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    Day 30 Transcript: Holocaust Denial on Trial

    Part I: Initial Proceedings (1.1 to 3.12)

        1996 I. No. 113
      2  Royal Courts of Justice
      3  Strand, London
      4  Monday, 6th March 2000
      6  Before:
    10  Claimant -and-
    13  Defendants
    14  The Claimant appeared in person
    15  MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and
    16  Second Defendants
    17  MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited
    18  MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
    19  the Second Defendant Deborah Lipstadt
    21  (Transcribed from the stenographic notes of Harry Counsell
        & Company, Clifford’s Inn, Fetter Lane, London EC4
    22  Telephone: 020-7242-9346)
    23  (This transcript is not to be reproduced without the written permission of Harry
        Counsell & Company)
    .           P-1

      1  <Day 30
      2  (10.30 a.m.)
      3  MR JUSTICE GRAY:  Yes, Mr Irving?
      4  MR IRVING:  May it please the court, may I just first begin, as
      5  this is our last informal session, so to speak, before we
      6  come to more formal matters, just by expressing words of
      7  my appreciation for the work put in by the defending firms
      8  of solicitors. They have had an extra burden put upon
      9  them by the fact that I am a litigant in person and I
    10  deeply appreciate their efficiency in this matter.
    11  I 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
    14  record. My Lord, I have two or three matters to deal with
    15  today. If I can propose the agenda for this morning? It
    16  would be to deal with these two or three matters of mine
    17  first which include my points on the video films, then
    18  subsequently to take up the matter of your Lordship’s list
    19  of issues, unless your Lordship wishes to put it the other
    20  way round?
    21  MR JUSTICE GRAY:  That sounds to me perfectly sensible.
    22  Mr Rampton, you do not object to that, do you?
    23  MR RAMPTON:  What I would suggest we do is Mr Irving makes his
    24  points — I had thought there was only the one individual
    25  video in question actually which was the Halle video — if
    26  he makes on that, then Mr Julius, if your Lordship will,
    .           P-2

      1  will reply on that because he knows the story, I do not,
      2  and if it goes through me, I am likely to get it wrong.
      3  Then, when we have done that and your Lordship has made
      4  whatever ruling or decision is necessary, then we should
      5  go on to the list. I also want to say something about the
      6  closing speeches which, looking at the transcript of
      7  Thursday evening, it ended up in a bit of a muddle. I do
      8  not really know what it is that I am supposed to do, but
      9  I would like to go back to that and revisit that, if I
    10  may?
    11  MR JUSTICE GRAY:  Sure. So, Mr Irving, let us start off with
    12  the —-

    Part II: Preparation for Closing Arguments (3.13-33.8)

    13  MR IRVING:  My Lord, I have put a small bundle, or two or three
    14  small bundles, in front of your Lordship. The one marked
    15  “A” in the top right-hand corner, as your Lordship will
    16  remember, there was a question as to whether the diary
    17  entry July 24th on a certain day was complete, and I have
    18  now disclosed voluntarily the entire diary entries for
    19  that week, effectively, which shows there was one sentence
    20  redacted. There was a suspicion, my Lord, that there
    21  might have been some reference to the National Alliance in
    22  that opening sentence and —-
    23  MR JUSTICE GRAY:  And there is not.
    24  MR IRVING:  There is not. If the Defendants wish to send
    25  somebody to inspect the actual computer disk on which that
    26  entry is recorded, just to make sure it has not been
    .           P-3

      1  amended 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
      5  documents where they belong. I will not do it now but can
      6  somebody 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
    10  note on the BBC gas chamber propaganda, if I can put it
    11  like that. I have put together a two-page summary of a
    12  broadcast made by one broadcaster, Thomas Mann, the famous
    13  German novelist, in November, January and June 1942 which
    14  I think are the material dates, before the Rigner letter
    15  from Geneva, and attached to that are photocopies from the
    16  published version of his broadcasts, and the footnotes are
    17  the references from his diaries which fix the actual dates
    18  when 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
    23  the second page. He talked in the second item, which is
    24  dated January 1942, of 400 Young Dutch Jews being sent as
    25  test objects for poisons gas. He corrected that on June
    26  26th 1942 to say it was 800 who had been to Mauthausen
    .           P-4

