Posted Saturday, July 14, 2001

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Thursday, June 21, 2001 (London)

Day 2 of the Lipstadt appeal


I ARRIVE at 10.32 a.m., as the Court is already in session. [Counsel] Adrian Davies is dealing with the judgment, Paragraphs 13.3 and 13.4: "It is not sufficient to say that Mr Irving carried out only partial research". He continued that it was the difference between negligence and deceit. Davies continues that he will in fact adopt many of Mr Justice Gray's findings as primary fact. But not the conclusions. He has misdirected himself, for example at Paragraph 13.70.

Lord Justice Buxton, seated on the right, interrupts about Paragraphs 13.68 to 13.70.

Mr Davies puts it thus:-

In 1988 Mr Irving was impressed by Fred Leuchter. Leuchter was a Gas Chamber Consultant. Professor Roth changed his mind about Auschwitz, and then Roth did a re-analysis, coming to the opposite of his original conclusion. Buxton then interrupts again to quote Gray's judgement at Paragraph 13.68:- "When the trial started, etc."

Adrian Davies explains that there had been no gassings at Auschwitz I, but there may have been at Birkenau, otherwise known as Auschwitz II, he continues, but until the Leuchter report, Mr Irving was uninterested in the Holocaust. It was only one aspect of the history that he wrote.

(Lord Justice Pill, the presiding judge, interrupts to explain to the Court that we are hearing Mr Davies on the merits of the case, the Application for Commission and the Appeal are being heard both together.)

Mr Davies: Mr Irving is trying to prove that the weight of the evidence, the later evidence, "supports and fortifies" his view. He should have said, "You can't call me a perverter of the evidence, just because Leuchter has long after 1988 been questioned."

Lord Justice Pill: "Does Judge Gray analyse where the state of mind of Mr Irving changed? Mr Irving rather brought this upon himself by arguing his present beliefs."

Mr Adrian Davies says: "Judge Gray should have redirected Mr Irving on the proper case that he should be following." Gray J went badly wrong, too -- see Paragraph 13.70. At 13.73, he does a 180 volte face: the facts that Gray finds are not consistent with the conclusion that he draws. At Page 74, Pelt refers to "a massive quantity" of eye witnesses and documents. But Gray says there is no evidence at all. The only evidence is the letter from Bischoff. Davies refers to the letter from Bischoff, and reads out Paragraphs 13.73-13.74 and 13.75 of the Judgment.

Lord Justice Buxton requests that he take it down to Gray J's conclusion at 13.91. He asks: "Did the Judge misdirect in his conclusion at 13.91?" Adrian Davies argues at length: "If Mr Irving had wilfully perverted (13.91) the evidence on Auschwitz, the court will be right to say: "Out you go!"

Lord Justice Mantell: "Could that dispose of the Section 5 point?" [i.e. section 5 of the Defemation Act]. Lord Justice Pill says: "But you are arguing that the timing is important?"

Adrian Davies says: "It is a major problem to which Mr Justice Gray should have adverted more closely." Lord Justice Pill says: "I am just not following. "How are we to take Paragraphs 13.71 to 13.90? If the contention is right, then that is the end of the case."

Adrian Davies: "If at any point between 1988 and 2000 for any sustained period the Defendants can show that Mr Irving adopted a perverse position, with wilful blinding of himself ....

Lord Justice Pill says: "The point of time includes a trial."

Adrian Davies: (quotes Paragraph 13.69).

Lord Justice Mantell: "Did he [Irving] concede under examination in chief or in cross-examination? Did he volunteer these statements?"

  1. Did Judge Gray correctly direct himself (Adrian Davies says: "No"). i.e. he misdirected.
  2. Assuming he did not put the question correctly, did he answer the question correctly?

Adrian Davies disagrees and quotes the authority he relies on.

Lord Justice Pill says: "What you now say is not what Mr Irving said in his books, today it is what he said at trial. But you would say Mr Irving has not written on this point.

