Irving libel trial Gray's judgment [Irving's site | Irving-v-Lipstadt site | Rae West's Site Home Page ]
File name was: (124K). 11th April 2000
Unlike all the other transcripts, this is not made from a disk supplied directly by Harry Counsell. I cannot guarantee there have been no alterations to it—RW
IN THE HIGH COURT OF JUSTICE           1996 I. No. 113

Royal Courts of Justice
Strand, London
Tuesday, 11th April 2000


B E T W E E N:

The Claimant appeared in person
MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons
and Mishcon de Reya) appeared on behalf of the First and
Second Defendants
MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on
behalf of the First Defendant Penguin Books Limited

MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
the Second Defendant Deborah Lipstadt

(Transcribed from the stenographic notes of Harry Counsell
& Company, Clifford's Inn, Fetter Lane, London EC4
Telephone: 020-7242-9346)

(This transcript is not to be reproduced without the written permission of Harry Counsell & Company)


MR JUSTICE GRAY: As the parties know, I have prepared a written judgment and, in the ordinary way, it would be simply handed down and nothing would be read from it, but, because of the public interest in this case, it seems to me to be right that I should read at any rate part of it.

What I propose to do, therefore, is to read the introductory section which is quite short and those parts of the judgment which contain my findings.

In this action the Claimant, David Irving, maintains that he has been libelled in a book entitled " Denying the Holocaust—The Growing Assault on Truth and Memory ", which was published by Penguin Books Limited and written by Professor Deborah Lipstadt, who are respectively the First and Second Defendants in the action. (For the sake of brevity I shall refer to them, as in due course I shall refer to the expert witnesses, by their last names).

The essential issues in the action can be summarised as follows: Irving complains that certain passages in the Defendants’ book accuse him of being a Nazi apologist and an admirer of Hitler, who has resorted to the distortion of facts and to the manipulation of documents in support of his contention that the Holocaust did not take place. He contends that the Defendants’ book is part of a concerted attempt to ruin his reputation as an historian and he seeks damages accordingly. The Defendants, whilst they do not accept the interpretation which Irving places on the passages complained of, assert that it is true that Irving is discredited as an historian by reason of his denial of the Holocaust and by reason of his persistent distortion of the historical record so as to depict Hitler in a favourable light. The Defendants maintain that the claim for damages for libel must in consequence fail.

Needless to say, the context in which these issues fall to be determined is one which arouses the strongest passions. On that account, it is important that I stress at the outset of this judgment that I do not regard it as being any part of my function as the trial judge to make findings of fact as to what did and what did not occur during the Nazi regime in Germany. It will be necessary for me to rehearse, at some length, certain historical data. The need for this arises because I must evaluate the criticisms of or (as Irving would put it) the attack upon his conduct as an historian in the light of the available historical evidence. But it is not for me to form, still less to express, a judgement about what happened. That is a task for historians. It is important that those reading this judgment should bear well in mind the distinction between my judicial role in resolving the issues arising between these parties and the role of the historian seeking to provide an accurate narrative of past events.

I then turn to the section of the judgment dealing with the meaning to be attributed to the passages complained of in Professor Lipstadt'S book. Paragraph 2.14:

I shall set out my findings as to the defamatory meanings borne by the passages complained of. In doing so, I will not allocate separate meanings to the individual passages selected for complaint because it is to be assumed that the reader’s understanding as to what is being conveyed about Irving will be derived from his or her reading of the book as a whole including the passages to which objection is taken. I do not believe that it is necessary or desirable to set out the meanings in the order in which it may be said that they emerge in the book.

Adopting the approach set out earlier, my conclusion is that the passages complained of in their context and read collectively bear the following meanings all of which are defamatory of him:

  • that Irving is an apologist for and partisan of Hitler, who has resorted to the distortion of evidence; the manipulation and skewing of documents; the misrepresentation of data and the application of double standards to the evidence, in order to serve his own purpose of exonerating Hitler and portraying him as sympathetic towards the Jews;

  • that Irving is one of the most dangerous spokespersons for Holocaust denial, who has on numerous occasions denied that the Nazis embarked upon the deliberate planned extermination of Jews and has alleged that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such extermination;

  • that Irving, in denying that the Holocaust happened, has misstated evidence; misquoted sources; falsified statistics; misconstrued information and bent historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs;

  • that Irving has allied himself with representatives of a variety of extremist and anti-semitic groups and individuals and on one occasion agreed to participate in a conference at which representatives of terrorist organisations were due to speak;

  • that Irving, in breach of an agreement which he had made and without permission, removed and transported abroad certain microfiches of Goebbels’s diaries, thereby exposing them to a real risk of damage.

  • that Irving is discredited as an historian.

I add two comments in relation to the meanings which I have found. The first is that I do not accept the contention of Irving that the passage at p14 of the book means that he supports violent groups. But I do consider that passage to be defamatory of him in suggesting that he agreed to take part in a meeting at which representatives of such groups would be present. My second comment is that I do not accept that the reference to Irving at p213 of the book, when read in the context of the other references to him, bears the meaning that he applauds the internment of Jews in Nazi concentration camps.

Those, therefore, are my findings on the defamatory meanings of the passages of which Mr Irving complains.

I come now to the section of the judgment which contains my findings as to the defence of justification.

The charges levelled at Irving’s historiography appear to me to lie at the heart of what Lipstadt wrote about him in Denying the Holocaust . I propose therefore to consider first whether the Defendants have made good their claim that, in what he has written and said about the Third Reich, Irving has falsified and misrepresented the historical evidence.

There are several aspects to this. The falsification and misrepresentation alleged by the Defendants relate to (a) the specific individual criticisms of Irving’s historiography which are addressed in section V above; (b) his portrayal of Hitler, which is dealt with at section VI; (c) his claims in relation to Auschwitz covered in section VII and, finally, (d) the bombing of Dresden which is dealt with in section XI.

The question which I shall have to decide is whether the Defendants have discharged the burden of establishing the substantial truth of their claim that Irving has falsified the historical record. In this connection I should repeat the caveat expressed at the beginning of this judgment: the issue with which I am concerned is Irving’s treatment of the available evidence. It is no part of my function to attempt to make findings as to what actually happened during the Nazi regime. The distinction may be a fine one but it is important to bear it in mind.

If the charge of misrepresentation and falsification of the historical evidence is substantially made out, there remains the question whether it was deliberate. Irving rightly stresses that the Defendants have accused him of deliberately perverting the evidence. For their part the Defendants recognise that it is incumbent on them to establish, according to the appropriate standard of proof, that the misrepresentation and falsification were motivated by Irving’s ideological beliefs or prejudices. In this context, I shall consider the submission made by Irving that he has been guilty, at worst, of making errors in his handling of the historical record. As I will explain in assess Irving’s motivation, I will also take into account the evidence of the public statements by Irving in which he allegedly denied the Holocaust; the evidence upon the basis of which the Defendants accuse him of anti-semitism and racism and the evidence of his alleged association with right-wing extremists.

That leaves the questions which arise out of Irving’s visits to the Moscow archive in 1992 to inspect the Goebbels’s diaries, namely whether he broke an agreement with the Russians by removing glass plates from the archive and whether he put the plates at risk of damage.

Finally, depending on my decisions on the issues to which I have already referred, it may be necessary to consider the relevance, if any, to my finding on the defence of justification of the imputations in Denying the Holocaust which the Defendants have either failed or not sought to justify. I shall also determine, if the need arises, whether the Defendants are entitled to pray in aid the provision of section 5 of the Defamation Act.

The allegation that Irving has falsified and misrepresented the historical evidence

Irving the historian

My assessment is that, as a military historian, Irving has much to commend him. For his works of military history Irving has undertaken thorough and painstaking research into the archives. He has discovered and disclosed to historians and others many documents which, but for his efforts, might have remained unnoticed for years. It was plain from the way in which he conducted his case and dealt with a sustained and penetrating cross-examination that his knowledge of World War 2 is unparalleled. His mastery of the detail of the historical documents is remarkable. He is beyond question able and intelligent. He was invariably quick to spot the significance of documents which he had not previously seen. Moreover he writes his military history in a clear and vivid style. I accept the favourable assessment by Professor Watt and Sir John Keegan of the calibre of Irving’s military history (mentioned in paragraph 3.4 above) and reject as too sweeping the negative assessment of Evans (quoted in paragraph 3.5).

But the questions to which this action has given rise do not relate to the quality of Irving’s military history but rather to the manner in which he has written about the attitude adopted by Hitler towards the Jews and in particular his responsibility for the fate which befell them under the Nazi regime.

The specific historiographical criticisms of Irving

As appears from section V above, the Defendants have selected nineteen instances where they contend that Irving has in one way or another distorted the evidence. Having considered the arguments, which I have summarised at some length, I have come to the conclusion that the criticisms advanced by the Defendants are almost invariably well-founded. For whatever reason (and I shall consider later the question of Irving’s motivation), I am satisfied that in most of the instances cited by the Defendants Irving has significantly misrepresented what the evidence, objectively examined, reveals.

Whilst it is by no means a conclusive consideration, it is right that I should bear in mind that the criticisms which the Defendants make of Irving’s historiography are supported by the evidence of historians of the greatest distinction. They are set out (along with many other similar criticisms that the Defendants have not pressed in the submissions made in these proceedings) in the meticulous written report of Evans, who is himself an historian of high standing. In the course of his prolonged cross-examination, Evans justified each and every one of the criticisms on which the Defendants have chosen to rely. In several instances his criticisms were supported by the Defendants’ other experts, van Pelt, Browning and Longerich. I am satisfied that each of them is outstanding in his field. I take note of the fact that the expert witnesses who were summoned by Irving to give evidence on his behalf did not in their evidence dispute the validity of the points made by Evans; nor did they seek to support or justify Irving’s portrayal of Hitler.

Whilst I take account of the standing of the witnesses who have spoken to the criticisms of Irving as an historian, I must arrive at my own assessment of the evidence relating to the nineteen instances relied on by the Defendants. In doing so, I have well in mind that many of the documents which I will need to analyse were chosen by Irving himself because they demonstrate, according to him, that Hitler was a friend of the Jews. Having set out the arguments at length in section V above, I am able to express my conclusions more succinctly than would otherwise have been the case. Whilst I will not attempt to address every argument that has been mounted, I will indicate in each case the reasons why I have concluded that Irving has misrepresented the evidence.

Hitler’s trial in 1924

I am satisfied that in Goering and to a lesser extent in Hitler’s War , Irving misrepresents Hitler’s role in the putsch . The evidence does not support the claim that Hitler was seeking to maintain order. Irving embroiders the incident when the ex-Army lieutenant is disciplined in such a way as to present Hitler as having behaved responsibly. But the evidence of Hitler’s role in the putsch suggests otherwise. Irving ought to have appreciated that Hofmann’s allegiance to Hitler rendered his testimony untrustworthy.

Crime statistics for Berlin in 1932

In my judgment it is a valid criticism of Irving that he chose to cite, without qualification, the claim made by Daluege, a committed Nazi, that in 1930 a strikingly large proportion of the offences of fraud were committed by Jews. Daluege’s enthusiastic membership of the Nazi party together with his activities on the Eastern front during the war should have led Irving to doubt any pronouncement of his affecting the Jews. Whilst I am sympathetic to Irving’s handicap in being unable now to obtain access to documents in the German archives, I am not persuaded that there exist documents which justify Irving in quoting without any reservation the claim made by Daluege.

The events of Kristallnacht

It was, I believe, common ground between the parties that Kristallnacht marked a vital stage in the evolution of the Nazis’ attitude towards and treatment of the Jews. It was the first occasion on which there was mass destruction of Jewish property and wholesale violence directed at Jews across the whole of Germany. As an historian of the Nazi regime, it was therefore important for Irving to analyse with care the evidence how that violence came about and what role was played by Hitler.

