Irving v. Lipstadt

 1IN THE HIGH COURT OF JUSTICE
1996 I. No. 113
QUEEN'S BENCH DIVISION
 2Royal Courts of Justice
 3Strand, London
 4Wednesday, 12th January 2000
 5
 6Before:
 7MR JUSTICE GRAY
 8
 9B E T W E E N: DAVID JOHN CAWDELL IRVING
10Claimant -and-
11(1) PENGUIN BOOKS LIMITED
12(2) DEBORAH E. LIPSTADT
13Defendants
14The Claimant appeared in person
15MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons and Mishcon de Reya) appeared on behalf of the First and
16Second Defendants
17MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on behalf of the First Defendant Penguin Books Limited
18MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
19the Second Defendant Deborah Lipstadt
20
21(Transcribed from the stenographic notes of Harry Counsell & Company,
Clifford's Inn, Fetter Lane, London EC4
22Telephone: 020-7242-9346)
23PROCEEDINGS - DAY TWO
24
25
26

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 1 DAY 2 Wednesday, 12th January 2000
 2MR JUSTICE GRAY:     Yes, Mr Irving
 3MR IRVING:     May it please your Lordship. This morning I wish
 4to kick off by playing to the court excerpts from two, or
 5possibly three, video tapes which are of relevance. I
 6will explain what the video tapes are, if I may, my Lord.
 7The first one is one minute 20 seconds long. It is a
 8postwar German newsreel, January 1948, and the very first
 9section on it, fortunately, is the reporting of the end of
10the Auschwitz trial where a number of Defendants, rather
11as at Nuremberg, had been prosecuted on this occasion by
12the Polish Government. Auschwitz is in Poland. They had
13been prosecuted for crimes against humanity, and sentence
14was passed a week or two before this trial, before this
15newsreel was shown.
16    So it is a newsreel showing the judge handing
17down sentence. The relevance is purely the newsreel
18statement from the judge's findings of how many people
19died in Auschwitz which is a matter of contention. We are
20told by the expert witnesses in this case that anybody who
21says the figure is less than is now commonly assumed is a
22"Holocaust denier". I purely wish to show that there is
23a broad band of opinion over the years as to what the
24figures were
25MR JUSTICE GRAY:     The judge is expressing whatever view he does
26express on the basis of, what, the evidence he had heard

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 1during the course of the trial or what?
 2MR IRVING:     A very lengthy trial, which ended with the
 3execution of a number of people. We see on this short
 4film the hearing of evidence, the hearing of witness
 5statements, the taking of depositions, the forensic
 6examination of the site which makes the statement that he
 7utters all the more important. My Lord, do you have the
 8short transcript of the passage? I have it in German
 9MR JUSTICE GRAY:     If I have, I do not think I know where it
10is. I have not seen it
11MR IRVING:     I can provide one, my Lord
12MR JUSTICE GRAY:     Or has it been handed in? Is it somewhere in
13the files because there are a few loose documents
14MR IRVING:     There is one. If I can kick off by showing that
15excerpt
16MR IRVING:     It is a tracking error, I think, my Lord
17MR JUSTICE GRAY:     You are having a quite a task if you are
18trying to cope with that as well as everything else. I do
19not know if there is anyone else around who is more
20conversant with it than you are? We are getting a sound
21now. Shall we come back to that one? It may be we do not
22get the same problem with your next one
23MR IRVING:     Let me just read out what the translation is, if
24I may
25MR JUSTICE GRAY:     Yes, please do
26MR IRVING:     This is a translation of the German text:

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 1 "In Cracow the trial of the principal culprits
 2for the Auschwitz concentration camp came to an end before
 3a Polish court. The Defendants were German camp guards or
 4members of the German camp administration staff.
 5Unheard-of atrocities against the camp inmates,
 6particularly against female prisoners, were proved against
 7them. Altogether nearly 300,000 people" -- this is the
 8part I am relying upon, my Lord -- "from the most
 9different nations died in the Auschwitz concentration
10camp. The court sentenced 23 of the accused to death, six
11to life sentences and 10 to lengthy jail terms; one was
12acquitted".
13    It then continues with the same statement: "The
14Auschwitz concentration camp remains as it stands today,
15as a monument of shame to the lasting memory of its
16300,000 victims". Of course, nowadays, my Lord, we are
17told a very different picture of Auschwitz, but that was
18within the immediacy of the event
19MR JUSTICE GRAY:     I appreciate that no one is being too fussed,
20I understand why not, about the admissibility of the
21evidence, but this reads to me not like the judge or the
22court talking but some sort of newsreel
23MR IRVING:     It is a German official newsreel produced in early
241948 at the time that Germany was under allied occupation
25and all the media outlets in Germany were licensed by the
26allied authorities

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 1MR JUSTICE GRAY:     Yes, but, I mean, in terms of evidence, I am
 2not sure this has terribly much weight, does it
 3MR IRVING:     Except, my Lord, for two arguments here: firstly,
 4if the allegation is that anybody who states figure less
 5than one million or 4 million, whichever figure we look
 6at, for Auschwitz is a Holocaust denier, then, denial,
 7apparently started very early; and, secondly, if this was
 8one of the documents before me at the time I wrote my
 9book, my Lord, then I could hardly be accused of
10manipulation or distortion if I choose to rely on this
11document rather than on the evidence of someone like
12Rudolf Hess
13MR JUSTICE GRAY:     Where am I going to put it because I think we
14must have a system of finding a home for every document
15that is handed in, if you are going to rely on it
16MR IRVING:     My Lord, that should be in the bundles of
17transcripts, in my submission
18MR JUSTICE GRAY:     Perhaps the Defendants can help because let
19us be sensible about putting them were they belong
20 MR RAMPTON:     Yes. I suspect what is going to happen during the
21course of this trial is that we are going to create new
22files as we go along. The resources of Her Majesty's
23courts probably do not run to that. So I think what we
24had better do is, as these documents build up, is put them
25in files -- this is a document I have never seen before
26either -- and try to provide an identical file for each

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 1person in the court who will need to look at it
 2MR JUSTICE GRAY:     Yes. I do not want to spend undue time on
 3it, but in some ways it is better to try to find them a
 4spot in the existing bundles where they logically belong
 5rather than having a, sort of, rather random new file
 6created with whatever happens to turn up
 7 MR RAMPTON:     Yes, that is probably right. The only place I can
 8think of to put this at the moment is with Mr Irving's
 9statement
10MR JUSTICE GRAY:     Yes, I think that may be right
11MR IRVING:     In my statement
12 MR RAMPTON:     It has no other natural home that I can think of
13MR JUSTICE GRAY:     Yes, I think that may be right
14MR IRVING:     Now, I add to your Lordship's misery by giving you
15the transcript of the video which we will now show
16MR JUSTICE GRAY:     Yes. For the time being, at any rate, we
17shall put this in C4, shall we? Is that what you mean,
18Mr Rampton
19 MR RAMPTON:     Yes, I think it is C4. Unfortunately, mine do not
20any longer correspond to the numbers -- nor does
21Miss Rogers'
22MR JUSTICE GRAY:     The other thing is we need a hole puncher
23 MR RAMPTON:     Tab 1, C4, my Lord
24MR JUSTICE GRAY:     Yes, that is what I thought, at the back
25 MR RAMPTON:     This next one, what is the number of the
26transcript file? The next one goes in D(ii). I do not

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