Holocaust Denial on Trial, Trial Transcripts, Day 30: Electronic Edition
Pages 1 - 33 of 33
1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
2Royal Courts of Justice
4 Monday, 6th March 2000
7MR JUSTICE GRAY
9B E T W E E N: DAVID JOHN CAWDELL IRVING
11(1) PENGUIN BOOKS LIMITED
12(2) DEBORAH E. LIPSTADT
14The Claimant appeared in person
15MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and
17MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited
18MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
19the Second Defendant Deborah Lipstadt
21(Transcribed from the stenographic notes of Harry Counsell
&Company, Clifford's Inn, Fetter Lane, London EC4
23(This transcript is not to be reproduced without the written permission of Harry
25 PROCEEDINGS - DAY THIRTY
1 <Day 30
3 MR JUSTICE GRAY: Yes, Mr Irving?
4 MR IRVING: May it please the court, may I just first begin, as
5this is our last informal session, so to speak, before we
6come to more formal matters, just by expressing words of
7my appreciation for the work put in by the defending firms
8of solicitors. They have had an extra burden put upon
9them by the fact that I am a litigant in person and I
10deeply appreciate their efficiency in this matter.
11I appreciate their help in this matter.
12 MR JUSTICE GRAY: That is very fair of you to say that.
13 MR IRVING: It is proper I should say that as a matter of
14record. My Lord, I have two or three matters to deal with
15today. If I can propose the agenda for this morning? It
16would be to deal with these two or three matters of mine
17first which include my points on the video films, then
18subsequently to take up the matter of your Lordship's list
19of issues, unless your Lordship wishes to put it the other
21 MR JUSTICE GRAY: That sounds to me perfectly sensible.
22Mr Rampton, you do not object to that, do you?
23 MR RAMPTON: What I would suggest we do is Mr Irving makes his
24points -- I had thought there was only the one individual
25video in question actually which was the Halle video -- if
26he makes on that, then Mr Julius, if your Lordship will,
1will reply on that because he knows the story, I do not,
2and if it goes through me, I am likely to get it wrong.
3Then, when we have done that and your Lordship has made
4whatever ruling or decision is necessary, then we should
5go on to the list. I also want to say something about the
6closing speeches which, looking at the transcript of
7Thursday evening, it ended up in a bit of a muddle. I do
8not really know what it is that I am supposed to do, but
9I would like to go back to that and revisit that, if I
11 MR JUSTICE GRAY: Sure. So, Mr Irving, let us start off with
13 MR IRVING: My Lord, I have put a small bundle, or two or three
14small bundles, in front of your Lordship. The one marked
15"A" in the top right-hand corner, as your Lordship will
16remember, there was a question as to whether the diary
17entry July 24th on a certain day was complete, and I have
18now disclosed voluntarily the entire diary entries for
19that week, effectively, which shows there was one sentence
20redacted. There was a suspicion, my Lord, that there
21might have been some reference to the National Alliance in
22that opening sentence and ----
23 MR JUSTICE GRAY: And there is not.
24 MR IRVING: There is not. If the Defendants wish to send
25somebody to inspect the actual computer disk on which that
26entry is recorded, just to make sure it has not been
1amended in some way, then I would be quite happy to ----
2 MR JUSTICE GRAY: I doubt whether they will want to.
3 MR IRVING: --- to establish. My Lord, little bundle B ----
4 MR JUSTICE GRAY: I am sorry, I am going to just put these
5documents where they belong. I will not do it now but can
6somebody give me the ----
7 MR RAMPTON: RWE 1. I cannot tell you -- tab 2.
8 MR JUSTICE GRAY: Good.
9 MR IRVING: Little bundle B. Your Lordship wished to have a
10note on the BBC gas chamber propaganda, if I can put it
11like that. I have put together a two-page summary of a
12broadcast made by one broadcaster, Thomas Mann, the famous
13German novelist, in November, January and June 1942 which
14I think are the material dates, before the Rigner letter
15from Geneva, and attached to that are photocopies from the
16published version of his broadcasts, and the footnotes are
17the references from his diaries which fix the actual dates
18when the broadcasts were made.
19 MR JUSTICE GRAY: Did he talk about----
20 MR IRVING: He did talk about gas chambers.
21 MR JUSTICE GRAY: --- gas chambers?
22 MR IRVING: My Lord, he talked about mass gassings at line 2 of
23the second page. He talked in the second item, which is
24dated January 1942, of 400 Young Dutch Jews being sent as
25test objects for poisons gas. He corrected that on June
2626th 1942 to say it was 800 who had been to Mauthausen
1where they were gassed.
2 MR JUSTICE GRAY: Yes. Again where is that?
3 MR IRVING: My Lord, you have already had something like that
4similar, but not in that neater form.
5 MR JUSTICE GRAY: Unfortunately, I have not, I think, now got
7 MR IRVING: I will certainly refer to that in my closing
8address with all that detail, and so you might wish just
9to throw those away.
