Irving v. Lipstadt

 1MR JUSTICE GRAY:    Yes. I am not going to compel you to carry
 2on if you have run out of questions.
 3MR IRVING:    I have questions prepared here but not in a form
 4that would be useful to the court.
 5MR JUSTICE GRAY:    Yes. I think I have probably removed a
 6couple of hours by saying that you should deal with bundle
 7E later.
 8MR IRVING:    By way of submission.
 9MR JUSTICE GRAY:    I would not say I have removed. I have
10postponed the two hours it will probably take. So I am
11not critical by of you for having run out, but you have
12run out. There is nothing you want to deal with now?
13I cannot immediately think of anything. Mr Rampton, can
14you?
15MR RAMPTON:    I cannot. I think it would be unsatisfactory for
16a number of reasons for Mr Irving to go back into the
17witness box ----
18MR JUSTICE GRAY:    I think it would.
19MR RAMPTON:    --- for further cross-examination.
20MR IRVING:    I would be quite happy to go back into the witness
21box.
22MR RAMPTON:    No. I was going to offer to cross-examine him
23tomorrow, but your Lordship said, no, that is not a good
24idea.
25MR JUSTICE GRAY:    I think it is even less a good idea now.
26MR RAMPTON:    So do I. All I can suggest is that we go away and

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 1prepare, is it Dr Fox tomorrow?
 2MR IRVING:    He is coming tomorrow morning.
 3MR RAMPTON:    He will not be very long.
 4MR IRVING:    Because he will not be allowed to adumbrate on the
 5matters that he was going to I think.
 6MR RAMPTON:    That is a matter for his Lordship, but if he
 7strays much beyond what is in his written statement then
 8I shall have something to say.
 9MR JUSTICE GRAY:    I have not yet re-read his statement.
10MR RAMPTON:    It is quite a long statement. It is somewhat
11representative, but it is quite long. Normally speaking
12nowadays, judge alone particularly, the witness statement
13stands as the evidence and if I do not cross-examine the
14witness goes away again.
15MR JUSTICE GRAY:    Yes. I have not played it quite in that way.
16MR RAMPTON:    There is flexibility.
17MR IRVING:    As he is an expert on the police decodes, he is one
18of the world's leading experts on that, I had intended
19asking him questions about those, but if Mr Rampton
20objects ----
21MR RAMPTON:    I would need to know what he was going to say.
22MR JUSTICE GRAY:    Do you want to thrash this out? If he maybe
23not going to be able to give any admissible evidence, it
24is better that he does not have to come all the way here.
25Do you want to have an argument about it now?
26MR RAMPTON:    No. I have nothing to say about what evidence he

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 1might give about decodes because it is not in his witness
 2statement. If he is going to give evidence about the
 3decrypts, I must have a witness statement in advance and
 4he had better not come tomorrow at all.
 5MR JUSTICE GRAY:    Technically that is right. What is he going
 6to say, do you hope?
 7MR IRVING:    I was going to question him as an expert on the
 8Bletchley Park operations and the extent of the decodes,
 9and what one could have expected, what he has seen in the
10decodes, the work he has done on them. He has spent six
11months of his life reading right through them.
12MR RAMPTON:    I think in all the circumstances I do need to have
13prior notice of that.
14MR JUSTICE GRAY:    Can we just focus to see quite what the issue
15is going to be? The evidence so far is, and correct me if
16I am wrong about this, is, yes, they would have been able
17to intercept and decode what you might call middle level
18kind of communications.
19MR IRVING:    Also from Himmler downwards, from Himmler to the
20Eastern Front.
21MR JUSTICE GRAY:    That is really the issue. I suppose you want
22to see how far you can take it up the ----
23MR IRVING:    We could usefully ask him, has he seen any Hitler
24orders of any nature whatsoever, and also what he has and
25what he has not seen in these archives.
26MR JUSTICE GRAY:    That is certainly relevant, but I think

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 1Mr Rampton does need to have advance notice so that he can
 2consult his own experts and put his case in
 3cross-examination.
 4MR RAMPTON:    I would need, if this is to be taken seriously in
 5the context of this case, which I can see it might be ----
 6MR JUSTICE GRAY:    It is certainly relevant.
 7MR RAMPTON:    I quite accept it is relevant. I need to have
 8chapter and verse from Dr Fox on paper. I then need to
 9have time to have the accuracy of what he says checked by
10others.
11MR JUSTICE GRAY:    That is fair.
12MR RAMPTON:    I really cannot just accept it like that.
13MR JUSTICE GRAY:    If they were intercepted, I am surprised they
14have not surfaced.
15MR IRVING:    If what has surfaced.
16?MR JUSTICE GRAY:    If high level messages from Himmler and so
17were intercepted at Bletchley on matters relevant to this
18case ----
19MR IRVING:    My Lord, with respect, I have brought to the
20attention of your Lordship already the ones of December
211st and December 4th 1941 where Himmler orders, says to
22Jackelm, "You have exceeded your authority and the
23guidelines. Any further arbitrary actions will be
24punished", you will remember.
25MR JUSTICE GRAY:    That was a Bletchley intercept, was it?
26MR IRVING:    That was from Himmler to Jackelm intercepted by the

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 1British, yes. It is a very important message on which
 2I rely very strongly. It indicates that one would have
 3expected messages to be there.
 4MR JUSTICE GRAY:    As I say, it is plainly relevant. But I do
 5not suggest you need to do it in huge detail given the
 6pressures you are under.
 7MR IRVING:    I did not want to go beyond the actual messages I
 8have already produced, my Lord. I wanted to ask him then
 9on the basis of his expertise what else, what the scope of
10the documentation is and has he seen anything, and does
11the documentation cover the entire spectrum from the most
12trivial matters like parking tickets, all the way up to
13these mass shootings on the Eastern Front, and so on.
14MR JUSTICE GRAY:    What I think Mr Rampton is entitled to
15is ----
16MR IRVING:    A little notice.
17MR JUSTICE GRAY:    --- probably on one page, like one of the
18things you do for me, just really giving the gist of what
19he is going to say. That is enough.
20MR RAMPTON:    Yes, I do, but I also will likely need to time to
21get some help with it because I cannot ask questions about
22something about which I know nothing. If I am told that
23I should not take Dr Fox's word for what he says, then
24I have to go and do some -- somebody has got to go and do
25some work.
26MR JUSTICE GRAY:    I see that. We may have to lose Dr Fox from

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 1his Friday slot.
 2MR IRVING:    We cannot do this by Friday quite clearly. In that
 3case I will have to introduce him sometime next week, but
 4I will fax to the Defence solicitors a one page proof of
 5what he intends to say.
 6MR JUSTICE GRAY:    Dr Fox is relatively available, is he?
 7MR IRVING:    Except on Mondays. He cannot come on Monday. He
 8is a lecturer I think at the University College or Jews
 9College or University of Canterbury somewhere.
10MR RAMPTON:    Can I suggest that he be deferred until after
11Professor Evans has finished?
12MR IRVING:    Yes.
13MR JUSTICE GRAY:    Yes, that is a good thing anyway.
14MR RAMPTON:    It is much better from your Lordship's point of
15view and from the Professor's point of view.
16MR JUSTICE GRAY:    We are not sitting on Friday that is now
17obvious.
18MR RAMPTON:    No.
19MR IRVING:    I hope your Lordship does not begrudge me the fact
20that I have not got another 45 minutes?
21MR JUSTICE GRAY:    No. We will adjourn now.
22(The witness stood down)
23(The court adjourned until Monday, 14th February 2000)
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