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"The Irving Trial"
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... but now on BBC Radio 4 Michael Cockerell tells the inside story of the notorious David Irving libel trial. You may find some of the content offensive.
Michael Cockerell: Last week time ran out for the controversial historian of the Nazis, David Irving to appeal against the verdict in the libel trial which he lost last year. Irving was found to be a man who wilfully denied the Holocaust of the Jews and who falsified historical documents. It is more than five years since Irving first issued his libel writ, and the inside story of how the case was fought could not be told until now.
Sir Charles Gray: I have had my share, I think of quite large libel actions, none quite so substantial I think as the Irving trial, a unique case and one can't imagine that there will be many other cases whether in the guise of a libel action or of anything else which will raise the same sort of often horrifying issues as that case did.
Michael Cockerell: Also giving their sides of the story are David Irving who brought the libel action, and the Chief Defendant of the case, Deborah Lipstadt. She is an American professor and wrote the book, "Denying the Holocaust" which caused Irving to sue. In the libel trial itself Deborah Lipstadt chose to remain silent and not give evidence in her defence in Court.
Did you have any idea when you wrote the book that you would come into conflict with David Irving?
Deborah Lipstadt: Not for a moment. I felt that what I wrote about him, well it was harsh, it was strong, it was quite direct, it was nowhere near as harsh and as condemnatory as what others have written. Other people had written far worse about him, so I thought I was describing a situation which he acknowledged, that he was a Holocaust denier, that he was dangerous because he had a reputation outside his Holocaust denial that he had bent the truth.
Michael Cockerell: David Irving, who defended himself in Court without recourse to lawyers had long been a highly controversial historian of the Third Reich. He prided himself on his ability to unearth original Nazi documents that conventional historians could not reach. But over the years he had come under increasingly heavy attack as his books were accused of white-washing Hitler and claiming that the Fuhrer neither authorised, nor knew about the Holocaust. Irving claims that Deborah Lipstadt's book was the climax of a concerted campaign to destroy his reputation as a historian.
So why did you decide to sue for libel in the first place?
David Irving: There had been a dedicated 10- or 20-year attempt to demolish my reputation behind the scenes, and it was time now for me to fight back. [ ] I am an independent person, I am a very independent historian, I have never studied history, I am a loose canon.
Michael Cockerell: Who is behind this attempt to demolish your reputation?
David Irving: The principal international Jewish bodies: I mean, this is a plain statement of fact. I called this particular operation against me The Global Endeavour, and Lipstadt is part of an international conspiracy to silence me and to destroy my career. [ ]
I could look up the slope and see this mudslide thundering down towards me and about to engulf me totally, and wipe me out. I decided the time had come to start hammering pegs into the landscape. So that answers your question on why did I do it --
Michael Cockerell: So I mean you are saying now that --
David Irving: -- as Deborah Lipstadt now knows: When people start using their Jewish networking to disadvantage David Irving, David Irving gets up and fights back.
Deborah Lipstadt: Yes, I am part of this international Jewish conspiracy, anybody who knows anything about the Jewish community know they can agree on anything, much less get a conspiracy organised, but I am not part of any conspiracy, I wasn't told what to write, I wrote this book on my own, I am a scholar, I researched it and David Irving is not so important as to my book that I would spend 20 years trying to silence him. He is trying to turn himself into the victim, and I would like to remind him maybe he has forgotten that I was the Defendant here, I didn't go and seek out this case, and he chose to mount this battle, we wouldn't be sitting here talking about his lies and his distortions if he hadn't come and sued me.
Michael Cockerell: At issue in the case of David Irving vs. Deborah Lipstadt were some of the most unspeakable events of the 20th century -- the genocide of the Jews in the Second World War and the activities of Adolf Hitler. But as the Judge, Sir Charles Gray, said, "It was not a trial about the Holocaust, rather, it was a trial about history, how it is written and what we the public can believe about our past." And the inside story of the whole case is not one of unrelieved gloom, it is also a modern morality tale that veers between moments of high drama and black comedy.
David Irving: Penguin Books I feel endlessly sorry for. They have published my books in the past, they are a good publisher, they are a publisher of the very highest reputation. I don't think they realised what they were letting themselves in for when they published this book by Deborah Lipstadt.
[ ] They were very foolish in one respect. To my knowledge they never had the book read for libel. No British lawyer would have passed the book in the way it was published.
Michael Cockerell: The Managing Director of Penguin Books is Anthony Forbes-Watson who stood to lose his job and the Company's world-wide reputation if he lost to David Irving. Penguin's chief Legal Advisor is Helena Peacock.
Did you have Deborah Lipstadt's book read for libel?
Anthony Forbes-Watson: No we didn't.