10 MS ROGERS: For ease, if you put in J2, tab 19, which is the
11next empty tab, we will provide an index to Mr Irving of
12everything that is in J2 and ----
13 MR JUSTICE GRAY: You have done that almost up-to-date already,
15 MR IRVING: My Lord, the next matter is the Halle video or
16videos. If your Lordship will turn to bundle C, which is
17somewhat thicker, but I am not going to take you through
18all the documents on that, it was a bundle put together
19for the actual action in a lower court before Master
20Trench. It is bundle C. I have inserted just behind the
21index a photograph of the three original videos which fell
22into my hands. They look rather tatty and I attach
23importance to that.
24 MR JUSTICE GRAY: When you say they fell into your hands, you
25got these from this week, did you?
26 MR IRVING: Let me first of all set out ----
1 MR RAMPTON: I thought bundle C was the witness bundle, but it
2is obviously something different.
3 MR IRVING: There should be three or four bundle Cs over there.
4 MR JUSTICE GRAY: It has "Halle" in the top right-hand corner
5under the "C".
6 MR IRVING: "Halle" in the top right-hand corner and also ----
7 MR RAMPTON: I do not think I have got that.
8 MR IRVING: I am sorry, could his Lordship possibly have a
9slightly better picture?
10 MR JUSTICE GRAY: Thank you very much.
11 MR IRVING: My Lord, first of all, let me say that this is a
12matter which goes to the issue of evidence, the
13admissibility. It also goes to the question of the
14conduct of the case which has a bearing on damages and
15costs. So, I would ask your Lordship to bear those three
16matters in mind.
17 MR JUSTICE GRAY: Well, I think I only really need to trouble
18you about admissibility.
19 MR IRVING: At this stage.
20 MR JUSTICE GRAY: If you want to say anything about damages,
21then do that in your final speech. I understand the point
22you are making, but we are only really concerned with
24 MR IRVING: Well, in that case that makes this session this
25morning much briefer because I was about to take your
26Lordship through the rather sorry history of how this
1evidence was withheld from me.
2 MR JUSTICE GRAY: I do not think now is the right time to do
3that. What you are, presumably, going to say (and I
4express no view about it) is that the way in which they
5have dealt with this material is an illustration of the
6high handed way the Defendants have behaved and the
7offensive way in which they have conducted their case
8generally, is that the kind of point you are making?
9 MR IRVING: I would have used different adjectives, but that is
10certainly my case, my Lord, that they have used muscle,
11they have used wealth, they have used power, they have
12used experience -- they are one of the most experienced
13firms of solicitors in this country, and I make no
14criticism of that fact -- against myself as a litigant to
15try to conceal evidence from me, although the Second
16Defendant had sworn an affidavit, they then referred me to
17the affidavit to prevent me from making further enquiries
18saying, "You can go behind that when the time comes to
19cross-examine", which, of course, has been denied me, that
20opportunity; and they have had these three versions of the
21Halle video in their hands, the Thames Television version
22as broadcast, the Dispatches version and then also the
23heavily edited version and then there is the raw version
24which I have looked at two or three times, particularly
25relating to the episode where I am standing making the
26speech in Halle. That too has been cut by the cameraman.
1 If they are proposing to attach any weight to
2this, then I would wish to make objections which your
3Lordship can well apprehend what those objections would be
4as to the admissibility. It is edited material, as a
5document, a video is a document within the terms of the
6rules of evidence and the Rules of the Supreme Court.
7That is why I made the original application under rule 24
8I think 13 or 16 to have that material struck out because
9of the withholding of the evidence from me. We had quite
10an intensive session and Master Trench, because the
11solicitors in that case broke an undertaking to bring the
12originals to the High Court for the hearing before Master
13Trench, I was unable to establish that it was originals
14and, therefore, not privileged material. But that is, of
15course, the other matter. That goes to the conduct of the
17 MR JUSTICE GRAY: Yes. Just concentrate on admissibility. As
18I understand it, you do not dispute that what was shown in
19court the other day is from a tape, but you say that it
20has been so heavily edited as to give a false impression
21of what actually happened?
22 MR IRVING: It does not give ----
23 MR JUSTICE GRAY: Is that the way you put it?
24 MR IRVING: It does not give a complete record of my speech, my
25Lord. It omits major parts which, in fact, as your
26Lordship would see from the bundle of the letters I wrote
1before I even was aware the tape existed when I was
2applying to all the television companies for the content
3of the speech, if your Lordship were to look at the
4letters that I wrote in April 1993 to all the television
5companies frantically trying to find anyone who had a copy
6of the original film, those are round about page 19, those
7are typical letters. Then I swore affidavits in Australia
8in 1994, that is long before this action was initiated,
9the present action, saying what was in it; the fact that
10I reprimanded the people for making these stupid slogans,
11and the fact that in the part of the speech that is cut
12out I said to the audience, "You people are all young.