      1  where they were gassed.
      2  MR JUSTICE GRAY:  Yes. Again where is that?
      3  MR IRVING:  My Lord, you have already had something like that
      4  similar, but not in that neater form.
      5  MR JUSTICE GRAY:  Unfortunately, I have not, I think, now got
      6  all the…
      7  MR IRVING:  I will certainly refer to that in my closing
      8  address with all that detail, and so you might wish just
      9  to throw those away.
    10  MS ROGERS:  For ease, if you put in J2, tab 19, which is the
    11  next empty tab, we will provide an index to Mr Irving of
    12  everything that is in J2 and —-
    13  MR JUSTICE GRAY:  You have done that almost up-to-date already,
    14  I think.
    15  MR IRVING:  My Lord, the next matter is the Halle video or
    16  videos. If your Lordship will turn to bundle C, which is
    17  somewhat thicker, but I am not going to take you through
    18  all the documents on that, it was a bundle put together
    19  for the actual action in a lower court before Master
    20  Trench. It is bundle C. I have inserted just behind the
    21  index a photograph of the three original videos which fell
    22  into my hands. They look rather tatty and I attach
    23  importance to that.
    24  MR JUSTICE GRAY:  When you say they fell into your hands, you
    25  got these from this week, did you?
    26  MR IRVING:  Let me first of all set out —-
    .           P-5

      1  MR RAMPTON:  I thought bundle C was the witness bundle, but it
      2  is 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
      5  under 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
      9  slightly 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
    12  matter which goes to the issue of evidence, the
    13  admissibility. It also goes to the question of the
    14  conduct of the case which has a bearing on damages and
    15  costs. So, I would ask your Lordship to bear those three
    16  matters in mind.
    17  MR JUSTICE GRAY:  Well, I think I only really need to trouble
    18  you about admissibility.
    19  MR IRVING:  At this stage.
    20  MR JUSTICE GRAY:  If you want to say anything about damages,
    21  then do that in your final speech. I understand the point
    22  you are making, but we are only really concerned with
    23  admissibility now.
    24  MR IRVING:  Well, in that case that makes this session this
    25  morning much briefer because I was about to take your
    26  Lordship through the rather sorry history of how this
    .           P-6

      1  evidence was withheld from me.
      2  MR JUSTICE GRAY:  I do not think now is the right time to do
      3  that. What you are, presumably, going to say (and I
      4  express no view about it) is that the way in which they
      5  have dealt with this material is an illustration of the
      6  high handed way the Defendants have behaved and the
      7  offensive way in which they have conducted their case
      8  generally, is that the kind of point you are making?
      9  MR IRVING:  I would have used different adjectives, but that is
    10  certainly my case, my Lord, that they have used muscle,
    11  they have used wealth, they have used power, they have
    12  used experience — they are one of the most experienced
    13  firms of solicitors in this country, and I make no
    14  criticism of that fact — against myself as a litigant to
    15  try to conceal evidence from me, although the Second
    16  Defendant had sworn an affidavit, they then referred me to
    17  the affidavit to prevent me from making further enquiries
    18  saying, “You can go behind that when the time comes to
    19  cross-examine”, which, of course, has been denied me, that
    20  opportunity; and they have had these three versions of the
    21  Halle video in their hands, the Thames Television version
    22  as broadcast, the Dispatches version and then also the
    23  heavily edited version and then there is the raw version
    24  which I have looked at two or three times, particularly
    25  relating to the episode where I am standing making the
    26  speech in Halle. That too has been cut by the cameraman.
    .           P-7

      1  If they are proposing to attach any weight to
      2  this, then I would wish to make objections which your
      3  Lordship can well apprehend what those objections would be
      4  as to the admissibility. It is edited material, as a
      5  document, a video is a document within the terms of the
      6  rules of evidence and the Rules of the Supreme Court.
      7  That is why I made the original application under rule 24
      8  I think 13 or 16 to have that material struck out because
      9  of the withholding of the evidence from me. We had quite
    10  an intensive session and Master Trench, because the
    11  solicitors in that case broke an undertaking to bring the
    12  originals to the High Court for the hearing before Master
    13  Trench, I was unable to establish that it was originals
    14  and, therefore, not privileged material. But that is, of
    15  course, the other matter. That goes to the conduct of the
    16  case.
    17  MR JUSTICE GRAY:  Yes. Just concentrate on admissibility. As
    18  I understand it, you do not dispute that what was shown in
    19  court the other day is from a tape, but you say that it
    20  has been so heavily edited as to give a false impression
    21  of 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
    25  Lord. It omits major parts which, in fact, as your
    26  Lordship would see from the bundle of the letters I wrote
    .           P-8