Adrian Davies refers to concessions made by Pelt and Bischoff. He compares Mr Justice Gray's Paragraph 13.73 of the document with Paragraph 138 of his own skeleton argument.

Lord Justice Mantell asks Adrian Davies to give the second point, which Gray relies on ... Paragraph 13.149.

Lord Justice Mantell refers to the other Bischoff documents.

Lord Justice Buxton comments that all this is "a dispute on fact". "What do you expect us to do?"

Adrian Davies says:-

  1. If Judge questions the Bischoff document in Paragraph 13.73, he should not accept it in 13.149.
  2. If the Judge himself finds curious features about the document, and Van Pelt concedes that two such features are not to be found in any other Auschwitz documents, is Mr Irving being perverse in questioning the document?

Mr Justice Pill: "That is what I want your help on."

Adrian Davies: "I would advise you to answer this question instead. Paragraph 7.129. The conclusion does not follow from the premises. The conclusion is not that the Bischoff document is a forgery. It is that Mr Irving's conclusion is motivated by an ideological impetus. But Mr Irving is driven by a political agenda..." Mr Justice Gray is not justified....

(Lord Justice Pill writes all this down).

Lord Justice Pill: "Van Pelt accepted it as authentic: the Judge accepted Van Pelt. Judge Gray was entitled to find as he did."

Adrian Davies: "It is a very, very large leap to draw the conclusion that Mr Irving was being perverse and ideologically driven in disputing the document."

(Lord Justice Buxton intervenes helpfully.)

Adrian Davies then points out: "Van Pelt was not trained in a forensics laboratory to determine the authenticity of the documents. Van Pelt was a "cultural historian".

Lord Mantell: "The question was whether a reasonable historian was entitled to doubt its validity.

Adrian Davies praises Van Pelt on the history, but not on his ability to authenticate documents.

Lord Justice Pill says: "Mr Justice Gray says that Mr Irving applies double standards."

(It is now 11.58am.)

Mr Davies now comes to Paragraph 13.76 and points out that thousands could have been killed by other means than gas. (Mr Davies rather loses me with his narrative and probably the Court as well. He refers to the British-intercepted telegrams which Höss sent to Berlin, to the WVHA.)

13.77 The eye witnesses. Coming to Henryk Tauber, Davies says that he was the one who talked of manufacturing sausages from human bodies in the crematorium (he confuses Tauber with David Olère, and I correct him).

Then Lord Justice Buxton educates Davies. A Judge first of all warns hinmself about the evidence, and then he assesses it. For example, on Paragraph ..., and then he applies "judicial consideration". The fact is that the Judge originally warned himself.

Adrian Davies points out that Judge Gray hasn't actually seen Olere, he was testifying in 1945.

Lord Justice Buxton said that where Judge Gray arrived at a conclusion, a Judge is entitled to come to it.

Asked Adrian Davies concluded by saying "that this Court must review the Judge's conclusions." Judge Gray was relying on "the convergence of evidence". But some Witnesses were saying things that are beyond belief. Lord Justice Buxton asks what is wrong with the Olère drawings.

Adrian Davies deals then with the Olère drawings and he then refers to Höss's "2.8m" killed, and says all the eye witnesses are open to doubt. In that case Mr Irving is entitled to his doubts about the whole corpus of eye witnesses evidence. The conclusion of Paragraph 13.78 depends entirely on the correction of the premise that the totality of evidence is so overwhelming.

Lord Justice Mantell: "But Mr Irving asserts that no gassings took place at Auschwitz.

Lord Justice Buxton: ...says ... "at the beginning of Auschwitz." (Adrian Davies asks which Auschwitz are you referring to).

Lord Justice Mantell asks: "Could a reasonable historian...."

Lord Justice Mantell asks: "Does Van Pelt agree that there were no gassings at Auschwitz I (No). And that he said "that the gas chamber at Auschwitz I was a fake" (Yes, and Van Pelt agrees).