13I am now old. It is the other way round. It used to be
14the old people sitting in front of me and me, the young
15person, talking to me, but now you, people, are young,
16I am old. I am talking to you. You are Germany's
17future. The world's eyes are upon you, you have to start
18behaving". That material, unfortunately, is part of the
19material that has been cut out of the video tape.
20 MR JUSTICE GRAY: Yes, so, I mean, what you are really saying
21is that even in its unedited form, that is to say, before
22the Defendants, as it were, got their hands on it, if
23indeed they did, it gives a false impression because the
24original team -- was it an Australian team -- did not
25actually video, or This Week or whoever it was, the whole
26of what you said?
1 MR IRVING: The particular one which we have is the This Week
2raw footage and it stops and starts, if I can put it like
4 MR JUSTICE GRAY: No, I appreciate that.
5 MR IRVING: Therefore, it is an incomplete record of my
6speech. It may be a complete record or give a good image,
7and I admit this, of the kind of atmosphere and the flag
8waving, and this kind of thing, and I possibly even say
9that against myself, but as far as the content of my
10speech is concerned, it is a dodgy record.
11 MR JUSTICE GRAY: Yes. It seems to me what you are telling me
12now really does not amount to an objection as to the
13admissibility of the tape, but is rather a submission you
14want to make that it is so heavily edited that it does not
15give a fair impression of what actually happened. It
16seems to me, perhaps, to follow that the way to deal with
17the problem is not to rule the tape inadmissible, but to
18let you, if you have not already done so, indicate what it
19is that has not been taped which would give a completely
20different impression of what you said at that meeting.
21 MR IRVING: Not only that, my Lord, but also the implication,
22the false implication, that may be given that because
23certain people are visible on the video, therefore, I knew
24them which, of course, easily obtained by cross-cutting
25and by cutting out large chunks. I would have preferred
26your Lordship to make a simple ruling that the tape may be
1used as evidence for the atmosphere at that meeting, the
2kind of people who were there possibly even, but not as
3evidence for Mr Irving's contact with them.
4 MR JUSTICE GRAY: Well, I do not wholly disagree with that. I
5think the only thing I would add is there were some people
6there, and I am afraid the names are not actually at the
7front of my mind at the moment.
8 MR IRVING: Christian Worch.
9 MR JUSTICE GRAY: Althans was one, was he not?
10 MR IRVING: Althans was not there. I think the relevant names,
11as far as Halle are concerned -- I am sure Mr Rampton or
12Miss Rogers will correct me -- Christian Worch, who was
13the organizer. I saw the video again last night.
14 MR JUSTICE GRAY: There is no issue about you knew he was there
15and indeed you had some ----
16 MR IRVING: I knew he was there -- well, I found him there, put
17it like that. I travelled down there with his wife Uschi.
18She was there.
19 MR JUSTICE GRAY: Who was the other one who did the speech at
20the beginning with the slightly sort of receding hair?
21 MR IRVING: I think the allegation is that Thomas Dienel was
22there, a man called Thomas Dienel.
23 MR JUSTICE GRAY: Well, he was there, I think you accept that,
24and I would be inclined to conclude from the video that it
25was pretty obvious you realized he was there because he
26made the opening and closing speech. You may deny that,
1but I mean that would seem to me to be the natural
3 MR IRVING: I shall certainly deny it when the time comes, my
4Lord, because I have looked at the video again last
5night. We are not visible together on the video and
6I have no notion who this man is. There must have been a
7couple of thousand people there whose names I do not know.
8 MR JUSTICE GRAY: Again, you see, one has to look at the
9totality of the evidence, including your diary entries, as
10to how long you were there. It is the sort of thing I
11have to make my mind up about, I think.
12 MR IRVING: In that case, my Lord, if you look at the
13affidavits and things which are contained in the bundle
14which I just gave you, you will see that I state: "10
15minutes, made the speech and left" which is as far as the
16demonstration was concerned. I went there, spoke for 10
17minutes or five minutes, then got straight in my car and
18drove off. So whoever else is visible on the video for
19the remaining half an hour or three-quarters of an hour,
20it is neither here nor there. Those affidavits, of
21course, were sworn back in '94 or '93, long before this
22action was commenced.
23 Of course, in my closing statement I am going to
24resist most energetically the notion that I had any
25knowledge of who those particular people were. A number
26of the people, I am quite happy to acknowledge having
1known them, but I am certainly not going to admit knowing
2people like Thomas Dienel.
3 MR JUSTICE GRAY: I think you follow the way I am thinking at
4the moment, and say anything else you want to, which is
5that I do not think there really is a reason for not
6admitting the video, but there is certainly every reason
7to listen to what you say about why it is unrepresentative
8of what happened.
9 MR IRVING: Can we be specific which video we are talking
10about? There were three videos, my Lord.