Readers of the account in Goebbels of the events of 9 and 10 November 1938 were given by Irving to understand that Hitler bore no responsibility for the starting of the pogrom and that, once he learned of it, he reacted angrily and thereafter intervened to call a halt to the violence. I accept the evidence of Evans and Longerich that this picture seriously misrepresents the available contemporaneous evidence.

Irving’s endeavour to cast sole blame for the pogrom onto Goebbels is at odds with the documentary evidence. Goebbels’s diary entry for 9 November, the telegram sent by Muller at 23.55 that night and the message despatched by Bohmcker all suggest that Hitler knew and approved of the anti-Jewish demonstrations. Given the significance of the events of Kristallnacht , an objective historian would in my view dismiss the notion that Hitler was kept in ignorance until a relatively late stage. Yet Irving pays little attention to the evidence which implicates Hitler. He gives a misleading and partial account of Goebbels’s diary entry. I cannot accept Irving’s explanation for his omission to refer to Muller’s telegram and Bohmcker’s message, namely that they add little, for both lend support to the thesis that Hitler knew and approved of the violence. Irving also omits to refer to the statement contained in the report of the internal party enquiry into the events of Kristallnacht that Goebbels had claimed in his speech at the Old Town Hall that Hitler had been told of the burning of Jewish shops and synagogues and had decided that such spontaneous actions should continue.

Irving’s account of Hitler’s reaction upon hearing (for the first time, according to Irving) of the violence is heavily dependent on what Irving was told by Hitler’s adjutants many years after the event. Whilst Irving is to be commended for his diligence in tracing and interviewing these witnesses, there is in my judgment force in the Defendants’ contention that Irving is unduly uncritical in his use of their evidence especially when it runs counter to the evidence of contemporaneous documents. I do not suggest that Irving should have discounted altogether the evidence he obtained from Bruckner, Schaub, von Below, Hederich and Futkammer. But in my view he ought to have approached their accounts with considerable scepticism and rejected them where they conflict with the evidence of the contemporaneous documents both before and after 1am on 10 November. That documentary evidence is, as Irving should have appreciated, inconsistent with the notion that Hitler was angry when he first heard of the destruction of Jewish property which was in progress. To write, as Irving did, that Hitler was "totally unaware of what Goebbels had done" is in my view to pervert the evidence.

In my judgment the account given by Irving of the interventions by Nazi leaders during the night of 9/10 November distorts the evidence. Irving’s interpretation at p276 of Goebbels and in his evidence in these proceedings of the telex sent by Heydrich at 1.20am on 10 November is misconceived. The terms of the telex demonstrate, in my view, that Heydrich was not seeking to protect Jewish property but rather was authorising the continuation of the destruction save in certain narrowly defined circumstances. Similarly I accept the evidence of Evans that the telex sent by Hess at 2.56am on 10 November (which, it is agreed, emanated from Hitler) was not a general instruction to "halt the madness" but rather to stop acts of arson against Jewish shops and the like, so permitting other acts of destruction to continue and Jewish homes and synagogues to be set on fire. Furthermore Irving should at the very least have doubted the claim by Wiedemann that Goebbels spent much of the night making telephone calls to stop the most violent excesses. The claim that during that night Hitler did everything he could to prevent violence against the Jews and their property is in my judgment based upon misrepresentation, misconstruction and omission of the documentary evidence.

The aftermath of Kristallnacht

Notwithstanding Irving’s argument, I am unable to detect any evidence that Goebbels felt apprehensive when he went to see Hitler on the morning of 10 November. It is in my judgment inconsistent with the evidence of what Hitler had ordered in the course of the previous night. Goebbels' diary entry about his meeting with Hitler at the Osteria is clear evidence of Hitler’s approval of the pogrom. Irving very properly quotes the entry but immediately follows the quotation with the categorical assertion that Goebbels was making a false claim in his diary about Hitler’s approval. I do not accept that the available evidence justifies Irving’s dismissal of this diary entry by Goebbels.

I accept the evidence given by Evans that Irving’s account of the investigation into the events of Kristallnacht and such disciplinary action was taken thereafter fails lamentably to reveal to his readers how much of a whitewash it was. I have summarised in paragraphs 5.79 and 5.80 above the evidence of the cursory investigation and the derisorily inadequate disciplinary action taken. Irving, in Goebbels , ignores these deficiencies.

The expulsion of Jews from Berlin in 1941

The Defendants advance two criticisms of Irving’s treatment of Himmler’s note of his conversation with Heydrich on 30 November 1941. In my view both criticisms are justified. The first is that Irving was wrong in his claim that the instruction Keine liquidierung (no liquidation) was intended to apply to Jews generally. Irving acknowledged that the inclusion in Himmler’s note of the words " aus Berlin " is clear evidence that the instruction relates solely to Jews being deported from Berlin and not to Jews from elsewhere. After some prevarication during the trial, Irving also accepted that he was mistaken when he read Judentransport (in the singular) as referring to Jewish transports (in the plural). The second criticism (which is more important for the purpose of this case) is that Irving is in error when he claims that the instruction not to liquidate the Jews on that transport emanated from Hitler. There is no evidence that Hitler "summoned" Himmler to his headquarters and "obliged" him to telephone to Heydrich an order that Jews were not to be liquidated.

Whilst I accept that an historian is entitled to speculate, he must spell out clearly to the reader when he is speculating rather than reciting established facts. In Hitler’s War (1977 edition) Irving presents Himmler’s note as "incontrovertible evidence" that Hitler issued a general order prohibiting the liquidation of Jews. The evidence from Wisliceny and Greiser, which is not mentioned by Irving, supports the view that Hitler was complicit in the deportation and killing of Jews in 1941. I do not accept Irving’s argument that the evidence of the summoning of Jeckeln to Berlin and the reference in Himmler’s diary for 4 December 1941 to "guidelines" amount to evidence from which it is reasonable to infer that there was a general prohibition in force at this time against the killing of all European Jews.

In regard to Himmler’s log for 1 December 1941, his manuscript is difficult to decipher. Irving claimed that that was the reason why he misread " haben " as " Juden ". Be that as it may, Irving accepted that he misrepresented this document. I do not accept that the error is immaterial: if it ordained that Jews were to remain where they were, out of harm’s way, it would have given protection to a very large number of Jews whose lives were in jeopardy if they were moved elsewhere. But, as Irving accepts, that was not what Himmler was ordering.

The shooting of the Jews in Riga

An objective historian is obliged to be even-handed in his approach to historical evidence: he cannot pick and choose without adequate reason. I consider that there is justification for the Defendants’ complaint that Irving was not even-handed in his treatment in Hitler’s War of the account given by General Bruns of the shooting of thousands of Jews in Riga. Irving appears readily to accept that part of Bruns’s account which refers to Altemeyer bringing him an order which prohibited mass shootings from taking place in the future. On the other hand Irving takes no account of the fact that, according to Bruns, it was only shootings "on that scale" which were not to take place in future. (A total of 5,000 Jews were shot in Riga on 30 November 1941). Nor does Irving mention that the order apparently stated that the shootings were to be carried out "more discreetly". In other words the shooting was to continue. Moreover Irving ignores Bruns’s earlier reference to Altemeyer telling him of an order that the Berlin Jews were to be shot in accordance with Hitler’s orders. My conclusion is that in these respects Irving has perverted the sense of Bruns’s account. I was unpersuaded by the explanation offered by Irving for his treatment of this evidence.

There is a related criticism made by the Defendants in relation to the Riga shooting, namely that Irving suppressed the evidence of the widow of Schultz-Dubois about Hitler’s reaction to a protest about the shooting. I am not satisfied that this criticism is made out. In the first place I am not persuaded by the evidence that at the material time Irving was aware of the account of Frau Schultz-Dubois: he testified that he had not read the relevant passage in Professor Fleming’s book. In the second place, I take the view that the nature of the evidence was such that Irving was entitled to discount it: it was at least third-hand and emanated from Admiral Canaris who was anti-Nazi and no friend of Hitler.

Hitler’s views on the Jewish question

Irving’s submissions on this topic appear to me to have a distinct air of unreality about them. It is common ground between the parties that, until the latter part of 1941, the solution to the Jewish question which Hitler preferred was their mass deportation. On the Defendants’ case, however, from the end of 1941 onwards the policy of which Hitler knew and approved was the extermination of Jews in huge numbers. Irving on the other hand argued that Hitler continued to be the Jews’ friend at least until October 1943. The unreality of Irving’s stance, as I see it, derives from his persistence in that claim, despite his acceptance in the course of this trial that the evidence shows that Hitler knew about and approved of the wholesale shooting of Jews in the East and, later, was complicit in the gassing of hundreds of thousands of Jews in the Reinhard and other death camps.

The evidence is incontrovertible (and Irving does not seek to dispute it) that Hitler was rabidly anti-semitic from the earliest days. He spoke, in his famous speech of 30 January 1939 and on other occasions, in the most sinister and menacing terms of the fate which awaited the Jews: they were a bacillus which had to be destroyed. The Defendants do not suggest that in the 1930s Hitler should be understood to have been speaking in genocidal terms. But, according to the Defendants, the position changed from late 1941 onwards. I was unconvinced by the strenuous efforts made by Irving to refute the sinister interpretation placed by the Defendants on Hitler’s pronouncements on the Jewish question from late 1941 onwards.

I do not propose to make individual findings about the Defendants’ criticisms of Irving’s treatment of those statements by Hitler. I have summarised them and the parties’ respective contentions about them. . Much of the argument revolved around questions of translation. I did not derive much assistance from the debate as to how words such as ausrotten , vernichten , abschaffen , umsiedeln and abtransportieren are to be translated. I believe that Irving accepted the argument of the Defendants’ experts that the Nazis often resorted to euphemism and camouflage when discussing the radical solutions to the Jewish question. For that and other reasons it was agreed on all sides that all depends on the context.

In my view consideration of the context requires an objective historian to take into account such matters as Hitler’s history of anti-semitism; the importance in the Nazi ideology of achieving racial purity; the attacks on Jews and their property before the outbreak of war; the policy of deporting Jews and the systematic programme, approved by Hitler, of shooting Jews in the East. So considered, I am satisfied that most, if not all, of the pronouncements by Hitler which are relied on by the Defendants do bear the sinister connotation which they put on them. To take but one example, when Frank said on 16 December 1941 that he had been told in Berlin "liquidate [the Jews] yourselves", I am satisfied that the evidence strongly supports the conclusion that he was reporting what Hitler had said to the Gauleiter on 12 December and that Hitler had indeed given instructions for the liquidation of the Jews. That after all is what the evidence suggests happened on an ever-increasing scale in the following months. Irving’s claim that Frank was telling his audience what he had told the authorities in Berlin (and not the other way round) appears to me to be wholly untenable.

As I have recorded above, Irving produced another "chain of documents" in support of his contention that the attitude of Hitler to the Jewish question was sympathetic and protective. I accept that on occasion, particularly in the early years, Hitler did intervene on behalf of Jews (usually individuals or identified groups). I accept also (as I have already said) that until 1941 Hitler favoured deporting the Jews. But I note that few documents in this chain come after the autumn of 1941. Those that do are at best equivocal. It appears to me to be perverse to interpret Himmler’s compromising letter to Berger of 28 July 1942 as referring to deportation. Objective consideration of that document suggests strongly that the responsibility with which Himmler said he had been entrusted by Hitler was the implementation of the policy of exterminating the Jews. I accept the conclusion of Evans that the chain of documents does little to justify or excuse Irving’s portrayal of Hitler’s views on the Jewish question.