      1  before I even was aware the tape existed when I was
      2  applying to all the television companies for the content
      3  of the speech, if your Lordship were to look at the
      4  letters that I wrote in April 1993 to all the television
      5  companies frantically trying to find anyone who had a copy
      6  of the original film, those are round about page 19, those
      7  are typical letters. Then I swore affidavits in Australia
      8  in 1994, that is long before this action was initiated,
      9  the present action, saying what was in it; the fact that
    10  I reprimanded the people for making these stupid slogans,
    11  and the fact that in the part of the speech that is cut
    12  out I said to the audience, “You people are all young.
    13  I am now old. It is the other way round. It used to be
    14  the old people sitting in front of me and me, the young
    15  person, talking to me, but now you, people, are young,
    16  I am old. I am talking to you. You are Germany’s
    17  future. The world’s eyes are upon you, you have to start
    18  behaving”. That material, unfortunately, is part of the
    19  material that has been cut out of the video tape.
    20  MR JUSTICE GRAY:  Yes, so, I mean, what you are really saying
    21  is that even in its unedited form, that is to say, before
    22  the Defendants, as it were, got their hands on it, if
    23  indeed they did, it gives a false impression because the
    24  original team — was it an Australian team — did not
    25  actually video, or This Week or whoever it was, the whole
    26  of what you said?
    .           P-9

      1  MR IRVING:  The particular one which we have is the This Week
      2  raw footage and it stops and starts, if I can put it like
      3  that?
      4  MR JUSTICE GRAY:  No, I appreciate that.
      5  MR IRVING:  Therefore, it is an incomplete record of my
      6  speech. It may be a complete record or give a good image,
      7  and I admit this, of the kind of atmosphere and the flag
      8  waving, and this kind of thing, and I possibly even say
      9  that against myself, but as far as the content of my
    10  speech is concerned, it is a dodgy record.
    11  MR JUSTICE GRAY:  Yes. It seems to me what you are telling me
    12  now really does not amount to an objection as to the
    13  admissibility of the tape, but is rather a submission you
    14  want to make that it is so heavily edited that it does not
    15  give a fair impression of what actually happened. It
    16  seems to me, perhaps, to follow that the way to deal with
    17  the problem is not to rule the tape inadmissible, but to
    18  let you, if you have not already done so, indicate what it
    19  is that has not been taped which would give a completely
    20  different impression of what you said at that meeting.
    21  MR IRVING:  Not only that, my Lord, but also the implication,
    22  the false implication, that may be given that because
    23  certain people are visible on the video, therefore, I knew
    24  them which, of course, easily obtained by cross-cutting
    25  and by cutting out large chunks. I would have preferred
    26  your Lordship to make a simple ruling that the tape may be
    .           P-10

      1  used as evidence for the atmosphere at that meeting, the
      2  kind of people who were there possibly even, but not as
      3  evidence for Mr Irving’s contact with them.
      4  MR JUSTICE GRAY:  Well, I do not wholly disagree with that. I
      5  think the only thing I would add is there were some people
      6  there, and I am afraid the names are not actually at the
      7  front 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,
    11  as far as Halle are concerned — I am sure Mr Rampton or
    12  Miss Rogers will correct me — Christian Worch, who was
    13  the organizer. I saw the video again last night.
    14  MR JUSTICE GRAY:  There is no issue about you knew he was there
    15  and indeed you had some —-
    16  MR IRVING:  I knew he was there — well, I found him there, put
    17  it like that. I travelled down there with his wife Uschi.
    18  She was there.
    19  MR JUSTICE GRAY:  Who was the other one who did the speech at
    20  the beginning with the slightly sort of receding hair?
    21  MR IRVING:  I think the allegation is that Thomas Dienel was
    22  there, a man called Thomas Dienel.
    23  MR JUSTICE GRAY:  Well, he was there, I think you accept that,
    24  and I would be inclined to conclude from the video that it
    25  was pretty obvious you realized he was there because he
    26  made the opening and closing speech. You may deny that,
    .           P-11

      1  but I mean that would seem to me to be the natural
      2  inference.
      3  MR IRVING:  I shall certainly deny it when the time comes, my
      4  Lord, because I have looked at the video again last
      5  night. We are not visible together on the video and
      6  I have no notion who this man is. There must have been a
      7  couple of thousand people there whose names I do not know.
      8  MR JUSTICE GRAY:  Again, you see, one has to look at the
      9  totality of the evidence, including your diary entries, as
    10  to how long you were there. It is the sort of thing I
    11  have to make my mind up about, I think.
    12  MR IRVING:  In that case, my Lord, if you look at the
    13  affidavits and things which are contained in the bundle
    14  which I just gave you, you will see that I state: “10
    15  minutes, made the speech and left” which is as far as the
    16  demonstration was concerned. I went there, spoke for 10
    17  minutes or five minutes, then got straight in my car and
    18  drove off. So whoever else is visible on the video for
    19  the remaining half an hour or three-quarters of an hour,
    20  it is neither here nor there. Those affidavits, of
    21  course, were sworn back in ’94 or ’93, long before this
    22  action was commenced.
    23  Of course, in my closing statement I am going to
    24  resist most energetically the notion that I had any
    25  knowledge of who those particular people were. A number
    26  of the people, I am quite happy to acknowledge having
    .           P-12