11 MR JUSTICE GRAY: The Halle video.
12 MR IRVING: Yes, but the three videos which were pictured on
13the photograph I gave your Lordship this morning, there
14are three videos. There are two raw videos and one
15broadcast video as broadcast by Tames TV and another one.
16I think we ought to know which one we are talking about as
18 MR JUSTICE GRAY: As I say, I only saw one and I think you told
19me (but I may be wrong about this) that this was an edited
20version of the edited This Week version.
21 MR RAMPTON: No.
22 MR IRVING: No.
23 MR JUSTICE GRAY: Pause a moment.
24 MR IRVING: I think the one that you were shown, my Lord, was
25the raw version.
26 MR RAMPTON: Yes. That is all there is.
1 MR JUSTICE GRAY: It is No. 223 in this little pile in your
2photograph? The top two are unedited material.
3 MR IRVING: It was 226 or 227 you were shown, my Lord. It
4could have been either because I have checked both of
5them. They both contain the same footage whereas 223 is
6the version as broadcast.
7 MR JUSTICE GRAY: I see, right. What is the difference between
8226 and 227 then?
9 MR IRVING: I have had a look at them and they appear to
10contain much the same raw material.
11 MR JUSTICE GRAY: I see.
12 MR IRVING: I do not know whether they are dupes or what.
13 MR JUSTICE GRAY: Yes, I think my comment still applies; it
14seems to me that is something that is legitimately
15available to the Defendants to use as evidence, subject to
16your entitlement to make the sort of comments that you
17have been making to me this morning.
18 MR IRVING: I certainly shall and I shall make my comments
19about the manner in which they withheld it from me,
20knowing that I have been looking for it for five years.
21 MR JUSTICE GRAY: That I am not following at the moment, but
22that seems, perhaps, not to go to admissibility but to
24 MR IRVING: It does, well, to conduct of the case ----
25 MR JUSTICE GRAY: It comes to the same thing.
26 MR IRVING: --- which is a matter of cost as well.
1 MR JUSTICE GRAY: Well, maybe. Do you want to say any more
3 MR IRVING: Not on the Halle video, my Lord. The other bundle
4E only went to the conduct of the case, my Lord. That was
5the evidence that they had withheld the -- which now
6brings us to your Lordship's list.
7 MR JUSTICE GRAY: Before we get on to that, shall I ----
8 MR RAMPTON: I believe this hearing is in open court.
9Mr Irving has made some very grave allegations which, so
10far as I know, are completely illfounded against my
12 MR JUSTICE GRAY: I am not going to go into it at the moment.
13 MR RAMPTON: No, I know, but I think, in fairness, they ought
14to have an opportunity to tell your Lordship briefly what
15did happen. I only say this, that what your Lordship has
16seen is not edited in the sense that somebody has sat in a
17cutting room cutting it. It is the film shot by the
18cameraman. One knows that it is entire because the timing
19thing, the little black oblong at the left-hand side, is
20continuous. So if it has been edited, it has been edited
21in that sense simply because the cameraman got bored and
22went and had a cup tea or whatever.
23 MR JUSTICE GRAY: Well, that is not quite the way I would look
24at it. I suspect the cameraman, whoever he may have been,
25was looking for things that he thought would be good,
26juicy broadcasting material.
1 MR RAMPTON: No, I was being slightly frivolous, but if there
2has been any editing, it is by the become cameraman's own
4 MR JUSTICE GRAY: Yes, I follow that point.
5 MR RAMPTON: And not by us.
6 MR JUSTICE GRAY: It is a question of what he chose and what he
7did not chose to include.
8 MR IRVING: My Lord, the cameraman was, I think, Michael
9Schmidt who was this cameraman ----
10 MR RAMPTON: That is as may be. He is not my servant or agent
11and we have nothing to do with the way that film looks on
13 MR IRVING: Well, it goes to his Lordship's comment that the
14cameraman would have picked what interested him.
15 MR JUSTICE GRAY: Mr Julius, do we really benefit by going into
16detail as to the history of these videos?
17 MR JULIUS: I do not think so, my Lord, and I am not proposing
18to do that. If I may, I will just make three points. The
19first point is nothing was withheld from Mr Irving. On
20the contrary, this is a tape on which we place some
21reliance. The suggestion that we would not want to show
22it to Mr Irving or to show it to the court is, of course,
24 The second point I make is that no undertaking
26 The third point I would make is the point that
1has just been made by Mr Rampton, and that is that the
2tape your Lordship saw was not edited in any way.
3 MR JUSTICE GRAY: No. I think I had misunderstood the position
4as to the editing, but can you just help me about this?
5I am not sure that I know what or, indeed, need to know at
6this stage what the argument was, but you, you the
7Defendants, had in your possession a copy of these videos
8from when, from day one, as it were, or?