Adrian Davies: "It may be wrong, very wrong, to say that no mass gassings occurred at Auschwitz. Eventually, evidence may be strong enough to make a contrary assertion a perverse position. It was not perverse in 1988. Nor at the trial. Then confronted by evidence at the trial, Mr Irving resiled from his position. The assertion is supported by remarkably few documents and credible eye witness evidence. If the Judges conclude that Mr Irving is wrong, that would not dispose of the Appeal. The Defendants must show that the facts were so monstrously evident, that no reliable historian could say the opposite. Mr Irving is not a perverter, or falsifier, or liar."

Lord Justice Mantell observes: "The Defendants aren't just saying that Mr Irving is a "chump".

Lord Justice Buxton interrupts: "Look at Paragraph 13.80, the first sentence."

Mr Davies: "Van Pelt relies on Roth, as did earlier Mr Irving. If Mr Irving persisted in this today, relying on Roth, that would be perverse. I can't rely on Germar Rudolph to justify as it [the Rudolf Report] was not before Judge Gray."

Lord Justice Pill says: "If Proposition A relies on material X, Y, should he abandon it if X, Y is wrong, but material Z comes along."

(We then adjourn for lunch.)

At 2.30 pm the Court resumes.

Photo No. 38 is not admitted, as it has not been properly proofed. Adrian Davies then refers to Judge Gray's misdirection of himself. We come to the holes in the roof. Davies says that this argument was no part of Mr Irving's 1988 scepticism, but by 2000 new matters have come to his attention. See Paragraphs 13.81, 13.82. He asks them to read the last lines of Paragraphs 7.92 to the end and 13.83.

Richard Rampton, QC wants the Judges to read Paragraph 13.83.

Mr Justice Gray says, despite his speeches, "Irving's argument deserves to be taken seriously." Davies reads out the last lines of Paragraph 13.83. He concludes:-

  1. It is perverse to conclude that Mr Irving should not have ... It is a matter of judgement for a historian.
  2. If the cumulative evidence is weak, then the argument is less. Mr Irving had reasonable grounds for doubt, if Crematorium No.2 was indeed the 'epicentre" of the murder.
  3. ... (not recorded).

Lord Justice Pill said something about "3 issues in a case."

Mr Davies: "Mr Justice Gray wrongly assessed the relevant weights of evidence." He notes the extreme thinness of Paragraph 13.89. Gray talks of the "strict rule of secrecy" but why should there have been any secrecy? The code messages from Auschwitz to Berlin were 'Top Secret', and in code, so why would Höss have kept things secret? EvansWhy should the cold-blooded murderer, Höss, have been coy about mentioning the gassings, if he had mentioned all the other killings that were going on?

Lord Justice Buxton asks: "Did [Prof. Richard] Evans (left) give any evidence on this?"

Adrian Davies explains that this was not Evans's pitch. Nobody explained and there is no reference to the gassings in the decrypts.

Lord Justice Mantell: "Mr Justice Gray gave two reasons. The second, if conclusive, is right. (That is the fact that the prisoners due to be gassed were not registered).

Davies says: "Nobody suggests that only the non-registered inmates were gassed.

At 3.03pm Adrian Davies gets on to the question of coke consumption.

Judgment paragraph 13.90 He objects strenuously to Judge Gray's acceptance of Van Pelt's expert evidence on the subject. Van Pelt had no qualifications whatsoever on this matter. Van Pelt knows nothing about cremation technology.

(Lord Justice Mantell interrupts.)

Adrian Davies says again that Pelt was not qualified.

Lord Justice Pill says: "Historians must be able to make evaluations on technical matters."

Adrian Davies offers other examples. HMS Hood was sunk in May 1941 with three survivors. Naval historians say that the shell was fired by Prinz Eugen, and not the Bismarck. A historian could not come to a technical conclusion on the ability of the smaller ship to fire such a shell.

Lord Justice Pill suggests: "He could look at the manuals of German gunnery!"

Lord Justice Mantell "has asked for a sight of the document." He asks "less than politely."

Adrian Davies interrupts: "I have not come prepared to argue the underlying merits of the Pelt document."

Lord Justice Mantell: "Mr Justice Gray should have said nothing about it on either eye witness."