      1  known them, but I am certainly not going to admit knowing
      2  people like Thomas Dienel.
      3  MR JUSTICE GRAY:  I think you follow the way I am thinking at
      4  the moment, and say anything else you want to, which is
      5  that I do not think there really is a reason for not
      6  admitting the video, but there is certainly every reason
      7  to listen to what you say about why it is unrepresentative
      8  of what happened.
      9  MR IRVING:  Can we be specific which video we are talking
    10  about? 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
    13  the photograph I gave your Lordship this morning, there
    14  are three videos. There are two raw videos and one
    15  broadcast video as broadcast by Tames TV and another one.
    16  I think we ought to know which one we are talking about as
    17  being admissible.
    18  MR JUSTICE GRAY:  As I say, I only saw one and I think you told
    19  me (but I may be wrong about this) that this was an edited
    20  version 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
    25  the raw version.
    26  MR RAMPTON:  Yes. That is all there is.
    .           P-13

      1  MR JUSTICE GRAY:  It is No. 223 in this little pile in your
      2  photograph? The top two are unedited material.
      3  MR IRVING:  It was 226 or 227 you were shown, my Lord. It
      4  could have been either because I have checked both of
      5  them. They both contain the same footage whereas 223 is
      6  the version as broadcast.
      7  MR JUSTICE GRAY:  I see, right. What is the difference between
      8  226 and 227 then?
      9  MR IRVING:  I have had a look at them and they appear to
    10  contain 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
    14  seems to me that is something that is legitimately
    15  available to the Defendants to use as evidence, subject to
    16  your entitlement to make the sort of comments that you
    17  have been making to me this morning.
    18  MR IRVING:  I certainly shall and I shall make my comments
    19  about the manner in which they withheld it from me,
    20  knowing that I have been looking for it for five years.
    21  MR JUSTICE GRAY:  That I am not following at the moment, but
    22  that seems, perhaps, not to go to admissibility but to
    23  damages.
    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.
    .           P-14

      1  MR JUSTICE GRAY:  Well, maybe. Do you want to say any more
      2  about it?
      3  MR IRVING:  Not on the Halle video, my Lord. The other bundle
      4  E only went to the conduct of the case, my Lord. That was
      5  the evidence that they had withheld the — which now
      6  brings 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.
      9  Mr Irving has made some very grave allegations which, so
    10  far as I know, are completely illfounded against my
    11  solicitors.
    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
    14  to have an opportunity to tell your Lordship briefly what
    15  did happen. I only say this, that what your Lordship has
    16  seen is not edited in the sense that somebody has sat in a
    17  cutting room cutting it. It is the film shot by the
    18  cameraman. One knows that it is entire because the timing
    19  thing, the little black oblong at the left-hand side, is
    20  continuous. So if it has been edited, it has been edited
    21  in that sense simply because the cameraman got bored and
    22  went and had a cup tea or whatever.
    23  MR JUSTICE GRAY:  Well, that is not quite the way I would look
    24  at it. I suspect the cameraman, whoever he may have been,
    25  was looking for things that he thought would be good,
    26  juicy broadcasting material.
    .           P-15

      1  MR RAMPTON:  No, I was being slightly frivolous, but if there
      2  has been any editing, it is by the become cameraman’s own
      3  selection.
      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
      7  did not chose to include.
      8  MR IRVING:  My Lord, the cameraman was, I think, Michael
      9  Schmidt who was this cameraman —-
    10  MR RAMPTON:  That is as may be. He is not my servant or agent
    11  and we have nothing to do with the way that film looks on
    12  the screen.
    13  MR IRVING:  Well, it goes to his Lordship’s comment that the
    14  cameraman would have picked what interested him.
    15  MR JUSTICE GRAY:  Mr Julius, do we really benefit by going into
    16  detail as to the history of these videos?
    17  MR JULIUS:  I do not think so, my Lord, and I am not proposing
    18  to do that. If I may, I will just make three points. The
    19  first point is nothing was withheld from Mr Irving. On
    20  the contrary, this is a tape on which we place some
    21  reliance. The suggestion that we would not want to show
    22  it to Mr Irving or to show it to the court is, of course,
    23  absurd.
    24  The second point I make is that no undertaking
    25  was broken.
    26  The third point I would make is the point that
    .           P-16

