Deborah Lipstadt Trial
interviewed with others by the BBC in 2002
But now on BBC Radio 4 Michael Cockerall tells the inside story of the notorious David Irving libel trial. You may ﬁnd some of the content offensive.
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 Irving was found to be a man who willfully denied the Holocaust of the Jews and who falsiﬁed historical documents.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.
All the major players who have spoken to us including the Trial Judge, Sir Charles Gray. It is the ﬁrst time in legal history a serving Judge has agreed to talk about a case that he has precided over, and it is a measure of new openess in the senior Judiciary.
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.
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?
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.
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?
This 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.
Who is behind this attempt to demolish your reputation?
The principle..... 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. And I could look up the slope and see this mud slide thundering down towards me and about to engulf me totally and wipe me out. And I decided the time had come to start hammering pegs into the landscape. So that answers your question on why did I do it.
So I mean you are saying now that........
As Deborah Lipstadt now knows, when people start using their Jewish networking to disadvantage David Irving, David Irving gets up and ﬁghts back.
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.
That issue in the case of David Irving vs. Deborah Lipstadt was some of the most unspeakable events of the 20th century. The genocide of the Jews in the 2nd 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’s libel writ was to bring into confrontation a vivid range of powerful personalities. Among them were a chain-smoking libel QC, a Cambridge history professor, Princess Diana’s divorce lawyer and the Managing Director of Penguin which had published Professor Lipstadt’s book.
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.
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?
No we didn’t.
No we didn’t.
That is extraordinary.
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.
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.
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.
I was contacted by Deborah Lipstadt and asked if I would act for her.
And what was your reaction?
Well I was pleased to be instructed by her, I had actually already read her book.
And were you paid by Deborah Lipstadt?
We did the case for nothing for a while, I think it was perhaps 2 years because it seemed to us to be right to do it pro bono....
And what about.....
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.
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 a 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.
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.
Penguin’s Managing Director, 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 do it whether the interests of one’s shareholders have been well served.
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.
I was ﬁrst notiﬁed that I would be needed for the case about 2 years before it began by Anthony Julius who 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 9 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.
Well you have learnt German......
Yes, that was part of my 9 months homework. Learnt enough to be able to read it. Yes, with help.....
And had you known any German before?
None at all apart from a few bits of the Magic Flute and that kind of thing.
Compared to the lawyers lined up against him Irving was determined to represent himself in Court as a so-called litigating 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.
As a 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 6 million pounds defending themselves. It would have cost me something of that order of magnitude to bring the action.....
Six million pounds.......you are saying?
Or six million dollars....
Well, there is a difference.
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 basis support around the world of two or three thousand people who will write out cheques varying from 5 dollars to ﬁve thousand, but I couldn’t have gone to them and said, “I now need half a million pounds”.
How much do you get from your supporters around the world, your broad base?
Over the last two years it has raised a quarter of a million pounds.
Mm, who are these people?
Ordinary people. There are no mirror images of Steven Spielberg though who put up most of the money for 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.
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.
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.
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.
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.
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, and I gave my opponents complete access to all my ﬁles. I said, “Take the lot and satisfy yourself what there is in them.”
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.
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.
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:-
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”.
I propose 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.
Why did you agree not to have a Jury in the trial
Its swings and roundabouts. The immediate disadvantage which did occur 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. And 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. Also he is considered to be. 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. And 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 Courts of History.
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.
Richard Rampton had agreed that the case would be heard by a Judge alone sitting without a Jury.
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.
The Judge chosen to hear the case was Sir Charles Gray, formerly himself one of the leading libel suits. He had been a Judge for 10 years but had only sat in the High Court since 1998. He could see advantages in dispensing with the Jury in the Irving case.
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 Author 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.
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?
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.
So were you surprised that they chose you to ....
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 set the Litigants weeks of expensive trial time.
And how good is your German?
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.
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 2 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.
It enables you to put on a nice optical display. I was very careful in the Courtroom to ensure that there was a 5 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 was the 40 on the other.
So what, David and Goliath?
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.
What is your attitude as a Judge to the Litigant in person?
