Holocaust Denial on Trial, Trial Judgment: Electronic Edition, by Charles Gray

Table of Contents

The alleged breach of agreement

13.130 There were two occasions on which Irving removed plates from the archive: the first was on 10 June 1992, when he wanted to make copies of the plates; the second was on the following day when he removed two more plates in order to take them to London for testing. The two occasions need to be considered separately.
13.131 In relation to the first occasion, as I have summarised in paragraphs 12.9 and 12.17 above, there was a conversation between Millar and Tarasov, who telephoned Bondarev to tell him to grant Irving access to the diaries. Irving stressed (and Millar confirmed) that there was no agreement as such with the Russians. I accept that there was nothing more than a single conversation between Millar and Tarasov. But it is possible to infer an agreement from that conversation and from the parties' subsequent conduct. In my view it is right to do so.
13.132 Was there an implied term of that inferred agreement that Irving should not remove the plates from the archive? This question falls to be answered by reference to the circumstances as they existed in Moscow at the time. According to Irving, the archive was in a state of chaos. The Russians   were willing to sell archive material if the price was right. There were no copying facilities in the archive. Irving testified that it was neither here nor there to the archivist if he removed the plates. I bear in mind that Irving acknowledged that he removed the plates "illicitly". But he denied breaching any agreement and I took him to mean that the removal was illicit in the sense that in normal circumstances an historian would not remove material from an archive. In these somewhat unusual circumstances I am not persuaded that Irving broke an agreement when he removed the plates overnight to have them copied.
13.133 The second occasion when plates were removed was rather different in the sense that Irving sought and obtained permission to remove the plates from the archive. The breach of agreement, according to the Defendants, arises out of the fact that, having removed the plates from the archive, Irving then took them to England to have them tested prior to their return to the archive. Was this a breach of the arrangement? Irving did not tell the Russians of his intentions. But there is no evidence that the Russians showed interest or concern what would happen to the plates whilst they were out of the archive. I have no doubt that it was throughout Irving's intention to return the plates. I am not satisfied that a breach of an implied term of the arrangement has been established by the Defendants.

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