      1  has just been made by Mr Rampton, and that is that the
      2  tape your Lordship saw was not edited in any way.
      3  MR JUSTICE GRAY:  No. I think I had misunderstood the position
      4  as to the editing, but can you just help me about this?
      5  I am not sure that I know what or, indeed, need to know at
      6  this stage what the argument was, but you, you the
      7  Defendants, had in your possession a copy of these videos
      8  from when, from day one, as it were, or?
      9  MR JULIUS:  No, my Lord. What happened was this. During the
    10  course of preparing the case for the trial, a huge amount
    11  of material, as your Lordship can imagine, was being
    12  generated. It was being generated within the firm, it was
    13  also coming in from third parties. Lists were being drawn
    14  up on a periodic basis to send the material over to
    15  Claimant. This came in, I understand, after the last list
    16  was produced and at the time the view that was taken of it
    17  was that it was material generated for the purposes of
    18  litigation and, therefore, on the face of it, privileged.
    19  MR JUSTICE GRAY:  Privileged? How could it possibly be
    20  privileged?
    21  MR JULIUS:  Well, this was the preliminary view that was
    22  taken. In the event, it is not privileged. In so far as
    23  privilege was ever claimed for it, the privilege was
    24  waived. It is plainly a video that is important to the
    25  case, relevant to the issues and disclosable to the
    26  Claimant. It was disclosed to him and he has had it for
    .           P-17

      1  a year now. He was keen to have it, and it is slightly
      2  odd that he should now be keen to exclude it.
      3  MR JUSTICE GRAY:  Can I just ask one more question? For how
      4  long 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
      7  already said, I am satisfied that it is admissible, this
      8  tape, but I leave it open to both parties to make whatever
      9  comments they think it necessary or appropriate to make
    10  about the use that has been made of it in the short period
    11  when it was not disclosed on the basis it was privileged,
    12  and 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
    15  to make about the opening, the list of issues?
    16  MR IRVING:  I think both Mr Rampton and I have a few,
    17  I certainly have very few comments to make on your
    18  Lordship’s list. I am going to use the list as a North
    19  Star 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
    22  justify —-
    23  MR JUSTICE GRAY:  Of course.
    24  MR IRVING:  — and they have to justify seriatim, whereas I
    25  shall reserve to myself the right to pick out major points
    26  which I consider would justify my conduct.
    .           P-18

      1  MR JUSTICE GRAY:  Yes. One thing that I think is perhaps
      2  missing from this, and it is not missing because I did not
      3  have it in mind, it is just that it did not strike me as
      4  perhaps worth including a separate little heading for, but
      5  I mention it because you will want to place reliance on
      6  it, 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
    11  sought to be substantiated.
    12  MR IRVING:  Section 5, my Lord, yes, the Hisbollah and
    13  Hammas —-
    14  MR JUSTICE GRAY:  You say section 5. That is perhaps a
    15  slightly defensive way of looking at it, but that is
    16  something that also needs to be addressed as a topic.
    17  MR IRVING:  That was precisely the one point I was about to
    18  make, my Lord, that I was unaware whether this was a
    19  deliberate omission that you thought was unnecessary even
    20  to tell me that because —-
    21  MR JUSTICE GRAY:  No, I think the reason for it, if there needs
    22  to be a reason, is that I was focusing entirely on the way
    23  the plea of justification is put. That does not, of
    24  course, mean that I do not have to have in mind what was
    25  published and what has not been sought to be justified.
    26  MR IRVING:  That was, in fact, the only detailed point that
    .           P-19

      1  I wished to make about it, my Lord.
      2  MR JUSTICE GRAY:  I have one other observation which is
      3  probably sensible I should make whilst you are on your
      4  feet, and it relates to the, and it is my word, well,
      5  I 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 —
      7  the Claimant’s honesty as an historian. I think that is a
      8  slightly unsatisfactory gloss to put on what I understand
      9  the Defendants’ case to be, and I did not want you to be
    10  misled by the fact that I have used that label. It seems
    11  to me that it begs too many questions to be helpful. The
    12  allegation sought to be justified, and the meaning which
    13  it is accepted, I think, was borne by the words that
    14  Professor Lipstadt used, was that you were deliberating
    15  distorting the data, etc., etc., etc. —-
    16  MR IRVING:  Precisely.
    17  MR JUSTICE GRAY:  — because you have an agenda of your own.
    18  Well, I can see that that might in some ways be described
    19  as dishonest conduct on the part of an historian, but
    20  I just thought I ought to make clear that I am not very
    21  happy with that word “honesty” used without a clear
    22  explanation of what in the context of this case it
    23  actually means.
    24  MR IRVING:  My Lord, I had clearly apprehend exactly what your
    25  Lordship intends with that word. It is a manipulation,
    26  deliberate false translation and distortion.
    .           P-20