It is a problem which confronts Judges day after day, and it undoubtedly does add to the Judge’s burden because he has got to absolutely make certain that the Litigant in person is not being disadvantaged by being a Litigant in person, which means that you have got to make sure that he understands what the law is and what problems the law may be presenting for his case.
The High Court now became the kind of very public stage that David Irving relished, but though there was huge reporting of the case it was not to Irving’s taste.
I would say that the Judge was in Auschwitz of the British Press. I complained on repeated occasions in the early stages of the trial about the vicious reporting of the case by the newspapers. And the Judge’s attitude was that it not affecting me, the Judge, therefore I am not going to do anything about it because if I say at the end of this trial David Irving was right, the world’s Press are going to say, “British Judge says Holocaust never happened.” I think that the Press have behaved quite frankly like SH1TS, they have behaved like shit throughout the reporting of this trial.
One of the things that struck me about this whole case obviously was this extraordinary huge media interest. I wonder what effect that had you on you as a Judge?
It is in a sense daunting, but if you ask the question, “Does it really make any difference to the Judge that various parts of the evidence have been misreported the answer is, I think “No”, because you were there when the evidence was given, you know what was said, it is just an added, if you like irritation that you have got to deal with these sort of problems, and the Litigants’ complaint that his case has been misrepresented perhaps at the beginning of every other day, but beyond that I don’t think it was a problem.
David Irving had spent a great deal of time preparing for his cross-examination of Deborah Lipstadt, and he was looking forward to her appearance in the Witness Box, but to his chagrin Professor Lipstadt and her Defence Team decided that she should not go into the box to give evidence.
It was an inevitable consequence of the broader litigation strategy which is to put Irving’s books on trial. Deborah’s book spoke for itself, it was all that she wanted to say and which she needed to say about Irving, and therefore for the purposes of the trial she had already given her evidence, the evidence sat in Court as the book.
Richard Rampton, QC.
The defensive words which were said to be true is an objective exercise, it is not a question of what she thought or believed when she wrote what she did, the question is whether what she wrote when she wrote it is true or not, and that is an entirely objective question, and for that purpose Deborah Lipstadt was not a necessary Witness.
So what was David Irving’s reaction when he learnt that Deborah Lipstadt was going to give evidence?
We knew it only at a relatively late date which was technically [bad] for me because we had to spend a great deal of effort, I and my friends in assembling a dossier for cross-examination of her. I don’t think that her Brooklyn accent would have endeared her to the Court. She kept literally silent for 3 months in that Courtroom.
First of all I am not from Brooklyn, it is not a Brooklyn accent and if that is the way that British lawyers decide then it is a very sad day, I don’t worry about the way I enunciate. If it is good enough for the BBC then I think it would have been good enough for the British Court. The fact of the matter is I wanted to go in the Witness Box, and a number of times in the Trial I said to Richard Rampton and Anthony Julius, if he is going to make a big fuss about the fact that I am not going into the Witness Box, and if you think that is going to harm our case, I am more than happy to go in, and I’m sorry I couldn’t go into the Witness Box because I think I would have had no problem facing him.
That was not how Irving saw it, he had worked up a detailed dossier on Deborah Lipstadt using the discovery process, and had planned to try and demonstrate that the fact that she was Jewish had caused her to write what she had about him.
I had obviously spent many months building up a dossier to a cross-examination, she is Jewish of course, she is Professor of Jewish Science at the University in Atlanta. I was going to get answers to the questions I needed her to answer, “What is the most important prayer that is intoned on Yom Kippur by a religious Jew like yourself?”
You obviously know a lot about the Jewish religion. Do you have .......
I know nothing at all about the Jewish religion, I know nothing at all, I ﬁnd them interesting people but also endlessly boring, they go on and on and on about themselves, and I have said that the reason they go on about the Holocaust is because it is the only interesting thing that has happened to them in 3,000 years, I am not interested in the Holocaust, I don’t know of anybody that is interested in the Holocaust except in a kind of clinical way.
