Irving v. Lipstadt


Holocaust Denial on Trial, Outline submissions on behalf of the First Defendant: Electronic Edition, by Richard Rampton

Table of Contents

(1) Could the fresh evidence have been adduced at trial?

7. A short chronology showing some of the contact between Irving and Rudolf is attached to these submissions.
8. So far as Rudolfs evidence is concerned, the position appears to be this:
  • 8.1 Paragraph 6 of the skeleton argument (dated 1st March 2001) served on behalf of Irving in support of his application to adduce this evidence makes it clear that Rudolf's witness statement is founded upon an earlier analysis by him of "the improbability or outright impossibility of the established historiography of Auschwitz". Irving knew of that analysis and had a copy of it (he posted a complete copy of the 1993 Rudolf Gutachten on his website in July 1999, but the evidence is that Irving was aware of it considerably earlier). There is nothing of any significance in Rudolf's current witness statement which is new; virtually all of it is based on material which was available before trial (see the witness statements of James Libson, Mark Bateman and the attached chronology).
  • 8.2 Irving could have applied to put in an expert report from Rudolf at trial, but he did not do so. He did put in evidence (without objection from the Defendants) what purported to be a short account of the Rudolf Report, written by someone other than Rudolf. There is no   explanation of his failure to apply to submit in evidence the full report itself (or any subsequent witness statement).
  • 8.3 At pages 333 (line 12) to 334 (line 7) of his witness statement, Rudolf makes it clear that he would have appeared under subpoena as an expert witness for Irving, had Irving asked him to do so. He was not asked to appear as a witness, although he was asked to assist as an adviser. He supplied Irving with comments, which Irving used to cross-examine Professor van Pelt (again, the material supplied appears to form part of his current witness statement).
9. Thus the decision not to call Rudolf as a witness and/or to seek to put in a written statement from him and/or the original Rudolf Report was entirely Irving's own decision. it is therefore clear that the whole of Rudolf s evidence could have been before the court (and that some of it was before the court). It follows that there is no reason why it should now be admitted. On the contrary, there is good reason why it should not be (see the observations of Hale LJ)