It is my conclusion that the Defendants are justified in their assertion that Irving has seriously misrepresented Hitler’s views on the Jewish question. He has done so in some instances by misinterpreting and mistranslating documents and in other instances by omitting documents or parts of them. In the result the picture which he provides to readers of Hitler and his attitude towards the Jews is at odds with the evidence.

The timing of the "final solution" to the Jewish question: the Schlegelberger note

In my opinion Irving’s treatment of the Schlegelberger note and the importance which he attaches to it shed important light on the quality of his historiography.

It is to be borne in mind that the note is undated and unsigned. It is hearsay in the sense that its author is recording what Lammers claims to have been told by Hitler. It is an Abschrift (copy) rather than an original document. It has a number of unsatisfactory features, which might give rise to doubts about its authenticity. There is no clear evidence of the context in which the note came into existence. Yet Irving has seized upon the note and regards it, to quote his own words, as a "high-level diamond document". According to Irving, the note demonstrates that it was Hitler’s wish that the entire Jewish question be postponed until the end of the war. It is therefore the linchpin of his argument that Hitler was the Jews’ friend. The question is whether that is a conclusion to which an objective historian might sensibly come, taking due account of the surrounding circumstances.

I shall not devote time to discussing the question whether the document dates from 1941 (in which case it would be a wholly unremarkable document since it was at that time Hitler’s view that the Jews should in due course be deported) or from 1942, since Evans was disposed to accept, at least for the sake of argument, that the latter date may well be the correct one.

On the assumption that the note is a 1942 document, I consider that, in the light of all the surrounding circumstances and in the light of subsequent events, it is (to put it no higher) very doubtful if the Schlegelberger note is evidence of a wish on the part of Hitler to postpone the Jewish question until after the war, that is, to take no offensive action against them of any kind until after the cessation of hostilities. I do not believe that Irving was able to provide a satisfactory answer to the Defendants’ question: why should Hitler have decided suddenly in March 1942 to call a halt to a process which had been going on with his authority on a massive scale for at least six months. I am persuaded that, for the reasons advanced by Evans, it is at least equally likely that the note is concerned with the complex problems thrown up by the question how to treat half-Jews ( mischlinge ). It is noteworthy that the evidence suggests that at the Wannsee conference in January 1942 (where Heydrich claimed to be speaking with the authority of Hitler) a programme for the extermination of Jews had been discussed and in broad terms agreed upon. The delegates were, however, unable to resolve the thorny question of the mischlinge . That issue caused concern within the Ministry of Justice (where both Lammers and Schlegelberger worked). A resumed session of the Wannsee conference was arranged for 6 March 1942, when the question of the mischlinge was again discussed. There is no support in the documentary evidence for Irving’s contention that there was on this occasion general discussion of the Jewish question. No solution having been agreed, the balance of the evidence in my view suggests that it was decided to refer the issue of the mischlinge to Hitler for his decision. If that be right, the note simply records what Hitler decided on that limited question. If the Defendants’ explanation of the note is correct (and I have held that it is at least as likely an explanation as that put forward by Irving), the note does not possess the significance which Irving attaches to it.

I do not regard the arguments advanced by Irving set out above, as being without merit: they are worthy of consideration. But I do consider the Defendants’ criticism to be well-founded that Irving presents the Schlegelberger note as decisive and incontrovertible evidence (see Hitler’s War at p464) when, as he should have appreciated, there are powerful reasons for doubting that it has the significance which he attaches to it. Irving’s perception of the importance of the note appears to take no account of the mass murder of the Jews which took place soon afterwards.

Goebbels’s diary entry for 27 March 1942

I have concluded without hesitation that the manner in which Irving deals in Hitler’s War (both editions) with Goebbels’s diary entry of 27 March 1942 is misleading and unsupported by the circumstantial evidence. A comparison between the language of the diary and the account provided by Irving to his readers reveals stark discrepancies.

I recognise that Irving is justified in his claim that Goebbels was often mendacious in his diary entries. So the entries have to be scrutinised in the light of surrounding circumstances. But I do not accept that the evidence of the circumstances as they existed in March 1942 lends support to Irving’s claim that Goebbels concealed from Hitler the reality of what was happening in the death camps. I do not consider that Irving was able to point to evidence which controverted the contention of the Defendants that by March 1942 the "radical solution" favoured by Hitler was extermination and not deportation. It follows that I accept the submission that the way in which Irving deals with this diary is tendentious and unjustified.

Himmler minute of 22 September 1942.

I consider that the interpretation of Himmler’s terse note is problematic. I recognise that there are pointers (including for example the reference to Globocnik) which might be said to render this an incriminating document. But there is force in Irving’s argument that the internal evidence consisting in the language used in the note ( auswanderung or emigration) is consistent with the discussion between Himmler and Hitler having been about resettlement and not extermination.

That said, I accept the validity of the criticism that there was no warrant for the claim made by Irving that at that meeting Himmler pulled the wool over Hitler’s eyes. In my judgment, that claim ignores the circumstantial evidence as to the state of Hitler’s knowledge by September 1942 of the use of gas chambers to kill Jews. It also runs counter to the evidence of the nature of the relationship between Hitler and Himmler, who does not appear to have been a man likely to have practised a deception of this kind on his Fuhrer . I therefore accept the contention of the Defendants that Irving’s treatment of this minute is unjustifiably favourable to Hitler.

Himmler’s note for this meeting with Hitler on 10 December 1942

This is another document where much of the argument turned on a question of translation namely a whether abschaffen was to be translated as "to remove" or "to liquidate". I do not criticise Irving for opting for the former. However, I accept the Defendants’ argument that the reference in the note to keeping the well-to-do French Jews "healthy and alive" should have alerted an objective historian to the sinister significance of the note in regard to the fate awaiting the other French Jews. To that extent I accept the criticism of Irving for the way he has dealt with this note in Hitler’s War .

Hitler’s meetings with Antonescu and Horthy in April 1943

I regard the issue raised by the criticisms of Irving’s accounts of these meetings as important in assessing Irving’s historiography. It appears to me to be significant that there exist minutes of both meetings taken by officials who (as I believe Irving accepted) had no reason to obfuscate the effect of what was said.

I am satisfied that the Defendants’ criticisms of Irving’s treatment of the evidence relating to the meeting with Antonescu and, more particularly, with Horthy have substance. In assessing the evidence it appears to me that an objective historian would take into consideration, firstly, Hitler’s apparent objective in meeting the two leaders: it was to enable the Nazis to get their hands on the Romanian and Hungarian Jews respectively. Such an historian would ponder whether the language of the minutes can be said to be consistent with a desire on the part of the Nazis to secure the deportation of the Jews and nothing more. He would also have in mind the subsequent history of the Romanian and Hungarian Jews.

It does not appear to me that, in relation to these meetings, Irving approached the evidence in an objective manner. His account of the meeting with Antonescu was partial and on that account misleading. In relation to the meeting with Horthy, Irving failed to heed what appears to me to be powerful evidence that on the second day, 17 April, both Hitler and Ribbentrop spoke in uncompromising and unequivocal terms about their genocidal intentions in regard to the Hungarian Jews. Irving was constrained to accept that the pretext which he put forward for the meeting with Horthy (the Warsaw ghetto uprising which happened afterwards) was false, as was his explanation for the harsh attitude evinced by Hitler at the meeting (recent Allied bombing raids). I was not persuaded that Irving had any satisfactory explanation for his transposition from 16 to 17 April of Hitler’s comforting remark, made on 16 April, that there was no need for the murder or elimination of the Hungarian Jews. In my judgment Irving materially perverts the evidence of what passed between the Nazis and Horthy on 17 April.

The deportation and murder of the Roman Jews in October 1943

I do not accept that an objective analysis of the available evidence supports Irving’s claim that the effect of Hitler’s intervention was to prevent Himmler’s murderous plans for the Jews being brought into effect. It appears to me that it was specious for Irving to argue, as he did, that Hitler’s intervention was for the benefit of the Roman Jews, when the result of that intervention was that the Roman Jews were sent to the notorious concentration camp at Mauthausen where they were at the mercy of the SS. I also take the view that it was a culpable omission on Irving’s part not to inform his readers that these Jews were ultimately murdered.

Himmler’s speeches of 6 October 1943 and 5 and 24 May 1944

It is a common ground that in these three speeches Himmler was speaking, with remarkable frankness, about the murder of the Jews. The question is whether Irving dealt in an objective and fair manner with the evidence which those speeches afford as to Hitler’s knowledge of and complicity in the murder of the Jews. I am satisfied that he did not. Two of the speeches provide powerful evidence that Hitler ordered that the extermination of the Jews should take place. Yet in the 1977 edition of Hitler’s War Irving suggests that the existence of a Hitler order was an invention on the part of Himmler. It does not appear to me that the evidence supports that suggestion. I consider that Irving’s deduction that the transcript of the speech of 5 May was either altered after Himmler delivered the speech or sanitised before it was shown to Hitler is fanciful. The absence of any mention of that speech in the 1991 edition of Hitler’s War was in my judgment another culpable omission.

Hitler’s speech on 26 May 1944

Irving quoted the material part of this speech in full in Hitler’s War . I do not accept the Defendants’ argument that his prefatory comment amounts to misrepresenting or twisting Hitler’s words. The reader can judge for himself.

Ribbentrop’s testimony from his cell at Nuremberg

I accept that historians are bound by the constraints of space to edit quotations. But there is an obligation on them not to give the reader a distorted impression by selective quotation. In my view Irving fails to observe this duty when in the 1977 edition of Hitler’s War he quotes Ribbentrop’s belief that Hitler did not order the destruction of the Jews but fails to quote his immediately following comment that he at least knew about it.

Marie Vaillant-Couturier

I have no hesitation in concluding that the Defendants’ criticism of Irving in relation to the evidence of Vaillant-Couturier is justified. The evidence appears to me to be plain that the Judge’s note "This I doubt" referred and referred only to her supposition (for it was no more than that) that other camps (of which she would have had no direct knowledge) had systems for selecting inmates as prostitutes for SS officers. There is no reason to suppose that the Judge had any reservations about Vaillant-Couturier’s vivid, detailed and credible evidence about the womens’ camp at Auschwitz. Irving’s claim that Judge Biddle thought she was "a bloody liar" is a travesty of the evidence.

Kurt Aumeier

I find myself unconvinced by Irving’s argument that Aumeier is an unreliable witness. I prefer the contention of van Pelt and Evans for the Defendants that he is an important and credible witness as to the gassing procedures in place at Auschwitz. As deputy commander at the camp, he was in a position to know. Whilst there are clearly errors in his account, for the most part his recollections are convincing. It was of course legitimate for Irving to suggest that his account was the result of brutal pressure being brought to bear by his British captors, if he had evidence for such a suggestion. But it was not clear to me what evidence Irving was relying on. I further accept that Irving minimised the significance of Aumeier’s evidence (even if he did not suppress it altogether) when he confined reference to it to a footnote in his book Nuremberg .

Findings in relation to the instances of Irving’s historiography cited by the Defendants

For the reasons which I have given, I find that in most of the instances which they cite the Defendants’ criticisms are justified. In those instances it is my conclusion that, judged objectively, Irving treated the historical evidence in a manner which fell far short of the standard to be expected of a conscientious historian. Irving in those respects misrepresented and distorted the evidence which was available to him.