Very early in the Trial I had emerged from the Courtroom and friends of mine had introduced me to a Professor who was standing on line from Newcastle, and they had made friends with him and when I came out for the lunchbreak my friend was sitting on a bench with him, and he was weeping and she called me over, and the last thing I want, this was maybe Day 3 of the trial was to become involved with someone else’s emotional upset, I really wanted to focus on the trial, but friend insisted that I come on over, so I went over and the man was very embarrassed, and he said “So much of my family was killed in the camps and this was so hard to hear and to listen to Irving, and I said “Don’t worry about it, I would love to stay and talk to you but I have really got to run,” and he said “I understand but can I ask you one question?” And I said “Of course”, and he said “My family came from Hamburg and my mother always used to talk about a Gustav Lipstadt whom she called Mr Handlebar, because he had a big handlebar moustache and he was very kind to the young children and the children and teacher remember him very well, is that any relationship to you?” Then I couldn’t talk, uh, Gustav Lipstadt was my Grandfather, and it is, uh, excuse me, uh, I never knew him, but you know who would have dreamt, excuse me, that suddenly into a British Courtroom my family would become paraded, you know and it was a powerful moment, and such a very powerful moment. So when you asked me why I fought for things like that .......
The strategy that Deborah Lipstadt’s Legal Team had developed for ﬁghting the case in Court was to show that Irving falsiﬁed history in order to depict Hitler and the Nazis in a favourable light, and to deny that the Holocaust of 6 million Jews had ever taken place. They also wanted to show Irving had the political motivation for doing so. A key Expert Witness was Richard Evans, the Professor of Modern History at Cambridge and a German specialist. The Lipstadt team had commissioned Evans to go line by line through all Irving’s books of Nazi history and check his sources and translations of documents.
I really and genuinely had no idea of what I would ﬁnd before I started off, I was not familiar with them at all and, uh, I was quite surprised and shocked to discover that they did have an very large number of these falsifications. In my report I said they could only really be deliberate if you was just a very careless historian, then your mistakes were all over the place. If all your mistakes tend to support the same theory in the same idea and the same argument then that is a very strong evidence that they are in fact deliberate. I had two Research Assistants who were two PhD students who were all working part-time, and it took us 18 months to through Irving’s work through his books, his articles, his speeches, and we selected a number of incidences but they weren’t little tiny slips, for example we looked at the so-called Reich Kristallnacht, the Night of Broken Glass. Now, in one of Irving’s books on Goebbels this is treated in 11 pages, and what I did was I followed everything in those 11 pages back through his footnotes to the sources, not that it was an easy thing to do, and discovered a whole mass of falsifications that took 80 pages of my report to deal with. We found that on a number of occasions he said they showed that Hitler was to quote Irving, “Probably the best friend Jews ever had in the Third Reich”.
Professor Richard Evans presented his report in Court and was cross-examined by David Irving.
Professor Evans who was the Architect of their defence, the Chief Witness, I took an instant dislike to him because he took an instant dislike to me. This scolding little Welshman who stood permanently with his hands thrust deep in his pockets in the Witness Box, and sometimes he even turned his back on me when I was addressing him and asking him questions, I was baffled by the fact that Judge took so much notice of this man who clearly had an ignorance of a subject that was not commensurate with his position at Cambridge, he didn’t know the German language properly and he obviously thoroughly loathed me. I don’t mind people loathing me, I am sure that the world is full of people that don’t like David Irving, even more so since the trial, but you are not allowed to do that if you are an Expert Witness.
Scowling is a frown of concentration which I really didn’t have and still don’t have any personal animosity towards Mr Irving at all, he hasn’t done me any harm and the ﬁrst couple of hours I was in the Witness Box I did ﬁnd it becoming a bit personal, and it was vital not to let that happen and you have to do you testimony in a very calm and objective way. So after that, as indeed one is supposed to, I addressed my remarks to the Judge, and I didn’t look at Irving once within the subsequent 5 days, and I found that much easier.
I was extremely hurt by his report which had a total lack of objectivity. It is so unacademic that it is mind-boggling and if I had one enemy from now on it would be Professor Evans.
Irving took me through from the beginning to the end of my 740 page report trying to question the points that I had made, and that’s ﬁne, that’s something that is easy to handle but time and again in fact I found that that when I looked up in my own report what Irving was alleging I had said in it I found that he had left bits out, or his was quoting partially or he was claiming that I was saying something that I didn’t say.