      1  MR JUSTICE GRAY:  I think I will avoid it because I think it
      2  begs too many questions, as I say. So that is all you
      3  have, is it, on the —-
      4  MR IRVING:  No, my Lord, but I do know that Mr Rampton has a
      5  number of points that he wishes to make.
      6  MR JUSTICE GRAY:  Yes, I know he does and he has very
      7  helpfully, 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
    11  one word substitution for “honesty”, it might be
    12  “integrity”, “integrity as an historian”. No, I prefer a
    13  longer version.
    14  MR JUSTICE GRAY:  I think it is better and I am not saying this
    15  tendentiously in either way.
    16  MR RAMPTON:  No, I realise that. It was perhaps too narrow as
    17  it stood and perhaps “integrity” as well is too narrow for
    18  what we are talking about or we think we are talking
    19  about, but we know what comes in under this heading which
    20  already will have been dealt with as we have been through
    21  the historical distortions, if I can call them that.
    22  My Lord, there is one typographical error in
    23  5.1(e) in the bit which we added, “Hitler’s views on the
    24  Jewish question during the war, including Goebbels’
    25  diaries entries”, it should be the 22nd not the —-
    26  MR JUSTICE GRAY:  I have the 21st actually. I have just
    .           P-21

      1  spotted that that was not right. I suspect the reason is
      2  it is a diary entry for the following day, I do not know.
      3  MR RAMPTON:  That is right. Something went wrong there. Yes,
      4  and I do have the German of that which goes in bundle N at
      5  pages 127 and 127B. The English is already there, thanks
      6  to Professor Evans. But the German somehow got missed
      7  out. 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
    10  children yet, has it?
    11  MR JUSTICE GRAY:  Yes, it has. E is the most difficult one
    12  because —-
    13  MR IRVING:  It is very exclusive, is it not? It excludes a lot
    14  of the entries that I would have relied upon.
    15  MR JUSTICE GRAY:  Well, yes, it is exclusive and at the same
    16  time it is inclusive. I had not realized it is spread as
    17  wide as this, at any rate in the context of the
    18  historiographical criticisms.
    19  MR RAMPTON:  It does, and there are very, very grave criticisms
    20  to be made of Mr Irving in relation to each of those items
    21  in the bracket, and they all relate to the way in which,
    22  according to our case, he has tried to suppress, mollify
    23  or distort Hitler’s expressions of his anti-Semitism
    24  during the war, particularly during the later part of 1941
    25  and the early part of 1942.
    26  MR JUSTICE GRAY:  Yes, I can see how they come in now.
    .           P-22

      1  MR RAMPTON:  Those are inclusive rather than exhaustive.
      2  MR JUSTICE GRAY:  Yes. I mean the problem I have with them is
      3  that they come in elsewhere too.
      4  MR RAMPTON:  I know they do. There is bound to be some
      5  repetition. That is inevitable.
      6  MR JUSTICE GRAY:  I know. Can I ask you what the significance
      7  is, I think I do understand, of adding decrypts to
      8  whatever it is, 3B?
      9  MR RAMPTON:  Yes, that is simply because Mr Irving relies on
    10  two pieces of evidence, if I can call it that, for the
    11  suggestion that the number killed or died at Auschwitz was
    12  really quite low. One is the death books which were
    13  released by Moscow sometime in recent years, and the other
    14  thing is the Hinsley decrypts do not make any reference
    15  gassings at Birkenhau.
    16  MR JUSTICE GRAY:  Yes.
    17  MR RAMPTON:  So they really go together, and our explanation
    18  for that is that really they are the same in both cases or
    19  similar anyway.
    20  MR JUSTICE GRAY:  Yes. As I say, I am inclined to add, if we
    21  are making this as complete as it is becoming, two further
    22  topics at the end, which is the conclusion as to
    23  substantial truth and the availability, if required, of
    24  section 5, and then lastly damages, if any, injunction.
    25  If any.
    26  MR RAMPTON:  Would your Lordship be wanting then to transfer
    .           P-23

      1  some particularity out of 4 on the first page?
      2  MR JUSTICE GRAY:  No, because that is conclusions as to the law
      3  that applies, is it not, rather than conclusions?
      4  MR RAMPTON:  So 11 would be facts arising out of 4, would it
      5  not, 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
      9  final speeches either of you come across topics that
    10  should be there but still are not, perhaps you could let
    11  me know by fax?
    12  MR RAMPTON:  We certainly will. That brings me to what to us
    13  is a matter of, to say some concern sounds over-dramatic,
    14  but it is this. I do not want and do not propose to ask
    15  your Lordship for permission to stand here for three days
    16  speaking. That would not be interesting for anybody and
    17  it would not be a good use of the court’s time. However,
    18  this is a case of some peculiar importance, we would
    19  submit, and it has a legitimate interest for the public
    20  which runs far beyond the particular interests of the
    21  parties, and I do concede that it is the sort of case in
    22  which it would be appropriate, with your Lordship’s
    23  permission, for both sides to be allowed to make a
    24  somewhat longer, but still not very long, longer closing
    25  statement than they made in opening. In my case, it would
    26  not necessarily follow the same structure as this, the
    .           P-24