Evidence of Hitler’s attitude towards the Jews and the extent, if any, of his knowledge of and responsibility for the evolving policy of extermination

Some of the findings which I have already made in relation to the Defendants’ specific criticisms of Irving’s historiography bear upon the broader questions of Hitler’s attitude towards the Jews and his involvement, if any, in the ethnic cleansing of the Jews. I will not repeat those findings in this section of the judgment. Although the questions with which I am in this part of the judgement concerned are broad ones, they narrowed and crystallised in the course of the trial. As will be apparent from section VI above, the Defendants focused their attention upon Irving’s treatment of the evidence relating to the following topics: Hitler’s anti-semitism; the scale of the so-called executions of Jews in the East; the alleged use of gas chambers at the Operation Reinhard camps to kill Jews and evidence relating to the question of Hitler’s knowledge of and authority for the extermination of Jews by shooting and by gassing. In relation to all of these issues save the first, Irving’s stance appeared to me to alter in the course of the trial.

Hitler’s anti-semitism

Irving having accepted that Hitler was profoundly anti-semitic until he came to power, the question is whether, as Irving claimed, he lost interest in anti-semitism from about 1933 onwards because it was no longer politically advantageous for him.

In his comprehensive and scholarly report, Longerich analysed the evidence of Hitler’s anti-semitism both before and after 1933. He examined in particular Hitler’s public pronouncements on the Jewish question. I have already set out in this judgment many of those statements. Ignoring for the moment the question whether Hitler was advocating the deportation of the Jews or their extermination, the argument appears to me to hopeless that after 1933 Hitler lost interest in anti-semitism or that he ceased to be anti-semitic when he came to power. Despite his increasing preoccupation with other matters, Hitler reverted time and again to the topic of the Jews and what was to be done with them. He continued to speak of them in terms which were both vitriolic and menacing. For the reasons which I have already expressed in the earlier paragraphs of this section of the judgment, I am satisfied on the evidence of his public statements that Hitler’s anti-semitism continued unabated after 1933.

But account must also be taken not only of what Hitler said but also of what he did or authorised to be done or at least knew was being done in relation to the Jews. In the following paragraphs of this judgment I will summarise what appears to me to be the evidence of Hitler’s involvement in the successive programmes of shooting, deporting and gassing Jews in large numbers. This evidence (which is in large part accepted by Irving) would in my view convince a dispassionate historian of Hitler’s persistent anti-semitism. Even if (which I do not accept) the evidence supported the proposition that Hitler’s policy towards the Jews remained throughout that they should be deported, it cannot in my view sensibly be argued that uprooting Jewish men, women and children from their homes and dumping them in often appalling conditions many miles away to the East was other than anti-semitic. I therefore reject as being contrary to the evidence Irving’s claim that Hitler ceased to be anti-semitic from 1933 onwards.

The scale and systematic nature of the shooting of Jews by the Einsatzgruppen

I can deal quite briefly with the extensive evidence relied on by the parties in relation to this topic. The reason I can take that course is that Irving, as the case progressed, appeared to accept much of what Longerich and Browning said in their reports and in their oral evidence. In particular Irving agreed that the evidence, principally in the form of reports by the Einsatzgruppen , appears to establish that between 500,000 and 1,500,000 people (including a large proportion of Jews) were shot by those groups and by the auxiliary Wehrmacht units seconded to assist them. My understanding is that the Defendants suggest that the true figure was higher than this. But I do not see that, in the context of this case, any useful purpose would be served by my attempting to assess whether the evidence supports a higher figure.

Irving further accepted that the evidence indicates that the programme of shooting Jews in the East was systematic, in the sense that it originated in Berlin and was organised and co-ordinated from there. Furthermore Irving conceded that the evidence bears out the contention of the Defendants that Hitler sanctioned the killings. Irving testified that, if he had given audiences the impression by what he said in Australia in 1986 that the killings on the Eastern front had taken place without the knowledge and approval of Hitler and his cronies, he had been wrong to do so. His evidence was that "certainly Hitler sanctioned the killing of the Jews on the Eastern front". The evidence which prompted Irving to make these concessions consisted in the regular reports made by the Einsatzgruppen to Berlin; the preparation by the RHSA in Berlin of Ereignismeldungen (event announcements) and a report numbered 51 dated 29 December 1942 which recorded the "execution" of 363,112 Jews and which (as Irving accepted) was probably shown to Hitler. The Defendants also relied on the so-called Muller order of 1 August 1941 to which I shall have to return later. It appears to me that these concessions by Irving were rightly made. Apart form the existence of the evidence to which I have just referred the vast manpower required to carry out the programme at a critical stage in the war would surely have required the approval of Hitler.

It inexorably follows that Irving was misrepresenting the historical evidence when he told audiences in Australia, Canada and the US (as he accepted he did) that the shooting of Jews in the East was arbitrary, unauthorised and undertaken by individual groups or commanders.

The deportation of the Jews

As I have already indicated, there is little dispute between the parties that the policy of deportation emerged and evolved along the lines described in the report of Longerich. I have already rejected Irving’s argument that the evidence, whether in the form of the Schlegelberger note or otherwise, supports his contention that in early 1942 Hitler decided that the entire Jewish question should be postponed until after the war. In any event Irving does not dispute that the deportation of the European Jews continued apace in the months and years after the Wannsee conference. The real issue is whether their deportation was a prelude to their extermination and, if so, on what scale such extermination took place.

The scale on which Jews were gassed to death camps including the Reinhard Camps but excluding Auschwitz

There is no dispute that the use by the Nazis of gas to kill human beings had its origins in the euthanasia programme. When that ended, the gas vans were diverted to the Eastern territories where (as Irving accepts) they were used to kill healthy Jews in substantial numbers. Again there is some argument as to the numbers killed in the gas vans: Irving was reluctant to commit himself to an estimate of the number killed but he accepted that it ran into thousands. In the circumstances I do not intend to explore any further the evidence as to the number of those killed in vans.

Although strictly the camps at Chelmno and Semlin did not form part of Operation Reinhard, which was confined to the area of the General Government, I shall for convenience refer collectively to those two camps and to the camps at Belzec, Sobibor and Treblinka as "the Reinhard Camps". In relation to the Reinhard camps there are two issues: the first is how many Jews were gassed to death at these camps. The second is whether Hitler knew or approved of the extermination of Jews at these camps. (I will deal separately with the evidence about Auschwitz).

Addressing first the issue of the scale of the killings by gas at the Reinhard camps, it was Longerich’s opinion that the policy of exterminating Jews by the use of gas was an extension or development of the programme of shooting Jews which had commenced in the late autumn of 1941. As has been seen, Irving conceded that Jews were shot in enormous numbers over the ensuing months. In paragraphs 6.75 to 6.105 above I have endeavoured to trace and summarise the evidence on which the Defendants rely in support of their case that the gassing which took place at the Reinhard Camps was on a truly genocidal scale. The evidence can be categorised as documentary (although most of the Reinhard documents were destroyed); demographic and the accounts of eye-witnesses. On the basis of this evidence both Browning and Longerich conclude that many hundreds of thousands died in the gas chambers at the Reinhard camps.

I have summarised at paragraphs 6.106-8 above some of the arguments deployed by Irving for saying that the killing at the Reinhard camps was on nothing like the scale contended by the Defendants. But, as pointed out at paragraph 6.109-110, Irving did ultimately accept that the camps at Chelmno, Treblinka, and Sobibor were Nazi killing centres. He claimed, disingenuously in my opinion, that he made this concession so as progress the trial and thereby to enable the issue regarding Auschwitz to be examined in greater detail. Be that as it may, I understood Irving to accept that hundreds of thousands of Jews were killed at the Reinhard camps to which I have referred. I readily acknowledge that he disputed the estimates put on the number gassed to death by Longerich and Browning. But, given the huge number of deaths accepted by Irving, little appears to me to turn on the disparity in their respective estimates.

Evidence of Hitler’s knowledge of and/or complicity in the extermination of Jews in the gas chambers at the Reinhard camps

I turn to the issue regarding Hitler’s knowledge of and complicity in the gassing programme at the Reinhard camps. In my view that issue has to be examined in the light of three propositions, each of which I understood to be accepted by Irving. The first is that, from about November 1941, the Nazis had been engaged in carrying out a programme, which Hitler knew about and authorised, of killing by shooting many hundreds of thousands of Jews and others, initially in Russia and later spreading to towns in the Warthegau (the area of Poland incorporated into the Reich), the General Government (the remainder of Poland) and Serbia. The second is that hundreds of thousands of Jews were killed in the death camps set up under Operation Reinhard. The third is that, as Irving explicitly accepted, Hitler cannot have remained in ignorance of the extermination programme after October 1943. In the light of those propositions it is legitimate to formulate the question in this way: does the evidence establish or suggest that, whilst he approved of the genocidal policy of shooting Jews in the East, Hitler did not approve or sanction the genocidal use of the gas chambers at the Reinhard camps over the months from December 1941 until October 1943, and was also kept in ignorance that gassing on that scale was taking place.

I have used the phrase "kept in ignorance" in the preceding paragraph because it is part of the positive case advanced by Irving that the genocidal use of the gas chambers at the Reinhard camps was planned and implemented by Heydrich and overseen by Himmler. Does the evidence support Irving’s contention that Hitler was kept in ignorance of the manner in which Heydrich and Himmler were setting about solving the Jewish question?

I have examined above some of the documents on which the Defendants rely as evidence of Hitler’s involvement in the extermination at the Reinhard camps, starting with the meeting between Hitler, Himmler and Heydrich on 25 October 1941 and culminating in the letter written in 1977 by Hitler’s former personal secretary. Against those documents must be set Irving’s comment, which I accept is accurate, that there is no reference to be found to a Hitler Befehl (Hitler order) authorising the extermination of Jews by gassing at the Reinhard Camps . But, given the secrecy which surrounded the operation of the gas chambers, I would not have expected to have found such a document. For the same reason I consider that Irving’s argument as to Hitler’s ignorance derives little assistance from the fact that he is able to point to a number of documents where Hitler can be found still talking of the Madagascar plan or deportation to some other destination. The need for secrecy required the use of camouflage language when the fate of Jews was under public discussion.

My conclusion on this issue is that the evidence discloses substantial, even if not wholly irrefutable, reasons for concluding not only that Hitler was aware of the gassing in the Reinhard Camps but also that he was consulted and approved the extermination. My reasons for arriving at this conclusion are, firstly, that if (as Irving accepts) Hitler knew and approved the programme of shooting Jews, it is reasonable to suppose that he would have been consulted about and approved a policy to exterminate them by another means, namely by the use of gas. I consider that there are a number of documents which suggest that Hitler knew and approved the implementation of the new policy: for example the protocol of the Wannsee conference, at which the extermination programme was discussed, records Heydrich in his opening remarks that he was speaking with the authority of Hitler. But the main reason for my conclusion is that it appears to me to be unreal to suppose that Himmler would not have obtained the authority of Hitler for the gassing programme (and even more unlikely that he would have concealed it from his Fuhrer). Himmler’s Dienstkalendar provides clear evidence of the regularity of the meetings between Hitler and Himmler and of their having discussed the Jewish question at the time when Himmler was actively supervising the setting up and operation of the gas chambers in the Reinhard Camps. I therefore accept the evidence of Longerich and Browning which I have summarised at paragraph 6.105 above.


Identifying the issue

When the trial started, it appeared from Irving’s written statement of case that he was adhering to the position often adopted in his speeches about Auschwitz, namely that no gas chambers were commissioned or operated at the camp and that in consequence no Jew lost his or her life in gas chambers there.

As I have already observed, in the course of the trial Irving modified his position: he accepted that there was at least one gas chamber (or "cellar") at Auschwitz, albeit used solely or mainly for the fumigation of clothing. He also accepted that gassing of Jews had taken place at the camp "on some scale". He did not indicate on what scale. Irving firmly denied the claim advanced by van Pelt that 500,000 Jews were killed in morgue 1 of crematorium 2. The case for the Defendants on the other hand was, as I have said, that almost one million Jews were put to death in the gas chambers of Auschwitz.

