Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 16: Electronic Edition

Pages 16 - 20 of 176

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    I will provide your Lordship with three articles
 1unbecoming manner. "If Irving wins and Heider wins, then
 2what?" I have also highlighted "Niematz Wieder never again
 3and Den Anfenge, stop it at the start", what used to be
 4called in Latin I believe principe obstat. The repugnance
 5of those articles is that of course the Guardian Newspaper
 6are Defendants in a second action I am bringing of a very
 7similar nature, which they maintain is of a similar
 8nature, and they have a clear and vested interest, in
 9fact, in trying to see me knocked out in this action.
10Then, slightly more sinister and more difficult to
11control, I appreciate, by your Lordship are the articles
12being written by London journalists for the foreign press
13which then come bouncing back to us through Cyber space.
14 MR JUSTICE GRAY:     Probably not bouncing back to all that many
15people, would they be? National Post?. I have never
16heard it.
17 MR IRVING:     It is a major Toronto newspaper published by Conrad
18Black in conjunction with the Daily Telegraph. Article
19called "David Irving versus The Dead", written by a man
20called Geoffrey Wheatcroft, who is a British, London based
22 MR JUSTICE GRAY:     Which bit in this?
23 MR IRVING:     Well, the whole article is sinister in as much as
24it also incorporates a number of items that have so far
25not been produced in court, including privileged items,
26and this morning in today's Ottawa Sun, I believe, there

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 1were also quotations from Professor Richard Evans' report,
 2which is a highly libelous and defamatory document and it
 3is privileged only when used in connection with a report
 4in the case.
 5 MR RAMPTON:     My Lord, this discussion is becoming unwieldy for
 6two reasons. One is that I am excluded from it because
 7I do not have what Mr Irving is referring to. The other
 8is that the reason why people have access to Professor
 9Evans' report is that Mr Irving put it on his web site.
10 MR IRVING:     With a severe health warning, warning people that
11the entire contents of the report are considered to be
13 MR JUSTICE GRAY:     Are the entire contents of the report on your
14web site?
15 MR IRVING:     They are accessible with a password. There is a
16health warning that flaps down so that anybody who looks
17at it is warned in advance that the contents are deemed to
18be defamatory and untrue, and will be established when we
19have Evans in the box.
20 MR JUSTICE GRAY:     I have not read these obviously because you
21have just presented me with them. All I would say,
22subject to anything Mr Rampton wants to say afterwards, is
23that it is not open season and, in particular, if
24journalists who are based here choose to write in foreign
25publications articles which perhaps do create a risk of
26prejudice, then they must realize that they may be

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 1amenable to this court's jurisdiction, albeit that the
 2publication in question occurred abroad. But beyond that
 3I am slightly reluctant to get into this because it is a
 4bit of a diversion. I can certainly understand you get
 5fed up with it. It is not going to affect my mind, that
 6is the point.
 7 MR IRVING:     I am faced here by extremely powerful and wealthy
 8litigants who have expended a lot of effort in posting a
 9defence to this case, and more than that I will not say,
10my Lord.
11 MR JUSTICE GRAY:     Yes.
12 MR IRVING:     In that case I do not ask your Lordship to read the
13articles. I think that has now dealt with that.
14 MR JUSTICE GRAY:     I will glance at them or, if you rather,
15I will not, whichever.
16 MR IRVING:     By uttering your warning that it is not open season
18 MR JUSTICE GRAY:     Mr Rampton may disagree with that as a matter
19of law.
20 MR RAMPTON:     It is open season. I believe, there being no
21jury, it is open season except in one respect. It would
22not be right and would be a contempt of court to put
23direct or indirect pressure on the litigant or any of his
25 MR JUSTICE GRAY:     Yes.
26 MR RAMPTON:     It is also of course if they were saying terrible

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 1thing about your Lordship. That could theoretically
 2become contempt, but I do not believe that is what we are
 3talking about. Otherwise not.
 4 MR JUSTICE GRAY:     I am not so sure about that. If you write
 5here for publication in a journal which you know is going
 6to come back, it seems to me that that could amount to a
 7contempt. This is a very gentle warning shot over the
 9 MR RAMPTON:     It would depend on the content.
10 MR JUSTICE GRAY:     Of course.
11 MR RAMPTON:     That which is merely, what shall we say,
12tendentious in its reporting?
13 MR JUSTICE GRAY:     It has to establish a substantial risk of
14serious prejudice.
15 MR RAMPTON:     It would have to be such material that Mr Irving
16said in honesty to your Lordship, "I really do not think I
17can continue under this kind of fusillage".
18 MR JUSTICE GRAY:     It may not have to go quite as far as that.
19 MR IRVING:     I can give one example of the kind of pressure that
20we come under by virtue of the press reporting now. The
21principal of the school attended by my little girl, the
22ballet school, well, enough.
23 MR JUSTICE GRAY:     That sort of thing must be personally
24upsetting for you but it cannot possibility affect my mind
25because I do not know anything about it.
26 MR IRVING:     If ordinary citizens are affected in this way by

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 1this abusive press coverage even at this stage in the
 2case, then eventually this will mean that the entire
 3public gallery of this court will be affected by it, and
 4waves of hostility will be felt by the members of this
 6 MR JUSTICE GRAY:     Mr Irving, all I would say is that, as long
 7as you can carry on, which you are doing, despite what you
 8are having to put up with, then I hope you will find me
 9approaching the evidence unaffected by anything that may
10be published in newspapers.
11 MR RAMPTON:     Can I add this? If the public's mind is affected
12adversely to Mr Irving by a fair and accurate report of
13the proceedings in court, then only Mr Irving has himself
14to blame.
15 MR JUSTICE GRAY:     That of course is true, but I think his
16complaint is that these are things that are said or
17published which really do not reflect in any way the
18proceedings in court. That I think is his complaint.
19 MR RAMPTON:     The only one of those things that I have read is
20the Guardian article and, so far as that is concerned,
21I would not agree.
22 MR JUSTICE GRAY:     I have not read it.
23 MR IRVING:     My Lord, a number of newspapers are prejudging the
24issue and, as your Lordship is aware, we are just at the
25watershed, so to speak. We are now beginning to hear the
26defence witnesses in detail.

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