      1  long version, but it would certainly reflect the material
      2  within it.
      3  There are two next questions. First, when does
      4  your Lordship believe that that should happen, because
      5  again the public needs to know when it is going to
      6  happen? As a corollary of that, whether there is any
      7  possibility of accommodating rather more people in this
      8  court than are presently able to get in?
      9  MR JUSTICE GRAY:  Taking all that in reverse order, and subject
    10  to Mr Irving and then you can comment if you wish, I see
    11  your point about letting more people in. This court I
    12  think in the end probably accommodates as many members of
    13  the public as any court does, but it is never enough in a
    14  case of this kind. But, yes, I think, subject to
    15  agreement with all those concerned, particularly the Usher
    16  who has done a rather excellent job of keeping things
    17  under control —-
    18  MR RAMPTON:  Mr Irving has been sycophantic towards my
    19  solicitors, for which I genuinely and sincerely thank
    20  him, I do wish to say what a fantastic job the Usher has
    21  done.
    22  MR JUSTICE GRAY:  I think she has done a jolly good job because
    23  it is not all that easy. But, yes, within reason I think
    24  we will try to accommodate that. I am just wondering
    25  about the desirability of you and, if Mr Irving wishes to,
    26  Mr Irving, making what you might call the sort of public
    .           P-25

      1  comments that you wish to make, as it were, before we get
      2  on to the nitty-gritty of the closing speeches.
      3  MR RAMPTON:  Your Lordship may well have rather, if I may say
      4  so without impertinence, a good point, because it does
      5  seem to me that when your Lordship has had a chance to
      6  look at the nitty-gritty, I am going to write the
      7  nitty-gritty first, and then what one might call the
      8  summary. I would suggest that it may be advantageous if
      9  your Lordship’s mental process is the same, because when
    10  you have read the nitty-gritty, then you look at the
    11  summary and you say, oh, he cannot say that, it is not in
    12  the evidence or it is an exaggeration or whatever. One
    13  could get the long version to your Lordship, we will try
    14  to do it by Friday, but at any rate by Monday morning,
    15  take a day, because it will not take long to read as your
    16  Lordship is so familiar with the material, I can
    17  practically do it from memory now, and then look at the
    18  summary and then maybe read the summary on Tuesday, 14th.
    19  MR JUSTICE GRAY:  Yes, at all events whenever it happens, and
    20  it does not really matter whether it happens before or
    21  after the detailed submissions, my idea is that we might
    22  have the two final public speeches, if you follow what
    23  I 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.
    .           P-26

      1  MR JUSTICE GRAY:  Not simultaneously.
      2  MR RAMPTON:  I do not think that would be music to anybody’s
      3  ears I have to say, but certainly on the same day. It
      4  would have to be, I say “have to be”, that is excessive,
      5  but it would be desirable to have a fixed day because
      6  there will be people coming from all over the world to
      7  attend to attend.
      8  MR JUSTICE GRAY:  Shall we say Wednesday, because I suspect
      9  that will get us most of the way through the detailed
    10  submissions.
    11  MR IRVING:  My Lord, your Lordship expressed the desire I think
    12  to 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
    16  part?
    17  MR JUSTICE GRAY:  No, what I am getting at is if we have two
    18  full days, Monday 13th and Tuesday 14th, I think we will
    19  be most of the way through closing speeches, I suspect, if
    20  you let me do a bit of reading beforehand. Then on
    21  Wednesday, there may be a little left over, but Wednesday
    22  would be a good opportunity I think to make these
    23  statements for public consumption, which in the context of
    24  this case is legitimate. I think in other cases it might
    25  not be.
    26  MR IRVING:  So, if I understood it correctly because there was
    .           P-27

      1  some confusion on Thursday evening, by the weekend I and
      2  Mr Rampton would have submitted to your Lordship a paper
      3  version of what we intend to say?
      4  MR JUSTICE GRAY:  If you can do that it would be helpful, that
      5  I think is what I said on Thursday.
      6  MR IRVING:  On the basis of which on Monday and Tuesday you
      7  will ask us questions, and on Wednesday we read out either
      8  in Mr Rampton’s case his summary or in my case whatever
      9  I consider necessary of my speech in public.
    10  MR JUSTICE GRAY:  Yes. When you say I will ask questions, do
    11  not put the ball wholly in my court. I am hoping you will
    12  submit something in writing, but will also make the points
    13  that you regard as most significant and then I can pick
    14  you up on them if needs be.
    15  MR IRVING:  My Lord, I am making further submissions, as your
    16  Lordship is aware, of which of course the Defence have not
    17  had a chance to answer, and it is only fair they should
    18  have a chance to answer and say, “This be struck out, that
    19  is not admissible, yes, this one is very powerful indeed”.
    20  MR RAMPTON:  I would propose this, that we, with Mr Irving, it
    21  does not need to involve the court, we make a date and a
    22  time for exchange of the long versions, and also the
    23  summaries if they are ready by then, then we see whether
    24  there is any water between us, and it may well be that
    25  there is, either side may be something the other side does
    26  not think they ought to be allowed to say, and your
    .           P-28