Lord Justice Pill queries: has he noticed the italicised sentence above correctly, as he finds it a "hard position:. He is unhappy with Adrian Davies's example of HMS Hood.

Mr Davies continues: "If it were suggested that Van Pelt was a self-taught crematorium expert that would be different."

Lord Justice Pill again is angry at not seeing the document.

Adrian Davies says: "I would not ..."

Lord Justice Mantell says "the point is of no use to you at all."

Mr Davies then comes to the cremation figures for Gusen Concentration Camp, which were 35kg of coke per corpse. (That is Transcript Day 8, January 24, Page 131.)

Lord Justice Mantell: "So you are withdrawing the concession."

Lord Justice Pill interrupts: "Well, we have been over it."

Adrian Davies: "Neither side can properly give evidence on it. Mr Irving has cut his own throat by failing to bring any scientific evidence."

He then deals with Paragraph 13.91.

Mr Davies continues: "The case comes down to this. Mr Irving asks the Court of Appeal to consider: Was he being perverse in 1988 in relying on Fred Leuchter? Did Mr Irving become perverse by persisting in his doubts about the received history of Auschwitz, or was he being perverse, or was he expressing reasonable doubts because of the holes, the eye witnesses, the decrypts, and other matters.

He continues: " If Mr Irving was not perverse in 1988, and he did not become perverse later, ... unless their Lordships are able to conclude to a very high standard that Mr Irving was not honestly doubting, but was bent on whitewashing the Nazi regime, putting a version of history so utterly unsupported, then the justification finding against him would not be upheld."

Davies is drawing to the end of his submissions, and at 3.35pm I murmur to him, "Don't forget Evans".

Lying Book

Adrian Davies begins by saying: "Because of the chaos [caused by the previous solicitors acting for] his Client I don't know what new materials have been sent to Davenport Lyons [solicitors for Penguin Books]." Among the new materials, is the book by Professor Evans. He concedes, "This is a Ladd v Marshall issue."

Lord Justice Buxton impatiently asks: "What is your complaint?"

Adrian Davies says: "Evans was biased, he disliked David Irving, and consequently his evidence is to be given less weight than Gray gave to it.

Lord Justice Buxton: "Mr Davies must demonstrate that the bias led to him giving wrong evidence. And that Gray J relied on Evans..." Buxton adds with a degree of menace that what Davies is alleging in Evans is "mendacity", which is a serious charge. (It is noticeable that unlike yesterday and this morning, Evans is suddenly not present in the courtroom. I suspect that Rampton has drawn the appropriate conclusion from the six copies of the Evans book (US edition) stacked up on our counsel table.)

Adrian Davies: "My submission is this: Evans gave the most crucial evidence on a range of subjects. He was the defence's key witness. He said: "Irving is not a historian at all." If Judge Gray had been of the view that Evans had a pronounced animus against Mr Irving, the Court is entitled to disregard his evidence. Professor Evans is not an impartial, unbiased witness. What he wrote after the trial so strongly reveals his state of mind, his personal animus ... (and Davies refers to Paragraph 5 of his skeleton argument).

Adrian Davies says that Evans had told The Times that Mr Irving is "not a historian."

Lord Justice Pill: "Are you going to pursue the application that you make in Paragraph 19 of your skeleton?"

(Davies reads out on Day 18, Page 110, the cross examination of Evans on oath on February 10, 2000, in which this expert witness claimed, when challenged, to be neutral toward Mr Irving.)

Lord Justice Buxton: "If you are going to come and say that a Witness has lied, you have got to say so in a Notice of Appeal. When did you obtain this evidence that Evans was a liar?"

Adrian Davies blames Nigel Adams for having given so little fore-warning on this and other matters to the other side.

Lord Justice Buxton: "We are making an application that a Witness in the Court below lied to the Judge?"

Lord Justice Pill: "You haven't answered my question. Are you proposing to make a case on Paragraph 19?"

Adrian Davies: "The allegation is in the skeleton argument."