When Richard Rampton cross-examined David Irving about his Nazi histories the QC was able to make use of his newly acquired knowledge of German.
In Court when one is discussing the original document, and Mr Irving is proposing that what I know to be a fallacious translation, I have to be prepared for that so I have to know what the various possible shades of meaning of the particular word might be.
It was a source of some wonderfully theatrical moment, ....
Yes it was........
which Richard Rampton was careful to provide from time to time for the entertainment of the Court, that he would take a document and translate it seemingly off the cuff and then turn around and say that I am having a good day today, um, I think your accent could do with a bit of brushing up........
Well I know that..........
The Defence Team assembled ﬁve Expert Witnesses who between them systematically demolished David Irving’s historical works, as well as countering Irving’s suggestion that Hitler did not know about the killing of the Jews. Irving called four witness apart from himself, but two of them he had to sub-poena or force to appear. They were both historians who had in the past written favourable reviews of his books. One of Irving’s sub-poened Witnesses was Donald Cameron Watt, a meritorious Professor of international history at the London School of Economics.
I didn’t feel that I could rightly appear as a character witness because I didn’t think my evidence would be much use to him frankly, so he eventually sub-poened me on the grounds that my reviews had always treated his work seriously, though I disagreed with him. There is nothing so likely to convince a generation of youngsters as that their superiors are wrong as they ﬁnd all their superiors playing the same tune. My view of Irving was that he was a man who you had to take seriously, even if you thought he was quite clearly twisting and reading evidence to the benefit of his own cause. At some stage of his life for whatever private psychological Freudian reason, Irving decided that Hitler was his hero, and that meant that Hitler couldn’t have done the things that he was alleged to have done, but we need somebody on Hitler’s side, if only to show how bad the case is.
The second prong of the Defence Team’s strategy was to uncover Irving’s political motivation for distorting history. Through the discovery process of Irving’s private tapes and videos Richard Rampton was able to show how Irving regularly addressed Neo-Nazi meetings, and ridicule the Jews and the Holocaust. A key moment in the trial came when Rampton produced a poem that he had discovered in Irving’s private diaries.
Like the little ditty which he wrote for his young child, is that kind of what one might call private or suitable material which does rather suggest a motive for his adulation of Hitler.
Oh they found a poem, I was walking with my 9 month old child in the park in Grosvenor Square here, and a half-caste child wheeled past which I ﬁnd is a great tragedy to inﬂict on civilisation......
What the creation of half-caste children?
The creation of half-caste children.
Why is that?
Oh, let’s stick to one subject at a time please.
And you are the one that said it.......
You asked for the poem, here is the poem...... Straight off the top of my head as a kind of Edward Lear or Hilaire Belloch I recited to my child this poem:-
“I am a baby Aryan,/ not Jewish or Sectarian
I have no plans to marry an/ Ape or Rastafarian.”
And it turned out so neatly that I thought this deserved to be preserved for posterity, so it went in my private diary for posterity. The entire British press leapt on the poem and used this as proof that I am a viscious racist of nastiest sort, personally responsible for the murder of Stephen Lawrence and God knows who else, but that is the way the British Press works, God bless them.
If you can show a motive for a persistent course of conduct which is to say the very least odd, or at any rate a relationship between ideology and falsification, the falsification becomes much more convincingly described as a deliberate and systematic process. And that why it was so helpful, we didn’t set out to prove that he was an Anti-Semite, it is probably a good thing that the world now knows that he is.
As the case went on over 2 months with the tirelessly prolixed David Irving on his feet for many hours in a day, he began to sense that he was not getting through to the Judge, Sir Charles Gray. Irving had sought in cross-examination to demolish the Defence’s Chief Expert Witness on what had happened at Auschwitz by use if detailed statistics. But Irving felt that Mr Justice Gray was failing to grasp the significance of his points about Auschwitz.
I don’t say these murders never happened, I just said they didn’t happen on the scale the other side claimed. And I am just sorry I didn’t use a mallet of sufficient calibre to bring it into the thick skull of the Judge.
I think that if you are confronted with statistical evidence of that weight and impressiveness the Judge, if he had been awake, would have said to himself, “There are surely grounds for scepticism here without being called a Holocaust denier” which is what it boils down to.