9 MR JULIUS: No, my Lord. What happened was this. During the
10course of preparing the case for the trial, a huge amount
11of material, as your Lordship can imagine, was being
12generated. It was being generated within the firm, it was
13also coming in from third parties. Lists were being drawn
14up on a periodic basis to send the material over to
15Claimant. This came in, I understand, after the last list
16was produced and at the time the view that was taken of it
17was that it was material generated for the purposes of
18litigation and, therefore, on the face of it, privileged.
19 MR JUSTICE GRAY: Privileged? How could it possibly be
21 MR JULIUS: Well, this was the preliminary view that was
22taken. In the event, it is not privileged. In so far as
23privilege was ever claimed for it, the privilege was
24waived. It is plainly a video that is important to the
25case, relevant to the issues and disclosable to the
26Claimant. It was disclosed to him and he has had it for
1a year now. He was keen to have it, and it is slightly
2odd that he should now be keen to exclude it.
3 MR JUSTICE GRAY: Can I just ask one more question? For how
4long was the claim for privilege maintained, as it were?
5 MR JULIUS: I think two days, my Lord.
6 MR JUSTICE GRAY: Right. Well, as is obvious from what I have
7already said, I am satisfied that it is admissible, this
8tape, but I leave it open to both parties to make whatever
9comments they think it necessary or appropriate to make
10about the use that has been made of it in the short period
11when it was not disclosed on the basis it was privileged,
12and so on. Mr Irving, is that reasonably clear?
13 MR IRVING: Very clear indeed, my Lord, yes.
14 MR JUSTICE GRAY: What does that leave? You have some comments
15to make about the opening, the list of issues?
16 MR IRVING: I think both Mr Rampton and I have a few,
17I certainly have very few comments to make on your
18Lordship's list. I am going to use the list as a North
19Star by which I shall steer in my closing statement.
20 MR JUSTICE GRAY: That is really what it was intended to do.
21 MR IRVING: Because, obviously, the onus is on the Defence to
23 MR JUSTICE GRAY: Of course.
24 MR IRVING: --- and they have to justify seriatim, whereas I
25shall reserve to myself the right to pick out major points
26which I consider would justify my conduct.
1 MR JUSTICE GRAY: Yes. One thing that I think is perhaps
2missing from this, and it is not missing because I did not
3have it in mind, it is just that it did not strike me as
4perhaps worth including a separate little heading for, but
5I mention it because you will want to place reliance on
6it, I have no doubt.
7 MR IRVING: I am sure.
8 MR JUSTICE GRAY: That there are many assertions in ----
9 MR IRVING: Section 5.
10 MR JUSTICE GRAY: --- Professor Lipstadt's book which have not
11sought to be substantiated.
12 MR IRVING: Section 5, my Lord, yes, the Hisbollah and
14 MR JUSTICE GRAY: You say section 5. That is perhaps a
15slightly defensive way of looking at it, but that is
16something that also needs to be addressed as a topic.
17 MR IRVING: That was precisely the one point I was about to
18make, my Lord, that I was unaware whether this was a
19deliberate omission that you thought was unnecessary even
20to tell me that because ----
21 MR JUSTICE GRAY: No, I think the reason for it, if there needs
22to be a reason, is that I was focusing entirely on the way
23the plea of justification is put. That does not, of
24course, mean that I do not have to have in mind what was
25published and what has not been sought to be justified.
26 MR IRVING: That was, in fact, the only detailed point that
1I wished to make about it, my Lord.
2 MR JUSTICE GRAY: I have one other observation which is
3probably sensible I should make whilst you are on your
4feet, and it relates to the, and it is my word, well,
5I think it is the Defendants' word but I picked it up in
6(ix) -- I do not know why it has become "P" but anyway --
7the Claimant's honesty as an historian. I think that is a
8slightly unsatisfactory gloss to put on what I understand
9the Defendants' case to be, and I did not want you to be
10misled by the fact that I have used that label. It seems
11to me that it begs too many questions to be helpful. The
12allegation sought to be justified, and the meaning which
13it is accepted, I think, was borne by the words that
14Professor Lipstadt used, was that you were deliberating
15distorting the data, etc., etc., etc. ----
16 MR IRVING: Precisely.
17 MR JUSTICE GRAY: --- because you have an agenda of your own.
18Well, I can see that that might in some ways be described
19as dishonest conduct on the part of an historian, but
20I just thought I ought to make clear that I am not very
21happy with that word "honesty" used without a clear
22explanation of what in the context of this case it
24 MR IRVING: My Lord, I had clearly apprehend exactly what your
25Lordship intends with that word. It is a manipulation,
26deliberate false translation and distortion.
1 MR JUSTICE GRAY: I think I will avoid it because I think it
2begs too many questions, as I say. So that is all you
3have, is it, on the ----
4 MR IRVING: No, my Lord, but I do know that Mr Rampton has a
5number of points that he wishes to make.
6 MR JUSTICE GRAY: Yes, I know he does and he has very
7helpfully, as you know, made some amendments to my list.