Lord Justice Pill blames Mr Davies for not giving notice of the application for introducing Evans' book as evidence of the bias.

Mr Rampton is on his feet: "Professor Evans is not present" he shouts, and is Mr Davies not aware of the rule of the Bar Council which states that Counsel should not raise matters concerning the testimony of Expert Witnesses unless that Witness is present in Court. This leads to a heated discussion. Judge Pill finds that hard to believe.

Mr Davies says that in an appelate Court like this, a witness is not normally present anyway.

Lord Justice Pill demands that Mr Davies now state a formal application about Evans. Mr Davies makes the application, namely to put the Evans book to the three appeal court judges, as the book carries the clear proof that Evans has "animus, hostility, and loathing of Mr Irving."

Rampton leaps to his feet to protest at the inclusion of these words.

Lord Justice Pill refers to the evidence. Paragraph 19 and Paragraph 71 of the skeleton are already strong evidence.

Mr Rampton again objects to this late application. The Evans book was published earlier this year. On March 24 the Irving website already reviewed the book. On January 17, the Court had ordered that all documents should be put to the Defendants. "Mr Davies has brought out this application from under the carpet." Professor Evans, says Rampton, did not give any evidence susceptible to any challenge to his credibility. Mr Davies must demonstrate the actual credibility cause, and again he points out that Evans is absent from the courtroom.

Adrian Davies doggedly states: "Professor Evans was a key witness on the Defendant's side." The Defendants chose not to call either Defendant, Lipstadt or Penguin. Professor Evans led the attack on Mr Irving's reputation as a historian.

Adrian Davies reads out some parts of Evans's Expert report until Lord Justice Buxton stops him.

Davies states that the weight to be attached to Evans's evidence depends on his credibility as an Expert Witness. He must be impartial and unbiased. If he is biased, Evans might not have gone out of his way to look for material which would support Mr Irving. He had abandoned the position of a neutral Expert Witness, and had become an advocate for his side, namely the Defendants.

Lord Justice Pill refers to Mr Irving's attacks on Evans's credibility, and uses the phrase, "absurd attacks."

Davies: "Yes, it was proof of his submission."

(Lord Justice Pill refers to points that Mr Davies has not covered. Dresden, the public meetings, etc. Adrian Davies says: "I feel confident that I have made my most important submissions on the permission application.)

Lord Justice Pill says: "You must present your case as a whole. What about your other applications?"


Adrian Davies now says: "I do not intend to move the application for the presentation of the Germar Rudolph Affidavit. I am in difficulty. Nobody has provided me with the key documents. If my Lords felt that there was merit to my application for permission to appeal, then it would be a matter for consideration that your Lordships would then allow me to apply to put in this evidence.

Lord Justice Pill says: "No. You must be plain. I asked whether you are pursuing your application in the Rudolph matter?"

Adrian Davies says: "No, I am not pursuing the Rudolph application."

The Court then retires to consider our application to introduce in evidence the Professor Evans book Lying about Hitler, and at 4.25pm makes the ruling on our application. Lord Justice Pill reads it out:

"The application is refused.

  1. The extreme lateness and the context of the seriousness of the application.
  2. In the skeleton argument there is an allegation in similar terms, at Paragraph 19: Mr Davies does not intend to pursue the application. It is customary to establish animus by analysis of the actual evidence.
  3. The emphasis of the Court is on Auschwitz, so fresh evidence is not relevant.

Lord Justice Pill asks Mr Davies to help by summarising the submissions he will make tomorrow.

Mr Davies, as briefly as he can: He will be making submissions on the shootings of the Jews in Riga. He hopes to finish before lunchtime. He will deal with Riga; Mr Irving's treatment of the entries in the Goebbels Diary, March 1942; Hitler's conference with Admiral Horthy; Dresden; and lastly the fate of the Rome Jews, and Irving's treatment of Ribbentrop's statement at Nuremberg.

Rampton: "Where does that leave me? Our time runs out at the end of tomorrow. Unless I am given more than half a day."

Lord Justice Pill says: "We are constituted until Tuesday."

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