Michael Cockerell: "No we didn't" -- that is extraordinary.
Anthony Forbes-Watson: Obviously with hindsight we don't know whether or not we would have made any changes in this book if we had had it read for libel. The book was published first of all in the US, so it didn't fall within our normal systems for reading books for libel.
We don't read all books for libel. I think in retrospect, given what has happened since, it might seem a little casual that we didn't read that book for libel. But had we read it for libel I am not sure that we would have changed a word.
Deborah Lipstadt: I don't think he assumed I would fight it. I think he thought I was a woman, I was from the United States, I was far away, I would run with my tail between my legs, and I never considered that. I was asked by a lot of people, "Deborah, when did you decide to fight this?" And then I realised I never decided to fight this, I just knew I couldn't not fight it. I couldn't not fight it and look my colleagues in the face, I couldn't not fight it and look, you know, friends in the face; and I couldn't not fight it and look survivors of the Holocaust and children of survivors in the face, to have not fought it would have been a defeat for all those people and all those people and all those important things.
Michael Cockerell: So the lengthy preparations for the case began. Penguin had their own in-house lawyers, and would use the services of an outside firm of solicitors and a leading libel QC to defend themselves and Deborah Lipstadt in Court. Lipstadt decided that she should have her own independent Legal Advisor, and turn to the solicitor, Anthony Julius, who had successfully handled Princess Diana's divorce.
Anthony Julius: I was contacted by Deborah Lipstadt and asked if I would act for her.
Michael Cockerell: And what was your reaction?
Anthony Julius: Well I was pleased to be instructed by her, I had actually already read her book.
Michael Cockerell: And were you paid by Deborah Lipstadt?
Anthony Julius: We did the case for nothing for a while, I think it was perhaps two years because it seemed to us to be right to do it pro bono --
Michael Cockerell: And what about --
Anthony Julius: -- which we do, I mean the firm Mishcon De Reya does, a lot of pro bono work, and this was a case that cried out for that kind of representation.
Michael Cockerell: The Defence Lawyers began preparing for the case by commissioning a number of experts in Nazi history to go through all of Irving's books. But both Deborah Lipstadt and Penguin Books at first doubted that the case would ever come to Court. With the great majority of libel writs the case is settled or the writ is never followed up. And Irving did in fact make two offers to withdraw his Writ in exchange for a full apology from Penguin and Deborah Lipstadt for calling him a Holocaust denier and a falsifier of history.
David Irving: Twice before the trial began I had offered to settle out of Court -- if my opponents would make a private payment of 500 pounds to a charity for the limbless, I will end the action. It would have been over as quick as that.
Michael Cockerell: Penguin's Managing Director, Anthony Forbes-Watson:-
Anthony Forbes-Watson: When we received two invitations to withdraw from Irving, those were the moments when I in particular crystallised my thinking at different stages during the proceedings. The first reaction is that a publisher stands by their own author, and by the contents of the book that that author has been commissioned to publish. One's second reaction is to debate whether the interests of one's shareholders have been well served.
Michael Cockerell: Anthony Forbes-Watson became convinced by the volume of evidence from the experts which the Defence Team was building up against Irving. He and Deborah Lipstadt determined not to apologise to Irving, and to prove in Court the truth of what she had written. They had retained one of the top libel advocates -- Richard Rampton, QC :-
Richard Rampton: I was first notified that I would be needed for the case about two years before it began by Anthony Julius whom I have known for a very long time, and then about a year before it started I was sent a whole bunch of papers including about 3 feet of experts' reports. I then took nine months doing nothing else but prepare for the trial which included learning a basic method of reading Nazi German, because I had to make sure that I was up to speed because I knew that Mr Irving knew the documents as well as having very good German, which I didn't have, so it was a lot of hard work. Preparation is the key to all litigation.
Michael Cockerell: Well you have learnt German --
Richard Rampton: Yes, that was part of my nine months homework. Learnt enough to be able to read it. Yes, with help --
Michael Cockerell: And had you known any German before?
Richard Rampton: None at all apart from a few bits of the Magic Flute and that kind of thing.
Michael Cockerell: Compared to the lawyers lined up against him Irving was determined to represent himself in Court as a so-called litigant in person. But he had a wide range of far right-wing sympathisers across the world with which he kept in constant contact through email and the Internet. They could help him prepare for the case and produce documents for him.
David Irving: As an historian fighting a libel action, you are confronted with two alternatives: You can have the case fought by a historian who is a bad lawyer, or by a lawyer who is a bad historian. And I chose the former. Well, of course, you know the old saying that "somebody who acts for himself has a fool for a Client". I was well aware of that. The obvious advantages, of course, are that the Defendants in this action have spent six million pounds defending themselves. It would have cost me something of that order of magnitude to bring the action.....
