Holocaust Denial on Trial, Appeal Judgment: Electronic Edition, by Lord Justice Pill

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Conclusion on Auschwitz

45. Having reached those conclusions, the judge set out his general conclusion at 13.91 already cited. We acknowledge that important parts of the evidence relied on by the judge were not first-hand evidence. For example, he did not and could not hear the "eye-witness evidence" of Tauber, Olëre, Höss and Broad, on whom he relied. He had to assess the value of their evidence on the basis of statements made by them many   years ago together with the comments upon them and upon their context by expert historians. This has two consequences. The first is that the value of the evidence of any individual "witness" must be less than if he or she had given evidence orally to the Court and been subject to cross-examination. The second is that, as compared with the trial judge, this Court is at less of a disadvantage in assessing the evidence than is often the case. We bear those considerations in mind along with the earlier statement of the approach we proposed to adopt. (para 21) Having considered the evidence summarised by the judge, and the submissions of the parties we have come to the conclusion that the conclusion of the judge at 13.91 was a conclusion he was fully entitled to reach.
46. We are also satisfied that the judge directed himself correctly. At 13.70, already cited, the judge was doing no more than identifying the factual issue at Auschwitz, what he described as "the central question". He needed to do so because the applicant's position at trial on Auschwitz had changed significantly from those he had previously adopted. At the trial, he put in issue, as Mr Davies had rightly acknowledged, his up-to-date position. It was necessary for the judge to identify the applicant's current position on the factual issue, as he did at 13.70, by referring to the applicant's claim "that the killing by gas was on a modest scale". That the applicant's position had been different at an earlier time is confirmed by the record of his public statements set out in the judgment (8.17). We cite three examples:
Dresden. 13 February 1990: "... the holocaust of Germans in Dresden really happened. That of the Jews in the gas chambers at Auschwitz is an invention. I am ashamed to be an Englishman."
Toronto, 8 November 1990: "... more people died on the back seat of Senator Edward Kennedy's motor car at Chappaquiddick than died in the gas chamber at Auschwitz."
Calgary, 29 September 1991: and so are the other eye-witnesses at Auschwitz [liars] who claim they saw gassings going on because there were no gas chambers in Auschwitz as the forensic tests show."
47. The judge's self-direction as to the test to be applied to the applicant's historiography, the factual issue having been determined, is set out at 13.3 and 13.4, which Mr Davies accepts as an appropriate direction, and we have no doubt that the judge applied it when reaching the conclusion at 13.91.
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accessed 12 March 2013