8 MR IRVING: Which I wholeheartedly endorse.
9 MR JUSTICE GRAY: On the whole, I think I do too.
10 MR RAMPTON: I am grateful for that. If your Lordship wanted a
11one word substitution for "honesty", it might be
12"integrity", "integrity as an historian". No, I prefer a
14 MR JUSTICE GRAY: I think it is better and I am not saying this
15tendentiously in either way.
16 MR RAMPTON: No, I realise that. It was perhaps too narrow as
17it stood and perhaps "integrity" as well is too narrow for
18what we are talking about or we think we are talking
19about, but we know what comes in under this heading which
20already will have been dealt with as we have been through
21the historical distortions, if I can call them that.
22 My Lord, there is one typographical error in
235.1(e) in the bit which we added, "Hitler's views on the
24Jewish question during the war, including Goebbels'
25diaries entries", it should be the 22nd not the ----
26 MR JUSTICE GRAY: I have the 21st actually. I have just
1spotted that that was not right. I suspect the reason is
2it is a diary entry for the following day, I do not know.
3 MR RAMPTON: That is right. Something went wrong there. Yes,
4and I do have the German of that which goes in bundle N at
5pages 127 and 127B. The English is already there, thanks
6to Professor Evans. But the German somehow got missed
7out. The relevant passage ----
8 MR JUSTICE GRAY: This is N?
9 MR RAMPTON: Yes, that is N, N1. I do not think N has any
10children yet, has it?
11 MR JUSTICE GRAY: Yes, it has. E is the most difficult one
13 MR IRVING: It is very exclusive, is it not? It excludes a lot
14of the entries that I would have relied upon.
15 MR JUSTICE GRAY: Well, yes, it is exclusive and at the same
16time it is inclusive. I had not realized it is spread as
17wide as this, at any rate in the context of the
19 MR RAMPTON: It does, and there are very, very grave criticisms
20to be made of Mr Irving in relation to each of those items
21in the bracket, and they all relate to the way in which,
22according to our case, he has tried to suppress, mollify
23or distort Hitler's expressions of his anti-Semitism
24during the war, particularly during the later part of 1941
25and the early part of 1942.
26 MR JUSTICE GRAY: Yes, I can see how they come in now.
1 MR RAMPTON: Those are inclusive rather than exhaustive.
2 MR JUSTICE GRAY: Yes. I mean the problem I have with them is
3that they come in elsewhere too.
4 MR RAMPTON: I know they do. There is bound to be some
5repetition. That is inevitable.
6 MR JUSTICE GRAY: I know. Can I ask you what the significance
7is, I think I do understand, of adding decrypts to
8whatever it is, 3B?
9 MR RAMPTON: Yes, that is simply because Mr Irving relies on
10two pieces of evidence, if I can call it that, for the
11suggestion that the number killed or died at Auschwitz was
12really quite low. One is the death books which were
13released by Moscow sometime in recent years, and the other
14thing is the Hinsley decrypts do not make any reference
15gassings at Birkenhau.
16 MR JUSTICE GRAY: Yes.
17 MR RAMPTON: So they really go together, and our explanation
18for that is that really they are the same in both cases or
20 MR JUSTICE GRAY: Yes. As I say, I am inclined to add, if we
21are making this as complete as it is becoming, two further
22topics at the end, which is the conclusion as to
23substantial truth and the availability, if required, of
24section 5, and then lastly damages, if any, injunction.
26 MR RAMPTON: Would your Lordship be wanting then to transfer
1some particularity out of 4 on the first page?
2 MR JUSTICE GRAY: No, because that is conclusions as to the law
3that applies, is it not, rather than conclusions?
4 MR RAMPTON: So 11 would be facts arising out of 4, would it
5not, or something like that?
6 MR JUSTICE GRAY: Yes.
7 MR RAMPTON: The facts governed by the principles in 4?
8 MR JUSTICE GRAY: Yes. Good. If in the course of preparing
9final speeches either of you come across topics that
10should be there but still are not, perhaps you could let
11me know by fax?
12 MR RAMPTON: We certainly will. That brings me to what to us
13is a matter of, to say some concern sounds over-dramatic,
14but it is this. I do not want and do not propose to ask
15your Lordship for permission to stand here for three days
16speaking. That would not be interesting for anybody and
17it would not be a good use of the court's time. However,
18this is a case of some peculiar importance, we would
19submit, and it has a legitimate interest for the public
20which runs far beyond the particular interests of the
21parties, and I do concede that it is the sort of case in
22which it would be appropriate, with your Lordship's
23permission, for both sides to be allowed to make a
24somewhat longer, but still not very long, longer closing
25statement than they made in opening. In my case, it would
26not necessarily follow the same structure as this, the
1long version, but it would certainly reflect the material
3 There are two next questions. First, when does
4your Lordship believe that that should happen, because
5again the public needs to know when it is going to
6happen? As a corollary of that, whether there is any
7possibility of accommodating rather more people in this
8court than are presently able to get in?
