Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 11: Electronic Edition

Pages 6 - 10 of 205

<< 1-5201-205 >>
    Perhaps I can just sketch the character of the
 1this case, the publication complained of, and these
 2organizations who provided the material, that they did so
 3following an agenda and that this may well have tainted
 4the information which the author and the publisher relied
 6 MR JUSTICE GRAY:     It is not immediately obvious to me how that
 7really impacts on the questions I have to decide.
 8 MR IRVING:     Very well.
 9 MR JUSTICE GRAY:     But let us wait and see how it can comes out
10when he comes to give evidence.
11 MR IRVING:     That brings us rather neatly, my Lord, to the
12question which I was going to discuss, if I might, for
13three or four minutes this morning which is the burden of
14proof. I have handed your Lordship just two quotations
15from documents with which I am sure your Lordship, being
16an eminent barrister in your previous incarnation, will be
17thoroughly familiar with.
18 MR JUSTICE GRAY:     Yes.
19 MR IRVING:     In Gatley we learn that the standard of proof in a
20civil procedure is not just the balance of probabilities
21really, but there is a sliding scale, depending on how
22grave the allegations were.
23 MR JUSTICE GRAY:     I am very familiar with that line of
25 MR IRVING:     "The gravity of the issue", if I may read these
26three lines, "becomes part of" -- this is Ungoed-Thomas in

.   P-6

 1Re Dillows Will Trust -- "the circumstances in which the
 2court has to take into consideration in deciding whether
 3or not the burden of proof has been discharged. The more
 4serious the allegation, the more cogent is the evidence
 6     The reason I am saying this is because dealing
 7with crematorium No. (ii) and the mortuary No. 1, which
 8the Professor in evidence has agreed is really the pivotal
 9point of the whole Holocaust allegation ----
10 MR JUSTICE GRAY:     I do not think he has, but, anyway, leave
11that on one side.
12 MR IRVING:     That is my submission, as your Lordship is aware.
13 MR JUSTICE GRAY:     I know it is your submission.
14 MR IRVING:     We are being offered evidence which, in my
15submission, falls far short so far, and it may well be
16that the witness will come up in the remainder of my
17cross-examination with evidence which satisfies these
18criteria ----
19 MR JUSTICE GRAY:     I do not want to get side tracked into an
20argument at this stage. Let me make it clear that my
21interpretation of those authorities is that the issue
22where the standard of proof may be higher than the
23ordinary civil standard of proof, is the issue whether the
24Defendants have justified their allegation against you.
25We do not start applying different standards of proof to
26the individual items of evidence as to whether or not

.   P-7

 1there were gas chambers at Auschwitz. That has got
 2nothing to do with the authority that you just referred
 3to. That applies only to the standard of proof to be
 4applied in relation to the plea of justification.
 5 MR IRVING:     But, surely, the allegations about the individual
 6mosaic stones of their own Defence and plea of
 7justification have to meet the same criteria as the
 8overall allegations about myself?
 9 MR JUSTICE GRAY:     Again, so that you are clear the way I am
10thinking at the moment anyway, the overall question I have
11to decide is whether you have conducted yourself in the
12way that an honest, conscientious historian would conduct
13himself. The question that you have not is, I agree, a
14serious suggestion to be making, so it may require to be
15proved to a slightly higher standard than the ordinary
16civil standard. But one tests the proposition against the
17totality of the evidence, and the evidence may be good,
18bad or indifferent, if you see what I mean?
19 MR IRVING:     Your Lordship will pardon me for occasionally
20waving a red flag when I am worried about ----
21 MR JUSTICE GRAY:     I think you have done that very effectively
22and I have your point.
23 MR RAMPTON:     Can I wave my own, I do not think red, perhaps
24amber flag? I have said it before and I had the
25impression your Lordship agreed with me, but I will say it
26again because I do not know that Mr Irving has understood

.   P-8

 1it or that, if he has, he agrees with it. It is this.
 2I do not undertake in this court the burden of proving
 3that the Holocaust happened.
 5 MR RAMPTON:     Or that there were gas chambers in Auschwitz.
 6I undertake the burden of proving that Mr Irving made the
 7statements he did about the gas chambers in Auschwitz from
 81988 onwards without any proper foundation for what he
10 MR JUSTICE GRAY:     That is really what I was seeking to put to
11Mr Irving, but I think you have put it more clearly and,
12if I may say so, correctly.
13 MR IRVING:     That is very helpful, my Lord. In other words, it
14is the "ought to" allegation rather than the "had before
15him but disregarded", if your remember, the negligence
16rather than the deceit element.
17 MR JUSTICE GRAY:     Yes, I have that well in mind.
18 MR IRVING:     Thank you, my Lord. Having said that, I have no
19further submissions to make except I dealt with the point
20that your Lordship will allow me to put to Professor
21McDonald three or four documents when he is in the box?
22 MR JUSTICE GRAY:     Depending on what the documents are, yes.
23 MR IRVING:     Yes. Thank you very much, my Lord. Having said
24that, I believe the witness now wishes to make ----
25 MR JUSTICE GRAY:     It is notionally cross-examination, but it is
26going to be a long answer to a question you have raised.

.   P-9

 1 MR IRVING:     Would your Lordship like to phrase the question to
 2the witness which he can now respond to?
 4< Cross-examined by MR IRVING, continued.
 5 MR JUSTICE GRAY:     I think the question is this, I will put it
 6very shortly.
 7     Is there anything to be derived or inferred from
 8the blueprints relating to the construction of the gas
 9chambers -- sorry, from a construction at Auschwitz which
10entitles one to infer that provision was made for gas
11chambers generally and, in particular, perhaps for the
12ducts into which these Zyklon-B pellets are alleged to
13have been poured?
14 MR IRVING:     On the roof.
15 MR JUSTICE GRAY:     That, I understand, to be the broad issue
16which you are now going to address, is that correct,
18 A. [Professor Robert Jan van Pelt]     Yes, my Lord, and I have a question, because we have been
19talking about crematorium (ii) and, by implication,
20crematorium (iii) until now, as Mr Irving has said,
21indeed, in the gas chamber of crematorium No. (ii), in my
22judgment, most of the people, I mean, at least half of the
23people killed in the gas chambers were killed in that
24particular space; but, of course, if we go back to the
25document recording the meeting of 19th August 1942, a
26point I made in my presentation on Tuesday was that it

.   P-10

<< 1-5201-205 >>