Irving v. Lipstadt

 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4Wednesday, 26th January 2000
 5
 6Before:
 7MR JUSTICE GRAY
 8
 9B E T W E E N: DAVID JOHN CAWDELL IRVING
10Claimant -and-
11(1) PENGUIN BOOKS LIMITED
12(2) DEBORAH E. LIPSTADT
13Defendants
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
16Second Defendants
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
20
21(Transcribed from the stenographic notes of Harry Counsell
& Company, Clifford's Inn, Fetter Lane, London EC4
22Telephone: 020-7242-9346)
23(This transcript is not to be reproduced without the written permission of Harry Counsell & Company)
24
25PROCEEDINGS - DAY TEN
26

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 1 <Day 10. Wednesday, 26th January 2000.
 2MR JUSTICE GRAY:     Mr Irving?
 3MR IRVING:     My Lord, may it please the court. Two minor
 4housekeeping matters: first of all, I have postponed my
 5two witnesses until later because, obviously, we are in
 6the middle of Professor van Pelt's cross-examination, and
 7that is the witnesses Fox and Peter Millar.
 8MR JUSTICE GRAY:     I hope that does not cause problems.
 9MR IRVING:     Not at all, no. I dealt with them last night about
10this. So one of the things I gave to you in the bundle
11yesterday morning referred to the Millar. It is a section
12of the 1992 diary. It will presumably be in your ----
13MR JUSTICE GRAY:     I have it loose and I will keep it loose.
14MR IRVING:     Keep it loose or put it in J.
15    My Lord, the other minor matter concerns once
16again the press.
17MR JUSTICE GRAY:     Yes.
18MR IRVING:     From today's press coverage -- particularly I am
19referring to the Times -- one gets the impression they are
20relying more on hand outs than on their personal
21experiences in the courtroom.
22MR JUSTICE GRAY:     I saw the report. I did not read it. What
23about it are you concerned?
24MR IRVING:     Purely, that there were things in the article which
25were not in the testimony yesterday, and I am not in any
26way pointing a finger at the Defendants on this. It may

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 1well be there are third parties who are doing this and
 2providing copies of the Professor's report or something
 3like that to the press. This clearly disadvantages me.
 4    I am aware of the fact that your Lordship is
 5sitting without a jury, so this is of less moment, but if
 6it in any way gradually affects or put wrong guidelines on
 7public opinion and skews public opinion in some way, then
 8this may indirectly be seen to be affecting the outcome of
 9this decision.
10MR JUSTICE GRAY:     Well, I am afraid that really is a sort of
11fact of life that you just have to put up with. Really,
12what matters here for my purposes is whether I am going to
13be influenced by it and, as I have not read it, I will not
14be.
15MR IRVING:     Very well, my Lord. Clearly, it would be improper
16for any of the parties in this case to start putting hand
17outs to the press in the way I appreciate the law is on
18contempt which would disadvantage the other party.
19MR JUSTICE GRAY:     If anything that really does disturb you
20comes up, mention it, but at the moment I do not think
21there is anything that can usefully be done about what
22appeared or, indeed, should be done. So I think we might
23as well get on.
24MR IRVING:     Very well, my Lord. It will probably assist your
25Lordship if I now just in one topic paragraph, so to say,
26outline what I intend doing ----

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 1MR JUSTICE GRAY:     I would find that very helpful.
 2MR IRVING:     --- for the next hour, shall we say? Firstly,
 3there will be no more traps being sprung. I am sure that
 4the Professor will appreciate advance notification. There
 5are no more hidden booby-traps or mines, but I am going to
 6be dwelling briefly on crematorium No. (ii) still for a
 7while because I believe the Professor wishes to make
 8certain comments on what I said yesterday.
 9    I then want to have a look at the quality of the
10eyewitness evidence that the Professor was relying upon,
11in particular the witnesses Tauber and Bimko and Broad.
12Then we will move to Auschwitz, the main camp, and have a
13look at the alleged gassing facilities there.
14MR JUSTICE GRAY:     Yes. Thank you for that.
15MR IRVING:     If I can just recapitulate where we were when we
16ended yesterday and invite the Professor to state what
17comments he had on that. This was the fact that we had
18established, I believe (and I am sure the Professor will
19correct me when the time comes if I am wrong) that the
20evidence on which he based his contention that crematorium
21No. (ii), the mortuary No. 1 in that crematorium, the
22underground mortuary, was, in fact, a gas chamber, was
23entirely eyewitness evidence, what we would call anecdotal
24evidence from certain named eyewitnesses.
25MR JUSTICE GRAY:     I do not think he would, accept but that may
26be what you are putting to him.

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 1MR IRVING:     He may wish to tell the court what other evidence
 2he is relying upon. I shall certainly invite him to do
 3so. If I may continue? The evidence then is that the
 4roof has pancaked downwards, has remained relatively
 5intact, sufficiently in tact that one can draw certain
 6conclusions from its present condition, and that in its
 7present condition it certainly shows no signs of the holes
 8through which allegedly the murderers poured the cyanide
 9capsules into the chamber below. They should certainly
10have been visible, in my submission.
11MR JUSTICE GRAY:     Yes, that is the point we were on yesterday
12evening.
13MR IRVING:     This is where we left it yesterday evening, my
14Lord.
15MR JUSTICE GRAY:     Yes, absolutely.
16< PROFESSOR VAN PELT, Recalled
17< Cross-examined by MR IRVING, continued.
18Q. [Mr Irving]      Professor van Pelt, do you disagree with any part of that
19brief summary?
20A. [Professor Robert Jan van Pelt]      My Lord, I do.
21Q. [Mr Irving]      Right. With which part do you disagree? Shall we take it
22stage by stage? My contention that your belief that this
23building was a homicidal gas chamber rests solely on the
24eyewitness evidence of those named eyewitnesses?
25A. [Professor Robert Jan van Pelt]      I disagree with that statement, and I can bring in some
26other evidence, if you would like to consider it?

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 1Q. [Mr Irving]      Was this other evidence contained in any of your reports
 2or in your published book?
 3A. [Professor Robert Jan van Pelt]      It is contained in a report. It is also contained -- it
 4is basically a number of images I would like to introduce
 5right now.
 6MR JUSTICE GRAY:     Can I just be clear? Are we talking about
 7crematorium (ii) or generally?
 8MR IRVING:     We are still talking about crematorium No. (ii), my
 9Lord, the one of which we had these large photographs.
10MR JUSTICE GRAY:     Yes, I just wanted to be clear.
11MR IRVING:     We are talking specifically about the Leichenkeller
12No. 1.
13A. [Professor Robert Jan van Pelt]      Or, even more specifically, we are talking about the way
14Zyklon-B was introduced in that Leichenkeller by means of
15wire mesh columns which above ground were capped with a
16kind of introduction device, a chimney like introduction
17device.
18Q. [Mr Irving]      Rather like a funnel of some kind?
19A. [Professor Robert Jan van Pelt]      Some kind of little chimney.
20Q. [Mr Irving]      Was this introduction device made of wire mesh or was it
21made of concrete or do you have any evidence?
22A. [Professor Robert Jan van Pelt]      Tauber describes it as a chimney with a concrete lid, but
23I would like at the moment, with your permission, just to
24introduce the evidence and maybe we can consider the
25evidence.
26Q. [Mr Irving]      This is the eyewitness Tauber you are referring to?

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