9 MR JUSTICE GRAY: Taking all that in reverse order, and subject
10to Mr Irving and then you can comment if you wish, I see
11your point about letting more people in. This court I
12think in the end probably accommodates as many members of
13the public as any court does, but it is never enough in a
14case of this kind. But, yes, I think, subject to
15agreement with all those concerned, particularly the Usher
16who has done a rather excellent job of keeping things
17under control ----
18 MR RAMPTON: Mr Irving has been sycophantic towards my
19solicitors, for which I genuinely and sincerely thank
20him, I do wish to say what a fantastic job the Usher has
22 MR JUSTICE GRAY: I think she has done a jolly good job because
23it is not all that easy. But, yes, within reason I think
24we will try to accommodate that. I am just wondering
25about the desirability of you and, if Mr Irving wishes to,
26Mr Irving, making what you might call the sort of public
1comments that you wish to make, as it were, before we get
2on to the nitty-gritty of the closing speeches.
3 MR RAMPTON: Your Lordship may well have rather, if I may say
4so without impertinence, a good point, because it does
5seem to me that when your Lordship has had a chance to
6look at the nitty-gritty, I am going to write the
7nitty-gritty first, and then what one might call the
8summary. I would suggest that it may be advantageous if
9your Lordship's mental process is the same, because when
10you have read the nitty-gritty, then you look at the
11summary and you say, oh, he cannot say that, it is not in
12the evidence or it is an exaggeration or whatever. One
13could get the long version to your Lordship, we will try
14to do it by Friday, but at any rate by Monday morning,
15take a day, because it will not take long to read as your
16Lordship is so familiar with the material, I can
17practically do it from memory now, and then look at the
18summary and then maybe read the summary on Tuesday, 14th.
19 MR JUSTICE GRAY: Yes, at all events whenever it happens, and
20it does not really matter whether it happens before or
21after the detailed submissions, my idea is that we might
22have the two final public speeches, if you follow what
23I mean, along side one another.
24 MR RAMPTON: Absolutely, on the same day.
25 MR JUSTICE GRAY: And probably on Tuesday.
26 MR IRVING: Not along side each other.
1 MR JUSTICE GRAY: Not simultaneously.
2 MR RAMPTON: I do not think that would be music to anybody's
3ears I have to say, but certainly on the same day. It
4would have to be, I say "have to be", that is excessive,
5but it would be desirable to have a fixed day because
6there will be people coming from all over the world to
7attend to attend.
8 MR JUSTICE GRAY: Shall we say Wednesday, because I suspect
9that will get us most of the way through the detailed
11 MR IRVING: My Lord, your Lordship expressed the desire I think
12to have the opportunity to ask questions on the basis ----
13 MR JUSTICE GRAY: Yes.
14 MR RAMPTON: Yes, absolutely.
15 MR IRVING: When do you wish to do this, after the verbal
17 MR JUSTICE GRAY: No, what I am getting at is if we have two
18full days, Monday 13th and Tuesday 14th, I think we will
19be most of the way through closing speeches, I suspect, if
20you let me do a bit of reading beforehand. Then on
21Wednesday, there may be a little left over, but Wednesday
22would be a good opportunity I think to make these
23statements for public consumption, which in the context of
24this case is legitimate. I think in other cases it might
26 MR IRVING: So, if I understood it correctly because there was
1some confusion on Thursday evening, by the weekend I and
2Mr Rampton would have submitted to your Lordship a paper
3version of what we intend to say?
4 MR JUSTICE GRAY: If you can do that it would be helpful, that
5I think is what I said on Thursday.
6 MR IRVING: On the basis of which on Monday and Tuesday you
7will ask us questions, and on Wednesday we read out either
8in Mr Rampton's case his summary or in my case whatever
9I consider necessary of my speech in public.
10 MR JUSTICE GRAY: Yes. When you say I will ask questions, do
11not put the ball wholly in my court. I am hoping you will
12submit something in writing, but will also make the points
13that you regard as most significant and then I can pick
14you up on them if needs be.
15 MR IRVING: My Lord, I am making further submissions, as your
16Lordship is aware, of which of course the Defence have not
17had a chance to answer, and it is only fair they should
18have a chance to answer and say, "This be struck out, that
19is not admissible, yes, this one is very powerful indeed".
20 MR RAMPTON: I would propose this, that we, with Mr Irving, it
21does not need to involve the court, we make a date and a
22time for exchange of the long versions, and also the
23summaries if they are ready by then, then we see whether
24there is any water between us, and it may well be that
25there is, either side may be something the other side does
26not think they ought to be allowed to say, and your
1Lordship may also have some queries or questions of your
3 MR JUSTICE GRAY: Yes. As to timing, if you could do it by
4close of business on Thursday, even if it is not the
5final -- you could not?
6 MR IRVING: No, not by Thursday.
7 MR RAMPTON: I could not possibly do it by then. I will try to
8do by close of business on Friday. It will not take very
9long to read. One reads quite quickly when one knows a
10case well. I am told Friday logistically is optimistic.