In these circumstances the central question which, as it appears to me, falls to be determined is whether or not the evidence supports the Defendants’ contention that the number of deaths ran into hundreds of thousands or whether Irving is right when he claims that the killing by gas was on a modest scale.

The scale of the killing of Jews in the gas chambers

I have to confess that, in common I suspect with most other people, I had supposed that the evidence of mass extermination of Jews in the gas chambers at Auschwitz was compelling. I have, however, set aside this preconception when assessing the evidence adduced by the parties in these proceedings.

The "convergence" of evidence

The case for the Defendants, summarised above, is that there exists what van Pelt described as a "convergence" of evidence which is to the ordinary, dispassionate mind overwhelming that hundreds of thousands of Jews were systematically gassed to death at Auschwitz, mainly by the use of hydrogen cyanide pellets called Zyklon-B. I have set out at paragraphs 7.15 to 7.74 above the individual elements which make up that convergence of evidence. I have done so at some length (although not at such length as did van Pelt in his report) because it appears to me to be important to keep well in mind the diversity of the categories and the extent to which those categories are mutually corroborative.

I recognise the force of many of Irving’s comments upon some of those categories. He is right to point out that the contemporaneous documents, such as drawings, plans, correspondence with contractors and the like, yield little clear evidence of the existence of gas chambers designed to kill humans. Such isolated references to the use of gas as are to be found amongst these documents can be explained by the need to fumigate clothes so as to reduce the incidence of diseases such as typhus. The quantities of Zyklon-B delivered to the camp may arguably be explained by the need to fumigate clothes and other objects. It is also correct that one of the most compromising documents, namely Muller’s letter of 28 June 1943 setting out the number of cadavers capable of being burnt in the incinerators, has a number of curious features which raise the possibility that it is not authentic. In addition, the photographic evidence for the existence of chimneys protruding through the roof of morgue 1 at crematorium 2 is, I accept, hard to interpret.

Similarly Irving had some valid comments to make about the various accounts given by survivors of the camp and by camp officials. Some of those accounts were given in evidence at the post-war trials. The possibility exists that some of these witnesses invented some or even all of the experiences which they describe. Irving suggested the possibility of cross-pollination, by which he meant the possibility that witnesses may have repeated and even embellished the (invented) accounts of other witnesses with the consequence that a corpus of false testimony is built up. Irving pointed out that parts of some of the accounts of some of the witnesses are obviously wrong or (like some of Olere’s drawings) clearly exaggerated. He suggested various motives why witnesses might have given false accounts, such as greed and resentment (in the case of survivors) and fear and the wish to ingratiate themselves with their captors (in the case of camp officials). Van Pelt accepted that these possibilities exist. I agree.

The documentary evidence

Vulnerable though the individual categories of evidence may be to criticisms of the kind mentioned in the preceding paragraphs, it appears to me that the cumulative effect of the documentary evidence for the genocidal operation of gas chambers at Auschwitz is considerable.

The nature of the redesign in 1942 of crematorium 2 appears to me, for the reasons summarised in paragraph 7.59 to 7.63 above, to constitute powerful evidence that the morgue was to be used to gas live human beings who had been able to walk downstairs. Few and far between though they may be, documents do exist for which it is difficult to find an innocent explanation. I have in mind for example the minute of the meeting of 19 August 1942 (paragraph 7.66 above), which refers to Badenanstalten fur Sonderaktionen ("bath-houses for special actions") and the so-called Kinna report (paragraph 7.67 above). As to Muller’s letter about the incineration capacity of the ovens (see paragraphs 7.69 and 7.106 above), it does not seem to me that, despite its unusual features, a dispassionate historian would dismiss it out of hand, as did Irving, as a forgery. Van Pelt believed it to be genuine. He pointed out that there are two copies in different archives (in Domburg and in Moscow, where it has been since 1945). It was used at the trial of Hoss in 1948.If it had been forged before 1948, it would have been unlikely that the capacity would have been given as 4,756 corpses per day since that is a lower figure than the figures published by the Russians and the Poles at the end of the war. I accept the reasoning of van Pelt. If the Muller document is authentic, it is further cogent evidence of genocidal gassing because the capacity to which Muller refers cannot have been needed to incinerate those who succumbed to disease. Finally, there is the scientific evidence gathered by the Polish Central Commission in 1945-7 (paragraph 7.2 above) and the evidence of the Markiewicz report (see paragraphs 7.73 to 7.74 above).

The eye-witness evidence

Whilst I acknowledge that the reliability of the eye-witness evidence is variable, what is to me striking about that category of evidence is the similarity of the accounts and the extent to which they are consistent with the documentary evidence. The account of, for example, Tauber, is so clear and detailed that, in my judgment, no objective historian would dismiss it as invention unless there were powerful reasons for doing so. Tauber’s account is corroborated by and corroborative of the accounts given by others such as Jankowski and Dragon. Their descriptions marry up with Olere’s drawings. The evidence of other eye-witnesses, such as Hoss and Broad, would in my view appear credible to a dispassionate student of Auschwitz. There is no evidence of cross-pollination having occurred. It is in the circumstances an unlikely explanation for the broad similarity of the accounts in this category.

My conclusion is that the various categories of evidence do "converge" in the manner suggested by the Defendants. I accept their contention which I have summarised in paragraph 7.75 above. My overall assessment of the totality of the evidence that Jews were killed in large numbers in the gas chambers at Auschwitz is that it would require exceedingly powerful reasons to reject it. Irving has argued that such reasons do exist.

The Leuchter report

The reason why Irving initially denied the existence of gas chambers at Auschwitz was, as has been seen, the Leuchter report. I have summarised in some detail the findings made by Leuchter at paragraphs 7.82 to 7.89 above. I will not repeat myself. I have also set out at paragraphs 7.104 to 7.108 above the reasons why van Pelt on behalf of the Defendants dismissed the Leuchter report as flawed and unreliable. Those reasons were put to Irving in cross-examination. It is a fair summary of his evidence to say that he accepted the validity of most of them. He agreed that the Leuchter report was fundamentally flawed. In regard to the chemical analysis, Irving was unable to controvert the evidence of Dr Roth (summarised at paragraph 7.106 above) that, because the cyanide would have penetrated the brickwork and plaster to a depth of no more than one tenth of the breadth of a human hair, any cyanide present in the relatively large samples taken by Leuchter (which had to be pulverised before analysis) would have been so diluted that the results on which Leuchter relied had effectively no validity. What is more significant is that Leuchter assumed, wrongly as Irving agreed, that a greater concentration of cyanide would have been required to kill humans than was required to fumigate clothing. In fact the concentration required to kill humans is 22 times less than is required for fumigation purposes. As indicated in paragraph 7.105 above, and as Irving was constrained to accept, Leuchter’s false assumption vitiated his conclusion . Irving conceded the existence of many other factual errors in the Leuchter report.

In the light of the evidence of van Pelt and Irving’s answers in cross-examination, I do not consider that an objective historian would have regarded the Leuchter report as a sufficient reason for dismissing, or even doubting, the convergence of evidence on which the Defendants rely for the presence of homicidal gas chambers at Auschwitz. I have not overlooked the fact that Irving claimed that Leuchter’s findings have been replicated, notably in a report by Germar Rudolf. But that report was not produced at the trial so it is impossible for me to assess its evidential value.

Holes in the roof of morgue 1 at crematorium 2?

The strength of the criticisms of the Leuchter report may explain why, as the trial progressed, the emphasis of Irving’s case on Auschwitz appeared to shift from the absence of cyanide in the brick and plaster to the roof of morgue 1 at crematorium 2. As I have explained in paragraphs 7.91 to 7.93 above, Irving argues that there is no evidence of the presence of the chimneys or ducts by means of which, on the Defendants’ case, Zyklon-B pellets were poured down from the roof of morgue 1 into the gas chamber below (where the Defendants claim most of the deaths occurred). In particular Irving relied on a photograph of part of the collapsed roof which displayed no evidence of the apertures through which the chimneys would have protruded.

As the Defendants point out, this argument has some curious features. Firstly, Irving embraced it relatively recently in late 1998 (so that it cannot have been the basis for his denials before that date of the existence of gas chambers at Auschwitz). Secondly, Irving appeared at one stage to accept that there was a gas chamber in morgue 1 at crematorium 2, albeit one that was used for fumigation and not for killing. In that case it would seem that ducts or some other form of aperture would have been required to introduce the pellets into the chamber, since the morgue had no windows and a single gas-tight door. Thirdly, the argument is confined to morgue 1 at crematorium 2. Although Irving spent hardly any time in his cross-examination of van Pelt on the evidence that gassing took place elsewhere at Auschwitz, it is the Defendants’ case that gassing took place in other gas chambers, notably at crematorium 3.

Despite those curious features, Irving’s argument deserves to be taken seriously. I have summarised the Defendants’ response to it at paragraphs 7.109 to 7.111 above. In the end, the task for an historian is to weigh the evidence of the absence of signs of holes in the roof of the morgue against the opposing evidence that there were chimneys running through the roof. In my view van Pelt is right in his opinion that it is after so many years difficult to verify whether or not holes at one time existed in a roof which collapsed as long ago as 1944. It is unclear how much of the roof can be seen in the photograph on which Irving relies. The roof is in a bad state, so that it is hard to tell if there were holes in it. There is a possibility that the holes were backfilled. There is the evidence of eye-witnesses who observed or at least described pellets being poured down through the roof of the morgue. Olere’s drawing depicts clearly the chimneys running up towards the roof the gas chamber. Their appearance in his drawing corresponds with the description of them by Tauber and others. Photographs taken in 1942 (or 1943) and 1944, whilst difficult to interpret, are consistent with the presence of protruding chimneys. In these circumstances, I consider that an objective historian, taking account of all the evidence, would conclude that the apparent absence of evidence of holes in the roof of morgue at crematorium 2 falls far short of being a good reason for rejecting the cumulative effect of the evidence on which the Defendants rely.

Gas chambers for fumigation purposes or to serve as air raid shelters

I have no doubt that Irving is right that there was throughout a need to have fumigation facilities at the camp. There is documentary evidence of concern about the effect on the labour supply of prevailing mortality levels. As van Pelt accepted, ovens would have been required to cremate the large number who succumbed to disease. But in my judgment there is ample evidence which would have convinced an objective commentator that there were also gas chambers which were put to use to kill humans. In the first place there is the eye-witness evidence to which I have referred. Secondly, there is the evidence of van Pelt that the redesign of crematorium 2 in late 1942 was intended to cater for live human beings to walk down to an undressing room before being led into the chamber and to do away with the corpse-slide previously used to convey dead bodies downstairs. Thirdly, there is evidence that a camp doctor asked in January 1943 for the provision of an undressing-room, which would have been unnecessary if the crematorium were intended for corpses. Finally there is the evidence of the letter dated 31 March 1943 in which Bischoff requisitions, as a matter of urgency, a gas-tight door with a spy-hole of extra thickness. It is difficult to see why a spy-hole would be necessary in the door of a chamber used only for fumigating corpses or other objects. For these reasons I do not accept that an objective historian would be persuaded that the gas chambers served only the purposes of fumigation. The evidence points firmly in the direction of a homicidal use of the chambers as well.

I turn to Irving’s alternative argument that the redesign work carried out in early 1943 was to convert crematorium 2 (and crematorium 3) for use as an air-raid shelter. I accept his claim that there was at the time some concern about Allied air-raids in the region. I am prepared to assume in Irving’s favour that it was standard practice to equip shelters with gas-tight doors opening outwards and equipped with a peephole (although probably not with a metal grille on the inside). Nevertheless there appear to me to be cogent pragmatic reasons for a historian to conclude that the evidence does not support the air-raid shelter argument.