Michael Cockerell: Six million pounds. Is that what you are saying?
David Irving: Yes.... Or six million dollars....
Michael Cockerell: Well, there is a difference.
David Irving: Or two million pounds or whatever the total was. There is effectively no difference. I would have had to spend certainly half a million pounds if I had used Counsel. I don't have that kind of support financially. I have a broad-based support around the world of two or three thousand people who will write out cheques varying from five dollars to five thousand, but I couldn't have gone to them and said, "I now need half a million pounds".
Michael Cockerell: How much did you get from your supporters around the world, your broad base?
David Irving: Over the last two years it has raised a quarter of a million pounds.
David Irving: Ordinary people. There are no mirror images of Steven Spielberg though, who put up most of the money for Deborah Lipstadt.
Deborah Lipstadt: That is total fiction. I don't know Mr Spielberg, I have never met him. But he did make a contribution, but I think there are a whole lot of extra zeros there in terms of his contribution.
Michael Cockerell: The Defence Lawyers decided on a twin pronged strategy to counter David Irving. They had commissioned five experts on Hitler and the Nazis to try and find evidence that Irving was a falsifier of history. The second prong of the attack was the so-called discovery process, the system which enables each side in a libel trial to get the other to provide it with documents and material which may be relevant to the case. Both Anthony Julius and David Irving were to make full use of the discovery process. Julius used it to gain access to David Irving's extensive private archives.
Anthony Julius: I did that because it seemed to me to be clear that Irving's books were merely a small aspect of his outlet, and that one might get a better and clearer sense of the trajectory of his career by reading his private diaries, by reading his speeches, and by watching his audio tapes and so on we had a hearing. Irving resisted the application for disclosure and in the end the Master, the Judge who heard it decided in our favour and we obtained a mass of documentation. I mean, as the general rule in litigation that whether you find yourself a Defendant or a Claimant you run the case as if you were a claimant, so it was the right thing to do to go on the attack. And that's how the Irving work became the central focus of the trial. We were over supplied with reference and material and it was a walk in the park really.
Michael Cockerell: Anthony Julius was co-ordinating his pre-trial strategy with Richard Rampton, the QC who would represent Penguin and Deborah Lipstadt in the Libel Court.
Richard Rampton: Mr Irving writes, I think very well. I have read all his history books if you can call them that, with a racy kind of narrative style, it is sometimes like reading a good thriller. The trouble is with it is that so far as Hitler and the Jews is concerned they are a trap for themselves because they are simply not true. It always seemed to me that Irving's great weakness was the extent to which he had -- and it must have been deliberate -- distorted, skewed, mistranslated and misrepresented the historical sources.
David Irving: Under the rules of Discovery, which is the best part of an English High Court action, in theory you can oblige your opponent to come clean with everything in his or her files, and I "played the white man," if I can put it like that without being dismissed as a racist yet again. I gave my opponents complete access to all my files. I said, "Take the lot and satisfy yourself what there is in them."
Anthony Julius: You will find that we had spent quite a long time in Court in a pre-trial hearing getting those diaries. He fought us tooth and nail on giving up those diaries, so you know, another rewrite of history perhaps.
Richard Rampton: Through the process of discovery we got first and most importantly a large chunk of his personal diaries, all ordered by the Court, which were from our point of view and eventually from the point of view to Court a goldmine. Because what they showed was first that he was an enthusiastic participator in events organised by Neo-Nazis and Right-Wing Extremists. The second which did surprise us perhaps a little more that according to what he had written he was profoundly Anti-Semitic, which does rather suggest a motive for his adulation of Hitler.
Michael Cockerell: At last, three years after Irving had written his first threatening letter to Penguin, and two years after he had issued his libel writ the case came to Court. It was billed as the Trial of the Century, and unlike a normal libel trial which is heard by a jury both sides had agreed in pre-trial hearings that the case would be heard by a Judge alone, sitting without a jury. But even on this matter, where there was agreement between the two sides, as with so much of the case, there is a dispute between them as to exactly how it happened. First, Anthony Julius's version:-
Anthony Julius: In one of the early pre-trial hearings in front of the Master, when the question of mode of trial came up, whether it would be by Judge alone or with a Jury I said to the Master that we thought this on balance it would be better if the case was tried by a Judge alone because of its complexity, and Irving I think, charmed by the thought that he was involved in a case of complexity, immediately said, "Yes, yes, I agree".
David Irving: I proposed that there should be a Judge alone and the Defendants accepted it readily, much to our surprise. We thought that the Defendants would ask for a trial by jury.