11We will do the best we can. We will fix that with
13 MR JUSTICE GRAY: I will not say anything about it, except that
14I think we ought to have speeches on Monday 13th. I do
15not want a slip on that.
16 MR RAMPTON: A discussion about speeches?
17 MR JUSTICE GRAY: The detail of speeches will start on Monday
19 MR IRVING: But they will not be public at that time?
20 MR RAMPTON: The public can be in court during the discussion.
21 MR JUSTICE GRAY: Of course they can, but there is extra
22accommodation being laid on, as it were, for Wednesday.
23 MR RAMPTON: The only other question is, and normally speaking
24in a case like this when one has written a long speech
25which the Judge has read, even if one is not going to read
26it in court, it will of course be accessible to anybody
1who wants a copy of it, whether they pay for it or whether
2they do not, and there ought to be perhaps an embargo on
3the release of the long version until the discussion about
4the long version has concluded.
5 MR JUSTICE GRAY: Yes, without any doubt.
6 MR RAMPTON: That leads me to mention one other thing. I am a
7bit of ahead of myself. It is this. When your Lordship
8comes to give judgment in the normal way the solicitors
9and counsel get a copy of the judgment a day before.
10Mr Irving does not have solicitors or counsel. (A) it is
11not fair if we get it a day before and he does not. (B)
12it is not fair if he gets a copy himself and my clients do
14 MR JUSTICE GRAY: Oddly enough I did not think I have ever had
16 MR RAMPTON: I have.
17 MR JUSTICE GRAY: One has had cases with litigants in person,
18but I have never had this particular problem about how you
19deal with -- my instinct would be that Mr Irving does get
20it at the same time as your legal team get it, but that he
21is, as it were, strictly embargoed as to the use that he
22can make of it. That seem to me to be the fair-handed way
23of doing it.
24 MR RAMPTON: That is all I am concerned about. What I do not
25want is him getting it into the public forum before we do,
26if I can put it crudely.
1 MR JUSTICE GRAY: Can I mention some things that perhaps should
2be done before speeches. One is the Muller document.
3 MR RAMPTON: Yes, it is in hand. It is being dealt with by
4Dr Longerich who is dealing directly with Munich and I
5think also with Ludwigsburg where it is thought there is
7 MR JUSTICE GRAY: Bearing in mind how quick Munich was to
8respond on the other document, I would be hopeful that you
9would be able to let me have something this week.
10 MR RAMPTON: Yes. This is more problematical because they have
11been given the wrong file reference.
12 MR JUSTICE GRAY: I thought they had tracked down the right
14 MR RAMPTON: No, they know that it is the wrong one. They
15think they have the document but they have got to find
17 MR IRVING: The problem with Munich is all that all that they
18have is a duplicated copy.
19 MR JUSTICE GRAY: I know and that is why enquiries are being
20made of other archives, as I understand it. That is
21fine. Mr Rampton, the other thing, and it is the only
22thing that I think I need to ask you about is, I think you
23were going to give me a little bit help on what you might
24call the American Civil Evidence Act statements.
25 MR RAMPTON: Yes. That is in charge of Miss Rogers. We are
26just down to the one now. The only one of the factual
1Civil Evidence Act witnesses we want to use is Rebecca
2Guttmann about the National Alliance which I have already
3cross-examined on. Your Lordship can have this. It has
4file C, Rebecca Guttmann, and the rest can be chucked
6 MR JUSTICE GRAY: When you say the rest, can I be absolutely
7clear about what can be chucked away?
8 MR RAMPTON: Everybody else in file C.
9 MR JUSTICE GRAY: File C or C1?
10 MR RAMPTON: I call mine C. It has 425 pages.
11 MR JUSTICE GRAY: Right.
12 MR RAMPTON: And it is called Defendants Witness statements
13I should think.
14 MR JUSTICE GRAY: I now seem to have back the file I swore
15blind I never had.
16 MR RAMPTON: That is the one with the National Alliance
17material behind it.
18 MR IRVING: When you say you are using Rebecca Guttmann's
19statement, does that mean to say you are also using all
20the appendices to it, or relying on them?
21 MR RAMPTON: Yes.
22 MR JUSTICE GRAY: That is what I was going to ask.
23 MR RAMPTON: Yes, I rely on the material that she picked up at
24a National Alliance meeting in 1998 at which Mr Irving
25gave a speech.
26 MR JUSTICE GRAY: Thank you.
1 MR RAMPTON: To put it as neutrally as possible.
2 MR JUSTICE GRAY: Right. Is there anything else?
3 MR RAMPTON: No.
4 MR JUSTICE GRAY: Thank you. I think it was necessary to have
5this fairly short session.
6 MR RAMPTON: Yes, it was.
7 MR JUSTICE GRAY: So 10.30 on Monday 13th.
8 (The court adjourned until Monday, 13th March 2000).