If the redesign was to convert the buildings to air raid shelters, there would have been no reason why the drawings and associated documents should not say so. But there is no hint in the documents that such was the intention. The question arises for whose benefit such shelters would have been built. It appears to me to be unlikely that the Nazis would be concerned to shelter the camp inmates. In any case the shelters would have been too small to accommodate more than a fraction of them. But the shelters would not have been suitable for SS personnel either, since the SS barracks were about one and a half miles way. So I cannot accept that this argument comes anywhere near displacing the conclusion to be drawn from the convergent evidence relied on by the Defendants for their contention as to the object of the redesign work.

"Death books"; decrypts and coke consumption

Irving advanced a number of subsidiary arguments. I can deal with them briefly because they did not impress me. I do not consider that they would have impressed a dispassionate historian either.

Irving relied on the fact that the camp registers or "death books" released by the Russians record deaths at Auschwitz, but make no mention of any deaths by gassing. The short answer to this point is that, according to the unchallenged evidence of a large number of witnesses, the books record only the deaths of those who were formally registered as inmates of the camp. The Jews who were selected on arrival to die were taken straight to the gas chambers without being registered. One would not therefore expect to find mention of the cause of death of those Jews in the death books.

Reports were sent regularly from the camp to Berlin in cypher. They were intercepted and decoded at Bletchley Park. Although these reports often gave the cause of death, they did not mention gassing. In my judgment there are two reasons why little significance is to be attached to this: the first is that there was a strict rule of secrecy about the gassing and the second is that, like the death books, these reports related to registered inmates only.

Irving argued that the quantity of coke required to burn one body would have been 35kg. He contended that the amount of coke which is recorded as having been delivered to Auschwitz is nothing like enough to kill the number of Jews who the Defendants say lost their lives in the gas chambers. But I accept that the evidence of van Pelt, which was based on contemporaneous documents (see paragraph 7.125 above), that, if the incinerators were operated continuously and many corpses were burnt together so themselves providing fuel, no more than 3.5kg of coke would have been required per corpse.

Having considered the various arguments advanced by Irving to assail the effect of the convergent evidence relied on by the Defendants, it is my conclusion that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews.

I then turn in the evidence to deal with the issue whether Mr Irving is properly to be described as a Holocaust denier, and I express the conclusion, I am not going to read out that section, but it is established that he is a Holocaust denier and that his denials are false for the reasons I have given in this judgment.

The next part of this section is devoted to the issues whether Irving is anti-Semitic and a racist. I arrive at the conclusion that the inference which, in my judgment, is clearly to be drawn from what Irving has said and written is that he is anti-Semitic. In relation to the allegation of racism, my conclusion is as follows:

I accept that Irving is not obsessed with race. He has certainly not condoned or excused racist violence or thuggery. But he has on many occasions spoken in terms which are plainly racist. Racism is to be condemned even if it is confined, as in Irving's case, to expressions of the kind which I have mentioned.

I then turn to the allegation that Mr Irving associates with right-wing extremists. I express the conclusion that the regularity of Irving's contacts with organizations, including the IHR and the National Alliance, confirms Irving's sympathetic attitude towards an organisation whose tenets would be abhorrent to most people. I arrive at the conclusion that Irving has associated to a significant extent with a number of individuals, all of whom are right-wing extremists, and I express the conclusion that I have no doubt that most, if not all of them, are Neo-Nazis who deny the holocaust and who are racist and anti-Semetic. I also have no doubt that Irving was aware of their political views. His association with such individuals indicates, in my judgment, that Irving shares many of their political beliefs."

I then deal with the issue of Dresden and, in particular, with Mr Irving's reliance on the forged Tages Befahl of No. 47. I do not propose to read out that section of the judgment.

Next I deal with Irving's conduct in relation to the Goebbels diaries in the Moscow archive. I will read that section:

I do not consider that the issues as to Irving’s conduct in relation to the Goebbels diaries in the Moscow archive have any bearing whatsoever on the central issue of Irving’s conduct as an historian. But Irving complains of Lipstadt’s account of his conduct and the Defendants seek to justify those criticisms. I shall therefore deal with this discrete issue now.

The two questions raised by this part of the plea of justification are, firstly, whether Irving broke (or, to use Lipstadt’s word, violated) an agreement with the Moscow archive in regard to his use of the glass plates on which the Goebbels diaries were inscribed and, secondly, whether by the manner in which he handled the plates Irving placed them at risk of damage.

The alleged breach of agreement

There were two occasions on which Irving removed plates from the archive: the first was on 10 June 1992, when he wanted to make copies of the plates; the second was on the following day when he removed two more plates in order to take them to London for testing. The two occasions need to be considered separately.

In relation to the first occasion, as I have summarised in paragraphs above, there was a conversation between Millar and Tarasov, who telephoned Bondarev to tell him to grant Irving access to the diaries. Irving stressed (and Millar confirmed) that there was no agreement as such with the Russians. I accept that there was nothing more than a single conversation between Millar and Tarasov. But it is possible to infer an agreement from that conversation and from the parties’ subsequent conduct. In my view it is right to do so.

Was there an implied term of that inferred agreement that Irving should not remove the plates from the archive? This question falls to be answered by reference to the circumstances as they existed in Moscow at the time. According to Irving, the archive was in a state of chaos. The Russians were willing to sell archive material if the price was right. There were no copying facilities in the archive. Irving testified that it was neither here nor there to the archivist if he removed the plates. I bear in mind that Irving acknowledged that he removed the plates "illicitly". But he denied breaching any agreement and I took him to mean that the removal was illicit in the sense that in normal circumstances an historian would not remove material from an archive. In these somewhat unusual circumstances I am not persuaded that Irving broke an agreement when he removed the plates overnight to have them copied.

The second occasion when plates were removed was rather different in the sense that Irving sought and obtained permission to remove the plates from the archive. The breach of agreement, according to the Defendants, arises out of the fact that, having removed the plates from the archive, Irving then took them to England to have them tested prior to their return to the archive. Was this a breach of the arrangement? Irving did not tell the Russians of his intentions. But there is no evidence that the Russians showed interest or concern what would happen to the plates whilst they were out of the archive. I have no doubt that it was throughout Irving’s intention to return the plates. I am not satisfied that a breach of an implied term of the arrangement has been established by the Defendants.

The alleged risk of damage to the plates

It is clear to me that, according to what Lipstadt wrote in Denying the Holocaust and the Summary of the Defendants’ case, her allegation was that the risk of damage arose on the occasion of the second removal of plates from the archive. According to Lipstadt, it was the transport of the plates to England and the testing which took place here, followed by the return journey to Moscow, which gave rise to the risk of damage. It was this which caused "serious concern in archival circles" about significant damage to the plates. I do not consider that the evidence bears out the allegation that any real risk of significant damage did arise. According to the unchallenged evidence of Irving, the plates were at all times securely packaged. When they were in possession of others, I see no reason to suppose that they were at risk. Showing one plate at a meeting in Munich does not appear to me to give rise to a risk of damage. When Irving left the plates in Munich, whilst he made an excursion to Rome, they were left in the hotel safe. In England the tests were carried out in reputable laboratories belonging to Kodak and Pilkington. I am satisfied that the physical interference was minimal and caused no risk to the integrity of the plates. The emulsion of the plates was not tested. Irving may well be right in his comment that the plates were safer whilst in his custody than they were in the archive. Accordingly I do not accept that the allegation of risk of damage to the is made out in relation to their removal from the archive to be taken to England for testing.

But the Defendants advanced an argument that, on the occasion of the first removal on 10 June, the plates were put at risk when they were left during the afternoon hidden behind a wall on some waste ground a short distance from the archive. I am satisfied that the plates were carefully wrapped in cardboard and plastic thereby eliminating the risk of physical damage. So the only risk which might be said to arise was if someone came across the plates by chance and removed them. Bearing in mind how far this is removed from the risk of which Lipstadt wrote and the unlikelihood of a passer-by showing interest in a package consisting of a couple of pieces of glass, I am not prepared to find that the allegation of risk to the plates is proved.

Assessment of Irving as an historian

The issue as to Irving’s motivation

After that brief digression to Moscow, I return to the central issue of Irving’s historiography. As I have already held, the passages in Denying the Holocaust of which Irving complains include as an important part of their defamatory sting the meaning that he has deliberately falsified and distorted the historical evidence because he is an apologist for and a partisan of Hitler and on that account is intent on exonerating him.

Irving considers, rightly, that this is a grave imputation because it reflects on his integrity as an historian. It is an imputation which the Defendants have sought to justify. Because of the seriousness of the charge, the standard of proof required is, in accordance with the approach which I have outlined above, commensurately higher. It goes without saying that it is an issue which requires anxious consideration.

It is necessary to define clearly what is the issue which must be decided. In the earlier parts of this section of the judgement, I have made findings adverse to Irving in relation to his historiography and in relation to his account of Hitler’s attitude towards the Jews including in particular Hitler’s complicity in the policy of exterminating them. I have further made findings, also adverse to Irving, in relation to his claims about Auschwitz and in relation to his account of the bombing of Dresden. Irving sought to defend what he has written and said as being a fair and accurate account of the historical evidence available to him. In the respects already set out in detail in this judgement, I have in the main found against him. But the Defendants must, as they accept, go further if they are to succeed in their plea of justification: they must establish that the misrepresentation by Irving of the historical record was deliberate in the sense that Irving was motivated by a desire borne of his own ideological beliefs to present Hitler in a favourable light. Irving’s case is that, if (which he denied but which I have found) he has misrepresented the evidence, such misrepresentation was innocent in the sense that it arose through simple mistake or misapprehension. He denied the charge of deliberate falsification or perversion of the evidence.The issue which I must decide is whether the Defendants have proved that denial to be false.

The relevant considerations

Issues as to a person’s motivation have to be decided by reference not only to the direct evidence of the person concerned (in this case Irving) but also by reference to the surrounding circumstances from which inferences as to his motivation may be drawn. In the present case such circumstances include the nature and extent of the misrepresentations of the evidence together with Irving’s explanation or excuse for them. But in my judgment it is relevant to take into account also such matters as Irving’s conduct and attitudes outwith the immediate context of his work as a professional historian, including the evidence of his political or ideological beliefs as derived from his speeches, his diaries and his associates. I also consider that it is material to have regard to the manner in which he has conducted these proceedings. These are all matters from which inferences may legitimately be drawn as to Irving’s motivation.

The convergence of the historiographical misrepresentations

Historians are human: they make mistakes, misread and misconstrue documents and overlook material evidence. I have found that, in numerous respects, Irving has misstated historical evidence; adopted positions which run counter to the weight of the evidence; given credence to unreliable evidence and disregarded or dismissed credible evidence. It appears to me that an analysis of those instances may shed light on the question whether Irving’s misrepresentation of the historical evidence was deliberate.

I have found that most of the Defendants’ historiographical criticisms of Irving set out in section V of this judgement are justified. In the vast majority of those instances the effect of what Irving has written has been to portray Hitler in a favourable light and to divert blame from him onto others. I have held that this is unjustified by the evidence. Examples include Irving’s portrayal of Hitler’s conduct and attitude towards the events of Kristallnacht and the importance attached by Irving to Hitler’s attitude towards the Jewish question as he claims is evidenced by the Schlegelberger note. I have seen no instance where Irving has misinterpreted the evidence or misstated the facts in a manner which is detrimental to Hitler. Irving appears to take every opportunity to exculpate Hitler. The same is true of the broader criticism made by the Defendants’ of Irving’s unwarrantedly favourable depiction of Hitler in regard to his attitude towards the Jews, which criticism I have found in section VI above to be justified. Irving sought in his writings to distance Hitler from the programme of shooting Jews in the East and from the later genocide in the death camps in a manner which the evidence did not warrant. Irving has argued, unjustifiably as I have found, that the evidence indicates that Hitler was unaware of any programme for the extermination of Jews at Auschwitz. In his account of the bombing of Dresden Irving (as I have found in section X1 above) persistently exaggerates the number of casualties, so enabling him to make comparisons between the number of civilians killed in Allied bombing raids with the number of Jews killed in the camps.