      1  Lordship may also have some queries or questions of your
      2  own.
      3  MR JUSTICE GRAY:  Yes. As to timing, if you could do it by
      4  close of business on Thursday, even if it is not the
      5  final — 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
      8  do by close of business on Friday. It will not take very
      9  long to read. One reads quite quickly when one knows a
    10  case well. I am told Friday logistically is optimistic.
    11  We will do the best we can. We will fix that with
    12  Mr Irving.
    13  MR JUSTICE GRAY:  I will not say anything about it, except that
    14  I think we ought to have speeches on Monday 13th. I do
    15  not want a slip on that.
    16  MR RAMPTON:  A discussion about speeches?
    17  MR JUSTICE GRAY:  The detail of speeches will start on Monday
    18  13th.
    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
    22  accommodation being laid on, as it were, for Wednesday.
    23  MR RAMPTON:  The only other question is, and normally speaking
    24  in a case like this when one has written a long speech
    25  which the Judge has read, even if one is not going to read
    26  it in court, it will of course be accessible to anybody
    .           P-29

      1  who wants a copy of it, whether they pay for it or whether
      2  they do not, and there ought to be perhaps an embargo on
      3  the release of the long version until the discussion about
      4  the 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
      7  bit of ahead of myself. It is this. When your Lordship
      8  comes to give judgment in the normal way the solicitors
      9  and counsel get a copy of the judgment a day before.
    10  Mr Irving does not have solicitors or counsel. (A) it is
    11  not fair if we get it a day before and he does not. (B)
    12  it is not fair if he gets a copy himself and my clients do
    13  not.
    14  MR JUSTICE GRAY:  Oddly enough I did not think I have ever had
    15  it.
    16  MR RAMPTON:  I have.
    17  MR JUSTICE GRAY:  One has had cases with litigants in person,
    18  but I have never had this particular problem about how you
    19  deal with — my instinct would be that Mr Irving does get
    20  it at the same time as your legal team get it, but that he
    21  is, as it were, strictly embargoed as to the use that he
    22  can make of it. That seem to me to be the fair-handed way
    23  of doing it.
    24  MR RAMPTON:  That is all I am concerned about. What I do not
    25  want is him getting it into the public forum before we do,
    26  if I can put it crudely.
    .           P-30

      1  MR JUSTICE GRAY:  Can I mention some things that perhaps should
      2  be done before speeches. One is the Muller document.
      3  MR RAMPTON:  Yes, it is in hand. It is being dealt with by
      4  Dr Longerich who is dealing directly with Munich and I
      5  think also with Ludwigsburg where it is thought there is
      6  another copy.
      7  MR JUSTICE GRAY:  Bearing in mind how quick Munich was to
      8  respond on the other document, I would be hopeful that you
      9  would be able to let me have something this week.
    10  MR RAMPTON:  Yes. This is more problematical because they have
    11  been given the wrong file reference.
    12  MR JUSTICE GRAY:  I thought they had tracked down the right
    13  file?
    14  MR RAMPTON:  No, they know that it is the wrong one. They
    15  think they have the document but they have got to find
    16  it.
    17  MR IRVING:  The problem with Munich is all that all that they
    18  have is a duplicated copy.
    19  MR JUSTICE GRAY:  I know and that is why enquiries are being
    20  made of other archives, as I understand it. That is
    21  fine. Mr Rampton, the other thing, and it is the only
    22  thing that I think I need to ask you about is, I think you
    23  were going to give me a little bit help on what you might
    24  call the American Civil Evidence Act statements.
    25  MR RAMPTON:  Yes. That is in charge of Miss Rogers. We are
    26  just down to the one now. The only one of the factual
    .           P-31

      1  Civil Evidence Act witnesses we want to use is Rebecca
      2  Guttmann about the National Alliance which I have already
      3  cross-examined on. Your Lordship can have this. It has
      4  file C, Rebecca Guttmann, and the rest can be chucked
      5  away.
      6  MR JUSTICE GRAY:  When you say the rest, can I be absolutely
      7  clear 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
    13  I should think.
    14  MR JUSTICE GRAY:  I now seem to have back the file I swore
    15  blind I never had.
    16  MR RAMPTON:  That is the one with the National Alliance
    17  material behind it.
    18  MR IRVING:  When you say you are using Rebecca Guttmann’s
    19  statement, does that mean to say you are also using all
    20  the 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
    24  a National Alliance meeting in 1998 at which Mr Irving
    25  gave a speech.
    26  MR JUSTICE GRAY:  Thank you.
    .           P-32

      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
      5  this 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).
    .           P-33