Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 7: Electronic Edition

Pages 91 - 95 of 199

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 1 MR JUSTICE GRAY:     Well, you tell me, what --
 2 MR IRVING:     I would certainly challenge that.
 3 MR JUSTICE GRAY:     -- categories of evidence you say you really
 4have no knowledge of?
 5 MR IRVING:     For example, the entire records in Moscow. I am not
 6an Holocaust historian, my Lord. I thought I had brought
 7this matter across to your Lordship satisfactorily that I
 8am know as an historian and a biographer of the top Nazis
 9and that the Holocaust is very much a section of that
10material. But one cannot, after all because one is
11writing about the atomic bomb learn nuclear physics. One
12would not be considered to be negligent that one had not
13become a Nobel Prize winning nuclear physicist before
14writing about the history of the atomic bomb, if I may say
15so. I am asking your Lordship to keep this negligent
16element before yourself and you say to yourself, this does
17not go to issues as pleaded, and this is just an attempt
18to bring in material for the newspapers, put it like that.
19 MR JUSTICE GRAY:     Let me ask you this question, and do not
20answer if you do not want to, but if I were to come to the
21conclusion that there is a whole range of formidable
22evidence of one kind and another.
23 MR IRVING:     Yes.
24 MR JUSTICE GRAY:     Camp officials, eyewitnesses, scientific
25evidence, evidence of construction at the gas chambers and
26the like; all of which was there, but you paid no

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 1attention to it, is that something you would accept? Is
 2that the way you put your case? That you went for broke
 3on the Liechter Report.
 4 MR IRVING:     It depends upon the degree of intensity which would
 5have been appropriate. If I was intending to go on, for
 6example, a BBC talk show and I was likely to be asked
 7about Auschwitz should I therefore spend $5 million on
 8sending researchers into the archives around the world?
 9It is a degree of proportionality which comes into it, my
10Lord. I am sure your Lordship appreciates that point and
11bear it constantly before yourself.
12 MR JUSTICE GRAY:     Yes, but I am not sure you have really quite
13grasped the nettle of the question; is it your position
14that the Defendants really are not entitled to rely on the
15body of evidence that I have just listed for you because,
16although it was available you did not refer to it; you did
17not familiarize yourself with it?
18 MR IRVING:     I am not interested to hear Mr Rampton justify
19doing precisely that.
20 MR JUSTICE GRAY:     Well, I think he will find it difficult to do
21so unless you have made clear what your position in
22relation to these various categories of evidence is. If
23you are saying, "yes, I accept it is there and I simply
24did not attach any weight to it"; then he may say, "well,
25what is the point of calling the evidence?" That may not
26be right, but he may say that. That is why I am asking

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 1you. I am trying to get you to come clean, as it were,
 2what your stance is in relation to this evidence.
 3 MR IRVING:     I am mortally wounded by the suggestion that I am
 4not coming clean on this.
 5 MR JUSTICE GRAY:     I did not mean that in any pejorative sense.
 6You see because this is really what the argument is, is
 7this evidence relevant? If you say, "well, I do not
 8quarrel with it, I hear what you say about it all being
 9there, but it just did not feature in my thinking about
10Auschwitz", well and good.
11 MR IRVING:     My Lord, what I have had to do, because Auschwitz
12has bulked so large in the Defendants' case I have to
13become something of an expert. I have had to get involved
14with consultants and discussed the issues with them and
15learn all sorts of things that I had no need to or desire
16to learn at the time I wrote these books, or at the time I
17made the utterances. I do not think that should have been
18necessary. I would have hoped that your Lordship would
19have ruled at a relatively early date in this trial -- and
20we are still at an early date in this trial that you will
21not hear evidence, my Lord, I would ask you to bear this
22in mind, that you will not hear evidence that goes only to
23the imputation of negligence and that you will only hear
24evidence that goes to the imputation of deceit.
25 MR JUSTICE GRAY:     But you see, you say it comes only into
26the category of negligence, but if you are making

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 1pronouncements about Auschwitz in what the Defendants say
 2are offensive terms of denying the gassing happened; are
 3not the Defendants entitled to say, well, that really
 4flies in the face of the evidence and anyone who is
 5prepared to make those pronouncements is not just
 6negligent, he is deliberately deceiving himself.
 7 MR IRVING:     Very well.
 8 MR JUSTICE GRAY:     I do not know whether that is the way they
 9put the case or whether it is not. I think it may be.
10 MR IRVING:     I accept that but then the element of
11proportionality comes into it.
12 MR JUSTICE GRAY:     Yes.
13 MR IRVING:     To make that kind of pronouncement one is not then
14required to spend $5 million research, one is required to
15inform oneself to an adequate degree. But I still ask
16your Lordship to be on the alert every time that
17Mr Rampton either implies or actually says he ought to
18have known this, to say to yourself, yes, but on the basis
19of proportionality should he really have gone to that
20degree? Should he really have done that depth of
21research? Was he really expected to fly to Moscow and
22bang on the door and say "let me in"?
23 MR JUSTICE GRAY:     Yes, do not think I am not taking the point
24you are making.
25 MR IRVING:     Because that goes purely to the negligence issue
26and not the deceit issue, which is the only one they have

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 1pleaded. My Lord, I must emphasise the fact they have not
 2pleaded negligence. It was open to them to plead
 3negligence at the time that they drew up their pleadings.
 4I am not criticising learned counsel at all for the way
 5they have drawn their pleadings, but if they intended to
 6plead negligence the way that they have been hinting at
 7throughout the first six days of this trial, then they
 8should have pleaded it.
 9 MR JUSTICE GRAY:     I want to take a bit of time on this because
10I think this may be really quite important to try and see
11where we are actually going, but just on Auschwitz and
12tell me if you are not able to deal with this, but just
13take the category of "Camp Officials" I cannot immediately
14put my ...
15 MR IRVING:     The eyewitnesses?
16 MR JUSTICE GRAY:     Well, I was thinking more of the camp
17official eyewitnesses, but take them, and I think there
18are probably about ten or maybe a dozen of them, something
19like that.
20 MR IRVING:     My Lord, we shall be --
21 MR JUSTICE GRAY:     Now, the last thing we want to do is plough
22through each individual account if that really is not
23being to be necessary. Are you saying in relation to
24them, by way of an example, well, I appreciate that they
25have said what they are recorded as having said, but I did
26not know about it when I said what I said in Australia in

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