copy' of the Rudolf Gutachten available through his own website (ww-wipp.co.uk) in July 1999. (I note that according to Rudolf, his Report was 'freely accessible on the Internet since end of 1997': see MDB 3 tab 2 page 1 6). However, the Claimant never applied to adduce that report in evidence at trial He could easily have done so. There is no explanation of his failure to do so.
10.I note that at paragraph 8 of the Claimant's counsel's skeleton argument of 1st March 2001 he suggests that the Claimant handed up a copy of Rudolf's report to Gray J and that (paragraph 9) "to that extent the Rudolf Report was probably in evidence anyway" the Claimant, at paragraph 1 of his witness statement of 28th February 2001, says that he 'put in evidence before the court the published version of a scientific rrport which he had written'. It is hard to see how a Claimant can apply to adduce as fresh evidence a report which, on his own case, was handed to the trial judge in the course of the trial. However, what was handed up to the judge was not the full Report (which is over 100 pages long), but a 16-page document "A Scientific Sensation: The Rudolf Report: A discussion of the Rudolf Report on the Formation and Demonstrability of Cyanide Compounds in the Gas Chambers at Auschwitz, with additional research findings on the Holocaust", published by Cromwell Press in 1993 a copy of which is at MDB 1 tab 3 (the second page of which refers to the availability through the same publisher of the 120-page full Report in German. The Claimant is a fluent German speaker). The Defendants made no objection to that document being put before the judge but did make clear that this document was not The Rudolf Report (see trial transcript Day 9 pages 24 and 23).
11.It is clear that the Claimant could have applied to put in evidence the full Rudolf Report, had he wished to do so. Moreover, it appears that he could have brought Rudolf as a witness to the court, had he asked. The Claimant says nothing in his witness statement about any request to Rudolf to give evidence, stating only the Claimant's own conclusion that it would have been 'impractical' to call him at trial, in view of the 'personal risks' to which he would have been exposed if brought to London. It appears, however, that Rudolf would have been willing to appear as an expert witness. Rudolf has written about the Claimant's request (to which he acceded) that he give evidence at trial; that first request, made in 1996, was not followed up by the Claimant. In 1999, Rudolf supplied assistance to the Claimant, which the Claimant received before cross-examining Professor van Pelt. Then in January 2000, it appears that the Claimant asked Rudolf to attend the trial, to give technical assistance as an adviser, but did not ask him to appear as witness. Rudolf confirms that he would have been willing to appear as a witness, had he been asked to do so (see MDB 1). In his. witness statement, Rudolf says this (page 333) (emphasis added):
'When David Irving asked me in January. 2000 to assist him during his trial as an expert sitting at his side, to help him answer scientific and technical questions, I declined. I knew that I was a hunted man in England, so the risk for me if I appeared was high. I would have risked appearing in answer to a subpoena, as I believed (whether rightly or wrongly, as a matter of law) that if I appeared in answer to a subpoena, I would have had some rights at least as long as I was in the witness stand. Appearing as a witness, instead as a private adviser on Irving's side, also would have had the advantage that I could have presented my findings for the first time in front of a court of law and a wider public, which alone is worth risking my freedom."
12.It appears that what is said in Adrian Davies' skeleton argument (paragraph 7), namely that the Claimant "did not seek a direction for leave to adduce Rudolf's expert evidence, because he knew that Rudolf would be unwilling to attend the trial for the reasons that appear by paras. [ ] to [ ] of Rudolf's affidavit" is incorrect, if it is intended to suggest that Rudolf was unwilling to attend trial as a witness (whatever the position may be so far as attendance as an adviser is concerned). The skeleton argument, apparently prepared without sight of the final version of the Rudolf witness statement, has not been amended. Significantly, the Claimant does not state that he asked Rudolf to attend trial or that Rudolf was unwilling to attend trial (rather, that the Claimant "considered" it impractical to bring him to London). The Claimant suggests that Rudolf is now willing to attend the hearing, without explaining what has changed (other than that the Claimant lost at trial). The Claimant had other witnesses attend in answer to subpoena.
13. The three documents in MDB3 are of particular interest. They are:
- (1) A 'Critique of Chemical Claims Made by Robert Jan Van Pelt' (the 'van Pelt Critique') (see MDB 3 tab 3), dated 11th February 2000 (Germar Rudolf, Hastings, last revised: February 11, 2000', see pace 18). This document is now available on the 'Radio Islam' website ('http://abbc.com') at 'http://abbc.co/aaargh/engl/technical/GronVPa.html'.
