Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 32: Electronic Edition

Pages 61 - 65 of 222

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    Now, I was going to say that the Defendants have
 1I understand from what Mr Rampton said yesterday that they
 2are not relying on that section 5 at all, my Lord.
 3 MR JUSTICE GRAY:     No, I do not think that is quite right. I
 4think what he said was that they say they do not need
 5section 5, that is their primary position, but that if
 6they do need it, then, indeed, they rely on it. So do not
 7assume that it has disappeared out of the picture because
 8it has not.
 9 MR IRVING:     In that case, I will leave it as I originally
10wrote. I am aware that your Lordship is also capable, of
11course, of putting something in section 5 if you consider
12it to come under section 5.
13 MR JUSTICE GRAY:     I probably would be, but that I believe to
14Mr Rampton's position.
15 MR IRVING:     This is not the place to make a submission, but my
16position is that there is no common sting between those
17allegations. They are totally different kinds of
19 MR JUSTICE GRAY:     Elaborate on that later.
20 MR IRVING:     In other words, they accuse a respectable
21Englishman of consorting with terrorists and murderers,
22and then plead the relative insignificance of the
23accusation when it turns out to be a reckless lie. And
24there are other incendiary lies which they have stuffed
25into that particular sand-bucket, section 5 of the
26Defamation Act, in the hope that they will sputter out:

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 1the Defendants repeated the story in that book - first
 2published in Izvestia - that I placed a portrait of Adolf
 3Hitler over my desk. For that lie -- I have had hundreds
 4of journalists visiting me over the 30 years and never
 5once has that picture occurred to any of them for there is
 6no such picture. For that lie too they have offered no
 7justification. I read incidentally recently in Literary
 8Review that Lloyd George had signed photographs of both
 9Hitler and Mussolini on display, and that was a British
10Prime Minister. The only signed paragraph in my
11apartment, as many journalists have observed, is one of
12Sir Winston Churchill.
13     So I submit that your Lordship should not accept
14the Defendants' contention, if they wish to stand by it,
15that these allegations should be disregarded on the basis
16of section 5. Even if they could sufficiently justify
17their claim that I deliberately bent history in favour of
18Hitler, and I do not believe they can, I submit that they
19have not, it would still "materially injure the
20plaintiff's reputation", which is the word of the Act,
21section 5, to say that I had a portrait of Hitler above my
22desk. The claims which they do seek to justify suggest
23that I am culpably careless and (perhaps unconsciously)
24sympathetic to Hitler; bad enough, bad enough, but having
25a portrait of that man -- I am sorry, having a portrait of
26that man above my desk implies a full-hearted 100 per cent

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 1conscious commitment to that man, which is very
 3     I have provided your Lordship on an earlier
 4occasion in one bundle a number of passages quoted from
 5AJP Taylor's works, a very famous English historian and
 6writer. Taylor himself accepted that they inevitably
 7improved Hitler's image -- the words that Taylor had
 8written -- maybe he did not originate the actual mass
 9murders himself, wrote Taylor; maybe he did slip into war
10with Britain rather than planning it; maybe the Anschluss
11with Austria was more a stroke of good fortune, which he
12grasped, rather than long planned as a take-over; maybe
13the Nazis did not burn down the Reichstag building in
141933. These views of Taylor have been criticised as being
15wrong, even as being too sympathetic to Hitler. But
16everybody would accept that to suggest that Taylor had a
17portrait of Hitler "over his desk" would suggest something
18far worse. So it should be for me to0.
19     Again, for the purpose of section 5, the
20allegation that I bend history in favour of Hitler because
21I am said to admire him, and that I consort with other
22people holding such views, is a very different kettle of
23fish from stating, as the Defendants do, that I consort
24with people who are widely regarded as violent and
25murderous terrorists.
26     I continue now from the bottom of the page:

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 1     My Lord, the Court will be aware from the very
 2outset I argued that this hearing should not, effectively,
 3leave the four walls of my study, where I wrote my books;
 4and that what actually happened 50 or 60 years ago was of
 5less moment to the issues as pleaded. The matter at
 6issue, as pleaded by the Defendants, is not what happened,
 7but what I knew of it, and what I made of it, at the time
 8I put pen to paper. We had some argument on that matter,
 9my Lord. To take crude example: neglecting to use the
10Eichmann memoirs, releases to us only a few days ago, had
11they contained startling revelations - which they did not
12- could not have been held against me because they were
13not available to me in the 1960s, 1970s or 1980s. But
14your Lordship took a different view and I respectfully
15submit that it was wrong.
16 MR JUSTICE GRAY:     May I interrupt you again? I do not think
17that is right. I think everybody agrees that the Eichmann
18memoirs, because they have surfaced so late, really have
19no bearing on this trial at all.
20 MR IRVING:     I gave that as a particularly crude example of why
21what mattered was what happened in the walls of my study
22as I wrote, what was on my desk, so to speak, and not what
23actually happened.
24 MR JUSTICE GRAY:     I see.
25 MR IRVING:     Your Lordship took a different view, and
26I respectfully submit that it was wrong. The Defendants

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 1have invested a sizeable fortune in reresearching the
 2Holocaust, and possibly for that reason we have all been
 3dragged through that vast and inhuman tragedy yet again,
 4because of the money spent on it now, and again quite
 5needlessly, in my submission. It would have sufficed for
 6their purposes if they could have proved, on the basis of
 7the total disclose of my files which I made to them and
 8their experts, that I had indeed "distorted, misstated,
 9misquoted and falsified", their words. Fearing or
10finding, however, that they were unable to prove wilful
11fraud, in effect, in my submission, they have fallen back
12on the alternative plea in the tort of negligence: that
13"Mr Irving ought to have known". I respectfully submit
14that this unsettle change of defence should not have been
15allowed to them, it should not have been available to
16them, as it was not pleaded at the outset. It has to be
17specifically pleaded, in my submission, my Lord, at the
19     If my submission on the law is, however, wrong,
20then your Lordship must ask what effort would have been
21reasonable on the part of an individual historian, acting
22without institutional support like that of Yad Vashem, and
23with the doors of the archives increasingly being slammed
24against him because of the activities of the bodies to
25which I shall shortly refer. What it would have been
26reasonable to expect me to do to find out what happened?

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