If he had been awake – are you suggesting that the Judge was not awake to join the trial?
I am not saying he fell asleep, but there were occasions when I could see that he was not getting the point that was extracting from the Witness.
What about the strain there was for you as the Judge with this trial?
I think it is a physical strain, but then as an Advocate of the Bar one had got used to it because time and again you have long cases. You really have got to keep all your faculties about you, but to some extent you are used to it, I mean it is part of your training, undoubtedly it is a new experience for Mr Irving. But one of the, as it is mitigating factors in this particular trial was that the subject matter was so absorbing.
Mr Irving manifestly is an extremely intelligent and well-read, and was very good on his feet, and one would say that Mr Irving handled his case with great skill and ability, and I think everyone was impressed at the way he represented himself. It is a very difﬁcult thing to do in any context, not least the context of the Irving case.
And what did Richard Rampton make of Irving as an adversary?
Certainly he was very courteous to me, never offensive and always acknowledged me and so and so forth. As an opponent I will be quite frank, I was surprised how unimpressive he was as an advocate. He didn’t seem to me to have grasped the strength of the case against him.
In the second week of the trial Richard Rampton asked him, “Mr Irving, have you ever checked these documents at the Auschwitz archives?”, and he said “No, I am banned from going to Auschwitz.” It is like the casinos in Las Vegas, they don’t let the big winners in. I think for him it was gag, and if it was it was a pretty horrendous gag to play.
I have always been taught that whatever the outcome of the game is, it is how you play the game that matters. On the last day, on April 11th last year I came into the Courtroom knowing the result of the trial, and I went over to Richard Rampton who was preening himself in the front row of this packed-up Courtroom, and I put my hand out to him and I said, “Mr Rampton?” and he said “Yes?”, and I said “Well Done”. And he turned his back on me. And that really hurt. And I thought I have not been dealing with ordinary English people here, these are people who are operating in the pay of a foreign power.
Well I don’t remember turning my back on him and I don’t remember shaking hands with him, but then I don’t normally shake hands with my opponents. It is not that kind of false “Let’s all play cricket together” attitude towards litigation. Litigation, particularly in a case like this, is a substitute for war.
Rampton unfortunately became emotionally involved in a way that he shouldn’t have allowed himself to.
I became emotionally involved which is certainly true, there is no question about that, in a way that he shouldn’t have allowed himself to is bunk. This doesn’t mean that it affects the way you conduct a case.
At the end of the 8 week trial Mr Justice Gray took a further month to deliver his verdict. In a lengthy written judgement he found in favour of Deborah Lipstadt, a produced a devastating condemnation of David Irving. Mr Justice Gray said:-
“Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence that Irving has portrayed Hitler in an unwarranted favourable light, especially in relation to his treatment of the Jews. And that Irving is an active Holocaust denier, associates with Neo-Nazis and is an Anti-Semite and a racist.
In the event Mr Justice Gray had gone significantly further than Deborah Lipstadt in her book, and his ﬁndings were widely held as a landmark judgement. Once again, David Irving sees it differently.
I think in my obiturate were wrote less than two lines, if I can be so bold, I think it is one of those rocks you stumble over through life, I am indestructible I think.......
As had happened throughout the case David Irving’s interpretation of events was diametrically opposed to Deborah Lipstadt’s. This was her reaction to the Judgement by Sir Justice Gray in the case that had become the trial of David Irving:-
I hadn’t expected such a sweeping judgement, I was really profoundly overjoyed when I read what he had to say, but a lot of that joy was tempered by a sense that this never should have been. And more than that, that a man who spreads such hatred and lies and is such a distorter of history had gotten his come-uppance was overwhelming to me.
It is lucky the Twin Towers hadn’t been shot down by then, otherwise I would have been blamed about that as well in Justice Gray’s judgement. The Judgement was so over the top it totally misses effect. I think Judge Gray needs lessons in how to write really wicked prose.
The Irving Trial was written and presented by Michael Cockerall, and it was produced by Charlie Potter and Bruce Heiman, and was an Above The Title production for BBC Radio 4.