- (2)A 'Critique of Claims Made by Robert Jan Van Pelt' (the 'van Pelt Critique 2') (see MDB 3 tab 2), dated April 10 (Germar Rudolf, Hastings, last revised: April 10, 2000', see page 30). This is posted on the 'Vho' website (http://www.vho.org/GB/c/GR/RudolfOnVanPelt.html). The date cannot be entirely accurate, as this document refers to the Judgment on 11' April 2000
- (3)A 'Critique of the "Findings on justification" by Judge Gray' (the 'Gray Critique') (see MDB 3 tab 1). The Gray Critique is an 18-page document that purports to deal with many of the issues dealt with by the Rudolf Witness statement and which uses similar headings and layout. In this, it appears to be an earlier draft of Rudolf's current witness statement. The Gray Critique is dated 20th April 2000 (nine days after Judgment, see page 16) and is also posted on the 'Vho' website (http://vho.org/GB/c/GR/CritiqueGray.html). The Gray Critique refers the reader to the Critique of van Pelt and carries 'hyperlinks' to take you to it (see for example page 6 of the Gray Critique 'I hate repeating myself about this topic, so I refer to what I said in my critique of van Pelt's claims.).
14. The significance of the three documents at "MDB 3" is this:
- (1) It is clear that the van Pelt Critique was available for trial. The date shown for the last revision is 11th February 2000, a month or so before the end of the trial. However, the Critique would have come into existence before that date. The Claimant received van Pelt's expert report at the end of July 1999 and solicited help in responding to it immediately. The fact that the Critique refers to 'Hastings' suggests that that is where Rudolf worked (or, at least, began his work) on the Critique: he was, as he stated in his witness statement, in Hastings until sometime between October 1999 and November 1999 (see page 331). It seems likely that Rudolf had received a copy of van Pelt's report from the Claimant (the Claimant says nothing as to whether this is or is not the case) and commenced work on a detailed critique of it before the trial began. An earlier version of this Critique is likely to have been available to Irving: Rudolf states that he was able to get his comments to the Claimant "shortly before the cross examination of the most important witness, Professor van Pelt." (see article by Rudolf 'Jagd auf Germar Rudolf' "MDB 4" tab 1 page 18 and translation on the following page). That cross-examination began on January 25th 2000. (The Critique was unlikely to have been posted on any Internet website until after the end of that cross-examination on 28th January 2000). Material that was put into a Critique during the trial could have been put forward in the form of a report or witness statetnent. Further, it is highly likely that material which was put into the Gray Critique/van Pelt critique 2 within days of the judgment must all have been available for trial.
- (2)Although much of the text in the Rudolf witness statement has been lifted word for word from the van Pelt Critique or van Pelt Critique 2, the footnoted sources given for the same text are often changed. In some instances, where it would have been clear from the van Pelt Critique that the source material, was available before trial, the source is altered.
- (3) It is clear from the Gray Critique that the Claimant asked Rudolf to prepare evidence for use at an appeal no later than 20th April 2000 (see page 1). The Claimant did not inform the First Defendant or the court of any intention to introduce new evidence until 17th January 2001. Even then, despite repeated requests (see correspondence at MDB 2) we were not informed of the nature of this evidence until it was provided to us on March 2001.
15. The Claimant has given no assistance in providing Rudolf's sources for the material in his witness statement. At MDB 2, the correspondence between the solicitors on this matter is set out. On 7th, 9th and 20th March 2001 this firm asked for copies of all of the source material to which Rudolf referred in preparing his witness statement. None of this has been provided, on the grounds that it is said that Rudolf does not have that material (see Nigel Adams & CO's letter dated 21st March 2001). We were asked to limit our request to those documents that were essential. In response we asked, on 23rd March, for a list of what Rudolf did have. On 28th March we were told 'we have sent Mr Rudolf a further e-mail informing him of your request for a list of those documents that he does have and made clear the urgency. We repeated our request on 3rd April and were told on the 5th that '...we axe still waiting to hear from Mr Rudolf with details of the documents he has in his possession...'. We repeated our request on the 5th April and were told on the 11th April that 'all or most' of the documents required were in Germany and that Rudolf is 'severely hampered in complying with your request as a result of the persecution he has suffered and having to flee his own country.' We were again asked to notify those documents we considered essential. On 17th April we asked for a timetable within which Rudolf could provide a list of documents in his possession, the date of publication of each document refereed to in Rudolf's Affidavit and confirmation of when Rudolf first wrote his witness statement. We also asked for one document, the 1993 Rudolf Report. We have received no substantive reply to any of these points, nor the 1993 Rudolf Report despite repeated requests. As is made clear below and in James Libson's witness statement, there is nothing new (post-trial) in Rudolf's source material, such that his witness statement could not have been available for use at the trial. On the contrary, it could have been used by the Claimant, had he decided to do so.
16. Penguin submits that it is clear from paragraphs 5 to 13 above that the Claimant cannot satisfy the first requirement of the Ladd v Marshall test in respect of the Rudolf witness statement. The court should refuse to admit that evidence on this ground alone.
17. In the paragraphs below, I set out further detail as to the availability of the evidence contained in the Rudolf witness statement before and at trial.
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