Michael Cockerell: Why did you agree not to have a Jury in the trial?
David Irving: It is swings and roundabouts. The immediate disadvantage, which did accrue, was one which I must admit I was not aware of -- that if you have just a Judge trying a case there is a danger, at the end of the case, that the Judge will say what he thinks about you. This is purely my own ignorance, I hadn't realised that the Judge would have an opportunity to say all the things that he thought in his judgement.
The advantage of having just a Judge was that it would shorten the case because you wouldn't have to explain everything again and again to members of the Jury. A Judge is considered to be somewhat brighter than a Jury.
The disadvantages of having a Jury in my view would be that the Defendants would have filled the witness box with Holocaust survivors wearing their "pyjama suits" and plucking at the heartstrings of the Jury. I would have been made personally responsible for every baby that had been tossed into the flames, and that is the way they would have played it. It wouldn't have been very helpful to the Court of History.
Anthony Julius: Since it was Irving's own awful books that became the subject of enquiry at the trial, calling witnesses of fact to events in the Holocaust was a completely unnecessary exercise. What's more, the last thing that I or anyone else in the Defence Team would have wanted would have been to have subjected people in their 70s and 80s to the invasive and bullying questions of a hectoring Anti-Semite.
Michael Cockerell: Richard Rampton had agreed that the case would be heard by a Judge alone sitting without a Jury.
Richard Rampton: It would have been more uncertain for two reasons, first because of the factual complexity of the issues. It involved issues of translation and an understanding of history, with a precise historical background of documents, but also because with twelve people in a Jury you never know how many of them might sympathise with Irving's political ideology. You can't tell, and in England we can't question them about that. So there would have been a greater element of uncertainty. There is no question about that.
Michael Cockerell: The Judge chosen to hear the case was Sir Charles Gray, formerly himself one of the leading libel Silks. He had been a Judge for ten years but had only sat in the High Court since 1998. He could see advantages in dispensing with the Jury in the Irving case.
Sir Charles Gray: I don't want to sound as if I am being condescending but for twelve amateurs to come in and to wrestle with the huge number of documents, to focus throughout on the points that they were ultimately going to be asked to decide, and they were very numerous, it wasn't a "Do you find for the Plaintiff or for the Defendant", it was much more complicated than that, and I think that it really would have beyond the powers of any twelve men or women, and that is not to decry the Jury system, but there are advantages in having a Judge decide cases, the particular advantage I suppose in this case might be said to be that at the end of the day you get a reasoned judgement, which you don't with a Jury. Juries don't give reasons for their decision.
Michael Cockerell: And in terms of a Judge who might have heard this trial were you the most junior of the three who might have heard this trial?
Sir Charles Gray: That's right, there are three Judges who do a lot of this kind of work, and I was at that time, and still am, the most junior of the three. Your unasked question is why was I chosen, the answer to which is I just don't know.
Michael Cockerell: So were you surprised that they chose you to --
Sir Charles Gray: -- Not particularly, not when I was asked I wasn't, because I don't think then I realised that it would be quite as massive and significant a trial as it ultimately turned out to be. I think I had about six weeks solid reading with the background material, and I think that will probably have saved the Litigants weeks of expensive trial time.
Michael Cockerell: And how good is your German?
Sir Charles Gray: I don't think that was any reason why I was asked to do the case, it is probably good "O"-level/ "A"-level kind of German, far inferior to David Irving's German which is absolutely fluent. But in knowing German it did help a great deal because a lot of the documents as you well know were in German, not all of them translated. And it also helped I think to have a little of the feeling for some of the important words, and how they might be translated not in a dictionary sense but in terms of a feel for the thing.
Michael Cockerell: The case opened in a packed Court 37, the largest in the High Court in London. David Irving's opening speech on his own behalf lasted more than two hours. He accused the Defendants of being part of an organised international endeavour to destroy him by spreading waves of hatred, and being responsible for publishers dropping his books. After a somewhat shorter opening speech by Richard Rampton Irving called his first Witness. Himself. He was playing up his status as the Litigant in person.
David Irving: [ ] It enables you to put on a nice optical display. I was very careful in the Courtroom to ensure that there was a five-foot clear space all the way round me, and when my friends who came into the Courtroom shovelled their chairs up close behind me, so they could whisper, I made it pretty plain to them that I wanted then to pull back. I wanted the public and the Press to see that there was me on the one side, and that there were the forty on the other.
Michael Cockerell: So what, David and Goliath?
David Irving: Yes, David and Goliath; and, as I said, David doesn't always win . (I chose a sentence which I have to admit that I had prepared some weeks ahead.)
Copyright in this transcript is vested in David Irving and Focal Point Publications