In my opinion there is force in the opinion expressed by Evans that all Irving’s historiographical "errors" converge, in the sense that they all tend to exonerate Hitler and to reflect Irving’s partisanship for the Nazi leader. If indeed they were genuine errors or mistakes, one would not expect to find this consistency. I accept the Defendants’ contention that this convergence is a cogent reason for supposing that the evidence has been deliberately slanted by Irving.

The nature of some of Irving’s errors

As I have already indicated it is material to take account of the nature or quality of what Irving claims to have been mistakes or misapprehensions on his part. Certain of Irving’s misrepresentations of the historical evidence might appear to be simple mistakes on his part, for instance the misreading of haben as Juden in Himmler’s telephone log for 1 December 1941. But there are other occasions where Irving’s treatment of the historical evidence is so perverse and egregious that it is difficult to accept that it is inadvertence on his part. Examples include Irving’s rejection of the evidence for the existence of gas chambers at Auschwitz; his claim that Hitler lost interest in anti-semitism on coming to power; his account of Hitler’s meeting with Horthy in April 1943; his wholesale dismissal of the testimony of Marie Vaillant-Couturier and his continued reliance on the forged Tagesbefehl No. 47 which purportedly gave the number of casualties in Dresden. I have referred in the course of this judgment to other instances where Irving’s account flies in the face of the available evidence.

Mistakes and misconceptions such as these appear to me by their nature unlikely to have been innocent. They are more consistent with a willingness on Irving’s part knowingly to misrepresent or manipulate or put a "spin" on the evidence so as to make it conform with his own preconceptions. In my judgment the nature of these misstatements and misjudgments by Irving is a further pointer towards the conclusion that he has deliberately skewed the evidence to bring it into line with his political beliefs.

Irving’s explanations for his errors

In the course of his cross-examination Irving was asked on numerous occasions to provide explanations for what he had written or said. Thus he was asked why he had omitted to make reference to apparently significant events; why he had relied on sources whose reliability there was good reason to doubt; what was the source of evidence for particular assertions. It seems to me that one way of testing whether Irving’s errors were the product of innocent mistakes on his part is to look at his explanations.

In his answers Irving offered various explanations for his omission of apparently significant evidence. He gave as the reason why he did not refer to the evidence of Hofmann when dealing with the trial of Hitler in 1924 that it was too long to be included. But the records of Hofmann’s testimony ran to no more than five pages. He sought to excuse his omission to include in his account of the shooting of Berlin Jews in Riga the claim made by Bruns that there had been a Hitler order by saying that it "would bore the pants off an audience". Asked to explain why he omitted to refer in the 1991 edition of Hitler’s War to the sinister fate awaiting the 600,000 French Jews who were not well-to-do and so not to kept healthy and alive, Irving answered that the 1991 edition was an abridged version and the omission had to be made for editorial reasons. His explanation for not informing his readers of the reasons for supposing that the Schlegelberger note may have been concerned with the problem of the mischlinge was that he was writing a book which had to be kept within the confines of a single volume. Irving gave a similar explanation for his suppression (as the Defendants claim that it was) of material parts of Goebbels’s diary entry of 27 March 1942. Irving excused his inability to answers certain questions about Auschwitz (for example about cremations there and his reason for not having visited Auschwitz) by saying that he is not an expert on Auschwitz. Irving balmed his editor for the retention of his mistranslation of haben zu bleiben as "Jews are to stay" after he had been informed of his error. When he was asked to identify the eye-witness who told him about the telephone box-cum-gas chamber story, Irving replied that he could not recall but that he read about it or seen it some ten years ago. Earlier in this judgment I have cited other examples of Irving’s explanations for his lapses.

I recognise that it is not always easy for Irving to cast his mind back over the years so as to explain why and how his mistakes were made. In my view, however, in many instances, including those set out in the preceding paragraph, the explanations which he offered were unconvincing. The absence of credible explanations lends further support to the Defendants’ argument that Irving’s misrepresentation of the historical record was not inadvertent.

Irving’s readiness to challenge the authenticity of inconvenient documents and the credibility of apparently credible witnesses

I accept that it is necessary for historians, not least historians of the Nazi era, to be on their guard against documents which are forged or otherwise unauthentic. But it appeared to me that in the course of these proceedings Irving challenged the authenticity of certain documents, not because there was any substantial reason for doubting their genuineness but because they did not fit in with his thesis.

The prime example of this is Irving’s dismissal of Bischoff’s letter of 28 June 1943 dealing with the incineration capacity of the ovens at Auschwitz (to which I have referred above). As already stated. I agree with the assessment of van Pelt that there is little reason to doubt the authenticity of this document. Yet Irving argued strenuously that it should be dismissed as a forgery. In my judgment he did so because it does not conform to his ideological agenda. Similarly Irving devoted much time to challenging the authenticity of Muller’s instruction to furnish Hitler with reports of the shooting. I believe that he did so because this was for him an inconvenient document and not because there were real doubts about it genuineness. (Irving ultimately accepted its bona fides ). There were other occasions when Irving sought to cast doubt on the authenticity of documents relied on by the Defendants (for example the Anne Frank diaries and the report of the gassing of 97,000 Jews at Chelmno referred to above). In neither case did Irving’s doubts appear to me to have any real substance. His attitude to these documents was in stark contrast to his treatment of other documents which were more obviously open to question. One example is Irving’s unquestioning acceptance of the Schlegelberger memorandum despite the uncertainty of its provenance. Another is his reliance on Tagesbefehl No. 47 in the teeth of mounting evidence that it was a forgery. In my judgment there is force in the Defendants’ contention that Irving on occasion applies double standards to the documentary evidence, accepting documents which fit in with his thesis and rejecting those which do not.

As I have already observed in the course of dealing with the historiographical criticism of Irving, there is a comparable lack of even-handedness when it comes to Irving’s treatment of eye-witnesses. He takes a highly sceptical approach towards the evidence of the survivors and camp officials at Auschwitz and elsewhere who confirm the genocidal operation of gas chambers at the camp (Tauber, Olere, Wisliceny, Hoss and Miller). But in relation to other witnesses (such as Hitler’s adjutants, Christa Schroder and Voigt), where there is greater reason for caution about their testimony, Irving appears to adopt it uncritically. I accept that Irving had interviewed personally many of the witnesses in the latter category and so could form his own assessment. Even so, the contrast in approach is remarkable.

The double standards which Irving adopts to some of the documents and to some of the witnesses appears to me to be further evidence that Irving is seeking to manipulate the evidence rather than approaching it as a dispassionate, if sometimes mistaken, historian.

Irving’s concessions

It was a striking feature of the case that in the course of it Irving made, or appeared to make, concessions about major issues. In doing so he resiled from the stance adopted by him in relation to those issues before trial. Such concessions were made by Irving in relation to the shooting of Jews in the East; the use of gas vans at Chelmno and in Yugoslavia; the gassing of Jews at the Action Reinhard camps; the existence and genocidal use of gas chambers at Auschwitz and the Leuchter report.

I set out some of the concessions which were made, and in paragraph 13.159 I say this:

What is the significance of these alterations in Irving’s stance in realtion to the issue with which I am at present concerned, namely Irving’s motivation? It seems to me that the Defendants are justified in their contention that Irving’s readiness to resile from positions he had adopted in what he has written and said about important aspects of the Holocaust demonstrates his willingness to make assertions about the Nazi era which, as he must appreciate, are irreconcilable with the available evidence. I also consider that there is force in the Defendants’ contention that Irving’s retraction of some of his concessions, made when he was confronted with the evidence relied on by the Defendants, manifests a determination to adhere to his preferred version of history, even if the evidence does not support it.

Extraneous circumstances:

I pointed out earlier that there may be circumstances extraneous to Irving’s practice of his profession as an historian from which it may be the legitimate to draw inferences as to whether his misrepresentation of the historical evidence has been deliberate. If the evidence supports the view that Irving is a dispassionate objective student and chronicler of the Nazi era, that would militate powerfully against the conclusion that he is working to agenda of his own. Conversely, if the extraneous evidence indicates that Irving holds views which are pro-Nazi and anti-semitic and that he is an active protagonist and supporter of extreme right-wing policies, that would support the inference that he perverts the historical evidence so as to make it conform with his ideological beliefs.

I have already set out above my conclusion that Irving displays all the characteristics of a Holocaust denier. He repeatedly makes assertions about the Holocaust which are offensive to Jews in their terms and unsupported by or contrary to the historical record. I have also given at section IX above the reasons for my findings that Irving is an anti-semite and a racist. As I have found in section X above, Irving associates regularly with extremist and neo-Nazi organisations and individuals. The conclusion which I draw from the evidence is that Irving is sympathetic towards and on occasion promotes the views held by those individuals and organisations.

It is not difficult to discern a pattern to the activities and attitudes to which I have alluded in the preceding paragraph. Over the past fifteen years or so, Irving appears to have become more active politically than was previously the case. He speaks regularly at political or quasi-political meetings in Germany, the United States, Canada and the New World. The content of his speeches and interviews often displays a distinctly pro-Nazi and anti-Jewish bias. He makes surprising and often unfounded assertions about the Nazi regime which tend to exonerate the Nazis for the appalling atrocities which they inflicted on the Jews. He is content to mix with neo-fascists and appears to share many of their racist and anti-semitic prejudices. The picture of Irving which emerges from the evidence of his extra-curricular activities reveals him to be a right-wing pro-Nazi polemicist. In my view the Defendants have established that Irving has a political agenda. It is one which, it is legitimate to infer, disposes him, where he deems it necessary, to manipulate the historical record in order to make it conform with his political beliefs.

Finding as to Irving’s motivation

Having reviewed what appear to me to be the relevant considerations, I return to the issue which I earlier defined. I find myself unable to accept Irving’s contention that his falsification of the historical record is the product of innocent error or misinterpretation or incompetence on his part. When account is taken of all the considerations which I have set out, it appears to me that the correct and inevitable inference must be that for the most part the falsification of the historical record was deliberate and that Irving was motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence.

Finding in relation to the plea of justification

The test

I have already set out, the test which is to be applied when deciding the fate of the plea of justification, namely whether the Defendants have established to the appropriate standard that the imputations published about Irving are, in the meanings which I have found them to bear, substantially justified. As I have pointed out, the Defendants are entitled, if and to the extent that may be necessary, to take advantage of the provisions of section 5 of the Defamation Act 1952.

The anti-Zionist conference, the Moscow archive and section 5 of the Defamation Act 1952

My overall finding in relation to the plea of justification is that the Defendants have proved the substantial truth of the imputations, most of which relate to Irving’s conduct as an historian, with which I have dealt in the preceding paragraphs of the judgment. My finding is that the defamatory meanings set out in paragraph 2.15 of the judgment at (i), (ii), (iii) and the first part of (iv) are substantially justified.

But there are certain defamatory imputations which I have found to be defamatory of Irving but which have not been proved to be true. The Defendants made no attempt to prove the truth of Lipstadt’s claim that Irving was scheduled to speak at an anti-Zionist conference in Sweden in 1992, which was also to be attended by various representatives of terrorist organisations such as Hezbollah and Hammas. Nor did they seek to justify Lipstadt’s claim that Irving has a self-portrait by Hitler hanging over his desk. Furthermore the Defendants have, as I have held, failed in their attempt to justify the defamatory imputations made against Irving in relation to the Goebbels diaries in the Moscow archive. The question which I have to ask myself is whether the consequence of the Defendants’ failure to prove the truth of these matters is that the defence of justification fails in its entirety.

The answer to that question requires me to decide whether (I am paraphrasing section 5 of the Defamation Act 1952) the failure on the part of the Defendants to prove the truth of those charges materially injures the reputation of Irving, in view of the fact that the other defamatory charges made against him have been proved to be justified. The charges which I have found to be substantially true include the charges that Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence; that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light, principally in relation to his attitude towards and responsibility for the treatment of the Jews; that he is an active Holocaust denier; that he is anti-semitic and racist and that he associates with right wing extremists who promote neo-Nazism. In my judgment the charges against Irving which have been proved to be true are of sufficient gravity for it be clear that the failure to prove the truth of the matters set out in the earlier paragraph above does not have any material effect on Irving’s reputation.

In the result therefore the defence of justification succeeds.

It follows that there must be judgment for the Defendants.

MR RAMPTON: My Lord, in those circumstances, I would invite your Lordship to enter judgment for the Defendants and to make an order that the Claimant, Mr Irving, pay the Defendants' costs of these proceedings.


MR RAMPTON: I shall have something more to say about that last matter, if your Lordship will make the order after having heard Mr Irving.

MR JUSTICE GRAY: Certainly. Mr Irving?

MR IRVING: My Lord, on the issue of costs, as your Lordship is aware, I think that there should be a hearing on the issue of costs probably separate from this morning's hearing because there are matters going to the issue of costs which are probably too intricate to deal with here with in short order. For one example, the question of the expert reports which has not been provided and so on. Some of these experts have been paid very substantial sums indeed. I think Professor van Pelt has been paid &£;109,000 for his expert report. Some of the other experts who have been invited to provide reports have been paid substantial sums of money and those reports have not been produced.

MR JUSTICE GRAY: I see the sorts of issues you have got in mind and I do have some sympathy.

MR IRVING: And also issues going to the conduct of the case which I wish to raise which are also relevant in this matter.

MR JUSTICE GRAY: I am not saying I agree with this, but I do understand why you feel perhaps that today is not right the occasion to be discussing those details.

MR IRVING: It will certainly be a matter of an hour or so. That is all I have to say on the issue of costs at this time, my Lord.

MR JUSTICE GRAY: Yes, Mr Rampton? I do have some sympathy with the notion that this is not quite the right time to be dealing with detailed issues.

MR RAMPTON: Of course I accept that that falls to be dealt with at a detailed assessment in any event. If there should be items of costs which Mr Irving disputes, then that is the time to deal with them. But the matter of principle is, in my submission, an easy one. We have won this case, I would say, conclusively.

MR IRVING: Subject to appeal.

MR RAMPTON: Of course.

MR JUSTICE GRAY: Leave aside the question of appeal for the moment. Of course, that is right; I am not doubting that for a moment.

MR RAMPTON: So the order for costs should follow.

MR JUSTICE GRAY: All I think I am saying is really this, that, yes, of course you are right that the bulk of the costs are going to be the Defendants' costs, they are going to have the bulk of their costs, but I do see that there may be arguments, for example, in relation to the unused experts, which I think it is for me probably to assess rather than anyone else at a later stage.

MR RAMPTON: That may be. I certainly do not want to spend any more of today dealing with the detail of that. In fact, I would much rather leave it Miss Rogers anyway who understands these things in much greater depth than I do.

I had been going to ask, if your Lordship would make the order for costs in general terms, for a payment on account in accordance with the rules. given, However, what Mr Irving has just said and your Lordship's reaction to it, it may be better that I do not do that now.

MR JUSTICE GRAY: Yes, well, again I am not unsympathetic to the application, but it is plainly premature for me to make any such order now.

MR RAMPTON: There is a substantial file. I do, however, put down a marker that when the matter comes back to your Lordship for more detailed argument, I will ask for a payment on account, as it were, without the need for a detailed assessment ----


MR RAMPTON: --- given the substantial amount of the costs and, as I have said, what I would respectfully say was a conclusive victory on the truth of this matter for the Defendants.

MR JUSTICE GRAY: I am not going to prejudge that application, but Mr Irving now knows you are going to be making it, for a payment on account.

MR IRVING: My Lord, but under the new rules, of course, there is a great degree of latitude invested in your Lordship on the matter of costs. Your Lordship will not be unfamiliar with the fact that I am a litigant in person. I am acting from a position of substantially less affluence than the Defence in this matter who have the backing -- I mean, we are all people of the world -- of very powerful organizations, very wealthy individuals, and I am trusting that the court will take these matters into account when the time comes.

MR JUSTICE GRAY: Well, I am not so sure about that, but if we are postponing the questions of costs ----

MR IRVING: It is within your Lordship's gift, of course.

MR JUSTICE GRAY: I really do not think there is much point in having a slightly sort of superficial...

MR IRVING: I wish purely to wave a little flag as to some of the matters that I shall raise. This is a matter within your Lordship's gift under the new rules. The conduct of the case is a matter to be considered by the Defendants in this matter going right back to the pre-action ----

MR JUSTICE GRAY: Mr Irving, all I am going to say on the question of costs is that plainly it is inevitable the Defendants are going to have the vast bulk of their costs. It is possible -- I do not put it any higher than that -- there may be discrete elements in the costs incurred by the Defendants which you may have an argument for saying should not be payable by you, but we will discuss that on a later occasion.

MR IRVING: The other point I would wish to make, if there is any attempt or signs that the Defence is intending to use such an application as a means to deny me the right to appeal by that means, then I think that the court should frown on that.

MR JUSTICE GRAY: That is pretty much out of my hands. That is really a matter in the end for the Court of Appeal.

MR RAMPTON: There is no question of that, and I will say with a feeling of very considerable resentment that the picture of Mr Irving waving what is now a flag in tatters as the man who brought this action and who has been defeated by a plea of truth is not, I feel, a very appealing picture.

MR JUSTICE GRAY: Yes, well, perhaps that is all we need to say on the question of costs.

MR IRVING: My Lord, they have not prevailed in all the issues that they have raised, they have not prevailed in their entire defensive, and I have to draw the attention of the court to that matter. Your Lordship has been good enough to point out the fact that in three important matters they have failed to establish a justification. So my flag is not entirely in tatters and under appeal I think that I shall restore the colour of the flag in its true glory.

MR JUSTICE GRAY: May I make this suggestion, Mr Irving, that you might -- it really can be done on a single sheet of paper -- just jot down the particular elements in the costs that have been incurred which you say should not be payable by you prior to our resumed discussion of the issue of costs, just so that I can focus before the hearing on what you are going to be arguing about? Would you do that?

MR IRVING: What time-scale are we talking about, my Lord?

MR JUSTICE GRAY: I think it is best we leave the fixing of the date for the further discussion on costs to be done through what is described as "the normal channels" just to make sure it is convenient to everybody.

MR RAMPTON: Only one other matter which needs to be formalized, I believe, Mr Irving speaks of an appeal.

MR JUSTICE GRAY: He has not asked for leave.

MR RAMPTON: No, he may not be aware that he now needs permission.

MR JUSTICE GRAY: Yes. You do need permission to appeal.

MR RAMPTON: He has to ask the judge for it.

MR IRVING: My Lord, this is precisely what I was about to do when we dealt with the matter of costs. I now formally apply for leave to appeal on various grounds raised by your Lordship's judgment. I find myself guilty of, obviously, not having expressed myself with sufficient clarity during the 32 days of the hearing. It is my fault that your Lordship has failed to appreciate many of the points that I raised. This is quite clear and under appeal I would certainly wish to have these matters more adequately presented to the court. So I formally apply for leave to appeal.

MR JUSTICE GRAY: Yes. Shall I hear what Mr Rampton says about that and then you can reply.

MR RAMPTON: Your Lordship's judgment is a mixture of three strands in which two predominate. There is a small strand of law and, as far as I am concerned -- I am not just saying that because I am acting for the Defendants -- there is not the trace of an error of law in the judgment.

MR JUSTICE GRAY: There is hardly any law in there, is there not?

MR RAMPTON: Quite. There is nothing in which the Court of Appeal would be remotely interested, in my submission.

The two remaining strands are equally essentially and classically judge at first instance strands. They are credibility, the credibility principally of Mr Irving, but also of my expert witnesses, and they are questions of documentary interpretation, fact. If Mr Irving thinks that he can persuade the Court of Appeal to hear him, why, then let him make the attempt.

MR JUSTICE GRAY: Can I just put one point to you, that under the new regime there is a bit of guidance. It is a practice direction. Nothing much turns on most of it, but it does say that permission should not be given to appeal unless there is some realistic prospect of the appeal succeeding, and you rely on that. It goes on -- I just ought to ask you, I think, for your reaction to this -- "Permission may also be given in exceptional circumstances, even though the case has no real prospect of success, if there is an issue which in the public interest should be examined by the Court of Appeal. Examples are where a case raises questions of great public interest or questions of general policy or", I need not read the rest. In a way, that could be said to be this case.

MR RAMPTON: No, I do not believe that to be right. I believe that to be the same sort of question as arises when the House of Lords decides whether it is going to give leave because what I believe has happened is the criteria which in the old days governed only the House of Lords, except in interlocutory matters, and has been shifted downwards to the Court of Appeal, and what that section is about is questions of law of public importance or statutory interpretation, matters of that kind. I doubt that it has a bearing on a case whose facts happen to be or to raise matters of public importance, questions of public importance. For all that, in any event ----

MR JUSTICE GRAY: That may be right.

MR RAMPTON: I feel that that is right, but beyond that I say, given that this is a case of some considerable public importance, nevertheless, the judgment is so clear and so closely confined to matters of fact and interpretation, that really this is a case where the Court of Appeal should decide whether it wants to hear from Mr Irving.

MR JUSTICE GRAY: Mr Irving, do you want to say any more?

MR IRVING: My Lord, I was about to raise the public interest issue because that was very much in the front of my mind. If I were to narrow it down and say that I am strictly concerned with the 19 instances that you have ventilated in your judgment, in some of those instances you have found that I have not manipulated or distorted or mistranslated, I am deeply concerned about the other instances, of course, for the reasons of my reputation. My appeal would however largely like a vulture over those elements of your Lordship's judgment.

MR JUSTICE GRAY: I totally accept that this is a very important judgment for you personally, that is often the way, of course, with litigation, but it also does have a public interest element.

But what I am going to do is to refuse permission, but I refuse it, making clear that I certainly see that this could be the kind of case where the public interest is so high that the Court of Appeal might decide that it wants to hear the appeal, despite the fact that it is mainly concerned with questions of pure fact.

But I am refusing permission principally on the basis that I think it is right, having regard to the scale and dimensions of the case, that it should be the Court of Appeal that decides, rather than me, whether permission should be granted. You can go to the Court of Appeal and you can ask them and I am not discouraging you from doing so at all.

MR IRVING: My Lord, I am indebted to you for this ruling, but may I, therefore, ask that I should be given slightly longer than would normally permitted to make such an application because, obviously, as a litigant in person, I now have to regroup my forces and gather my strength for this. It has been a very strenuous ordeal so far already. To have to prepare a further stage will take longer than if I were like an accomplished firm like Mishcon or Davenport with all resources that are behind them.

MR JUSTICE GRAY: Yes. What I would suggest you do is you lodge your application, which I think is a relatively straightforward step, within the time provided by the rules. That will not require you, I think, to set out your detailed reasons, that can come later, but I think you ought to be in time with your application ----


MR JUSTICE GRAY: --- even if you have to ask for further time from the Court of Appeal for the supply of your reasons for asking for permission. Is there anything else?

MR RAMPTON: No. There is nothing else, so far as we are concerned.


(The court adjourned)

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