A reasoned judgment
Courtroom 36 is the largest in the Royal Courts of Justice, and it is here, at 10:30 on the morning of April 11, that judgment is handed down in the case of David Irving versus Penguin Books Ltd. and Deborah Lipstadt. Unlike the trial’s previous venues, Courtroom 36 is unmodernized. Its high, coffered ceilings, wood-paneled walls, and tall, gothic, stone windows lend an almost ecclesiastical tone to the trial’s last scene—an effect enhanced by the choir loft at the rear, its three rows of seats now filled with reporters and a very few members of the general public. Outside the rain is pelting down, and the court benches are once again piled high with sodden coats.
On one side of the room Deborah Lipstadt, wearing a somber black suit and white blouse, sits chatting with Anthony Forbes-Watson. Heather Rogers, Richard Rampton, and Anthony Julius are behind them. On the other side the more favored members of the press crowd into the jury box, with the considerable overflow filling most of the scarred wooden benches below the choir loft. At precisely 10:29 David Irving pushes through the double doors and makes his way to his seat near the jury box. Irving is jacketless, his blue-and-white striped shirt and blue-and-yellow striped tie partially covered by a grey, chalk-striped waistcoat with a red silk back. This departure from his usual costume is not, it turns out, an attempt to emphasize his status as a “shirtsleeves historian” but the result of an encounter with egg-throwing hecklers outside the building.
The phalanx of law books and loose-leaf binders that lined Irving’s desk during the trial are gone, and after exchanging a few words with Rae West, the portly, chronically unshaven man who runs his website, Irving sits with his elbows on the empty table, his hands folded, his chin resting on his hands. It is not the posture of a man who expects good news.
The judge’s clerk passes out extracts of his judgment, and like impatient schoolboys we turn to the last page: “In the result therefore, the defense of justification succeeds.” But under the heading “VERDICT” the space is left blank.
Once Charles Gray begins to speak, however, any lingering suspense is soon dispelled. He begins with one more half-hearted effort to keep history in its place: “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.” This is followed by an immediate concession: “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 a historian in the light of the available historical evidence.” Yet Gray insists, “It is not for me to form, still less to express, a judgment about what happened. That is a task for historians.”
Those are the last confusing words Gray utters. For the next two hours, as he continues to read out portions of his 333-page decision, Gray’s low, lugubrious voice delivers a judgment that is broad in scope, closely reasoned, clearly argued—and absolutely devastating to David Irving.
At times, the judge’s language is surprisingly blunt: Irving’s claim, he says, “is that he is the victim of an international Jewish conspiracy determined to silence him.” Though this is exactly what Irving claimed, his own tact—and Rampton’s objections—meant that the question was seldom posed so openly at the trial.
Acknowledging these objections, Gray explains “the latitude which I allowed Irving in developing this theme. They [the defense] contend, correctly, that in the ordinary run of litigation, the rules of evidence would have prevented him advancing any such case. However, for a number of reasons, I thought it right not to take too strict a line. Irving has represented himself throughout (demonstrating, if I may say so, very considerable ability and showing commendable restraint). This has not been a trial where it has been possible or appropriate to observe strict rules of evidence. Furthermore Irving has been greatly hampered in presenting this aspect of his case by the unexpected decision of the Defendants, in full knowledge of the allegations which Irving was making about the conduct of Lipstadt, not to call her to give evidence and to be cross-examined by Irving. It goes without saying that the Defendants were perfectly entitled to adopt this tactic but it did place Irving, acting in person, at a disadvantage.”
Gray says that in order to prove a conspiracy, Irving had to show that both Defendants were implicated. He finds that “on the evidence of the contents of the book itself, I accept that it does indeed represent a deliberate attack on Irving, mounted in order to discredit him as a historian and so to undermine any credence which might otherwise be given to his denials of the Holocaust.” But Irving failed to show that Penguin bore him particular hostility. Besides, says Gray, Lipstadt’s intentions only become a factor in assessing damages.
Irving has argued that owing to the seriousness of the allegations against him, “a higher standard of proof should be applied” than a simple balance of probabilities. Gray agrees. As the judge reads on, however, even this small victory soon turns hollow.
In 245 paragraphs Gray lays out the evidence concerning Irving’s treatment of historical evidence. Scrupulously even-handed, he takes each disputed topic—from Hitler’s 1924 trial, Kristallnacht, and the shooting of the Jews in Riga to the Schlegelberger note, Hitler’s meeting with Horthy and the confessions of Hans* Aumeier—in turn, first summarizing the defense case and then giving Irving’s response. This is followed by another 133 paragraphs doing the same for Hitler’s attitude toward the Jews and his involvement in the Final Solution. Here again, Gray is heroically faithful to both the evidence heard in court and to the historical record: “The Defendants recognize,” he writes, “that the documentary evidence for implicating Hitler in any policy for the systematic shooting of Jews is sparse. There is no ‘smoking gun.’ A large number of documents were destroyed, many of them on the orders of Heydrich, so the documentary picture is a partial one. However, the Defendants do highlight a number of documents which, they contend, point, albeit not unambiguously, to Hitler’s complicity.”
He turns next to Auschwitz, in doing so abandoning the charade of keeping history outside the courtroom: “The overall question which I have to decide is whether the available evidence, considered in its totality, would convince any objective and reasonable historian that Auschwitz was not merely one of the many concentration or labor camps established by the Nazi regime but that it also served as a death or extermination camp, where hundreds of thousands of Jews were systematically put to death in gas chambers over the period from late 1941 until 1944.”
Holocaust denial, Irving’s racism and anti-Semitism, the charge that he associates with right-wing extremists, his description of the bombing of Dresden and his conduct in obtaining the Goebbels diaries—each area of contention comes in for the same painstaking dissection, with each assertion and its contrary neatly separated into discrete paragraphs and laid out for consideration. When definitions are called for, Gray supplies them, although in the case of Holocaust denial, he quotes Evans on the deniers’ credo:
(i) that Jews were not killed in gas chambers or at least not on any significant scale;
(ii) that the Nazis had no policy and made no systematic attempt to exterminate European Jewry and that such deaths as did occur were the consequence of individual excesses unauthorised at senior level;
(iii) that the number of Jews murdered did not run into millions and that the true death toll was far lower;
(iv) that the Holocaust is largely or entirely a myth invented during the war by Allied propagandists and sustained after the war by Jews in order to obtain financial support for the newly-created state of Israel.
Here again, the pretense that Gray’s dilemma is anything but historical is quietly laid aside: “It is necessary also to consider whether and, if so, to what extent, what Irving has said and written is consistent with or borne out by the available historical evidence. For, as the Defendants accept, there can be no valid criticism of Irving for denying that a particular event occurred unless it is shown that a competent and conscientious historian would appreciate that such a denial is to a greater or lesser extent contrary to the available historical evidence.”
More than three-quarters of the way through his judgment Gray still hasn’t said a word about how he sees the evidence. But as he arrives at section 13, “Findings on Justification,” Irving, who got the decision last night and knows what’s coming, sits up in his chair as if to brace himself.
His ordeal begins with an encomium: “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 Two 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 favorable assessment by Professor Watt and Sir John Keegan of the caliber of Irving’s military history . . . and reject as too sweeping the negative assessment of Evans.”
At this Irving squeezes out a brief smile, but his triumph over Evans is extremely short-lived. “The questions to which this action has given rise do not relate to the quality of Irving’s military history,” says Gray. What matters instead is Irving’s integrity as a writer and presenter of historical evidence, and here the judge finds Evans’s devastating appraisal completely persuasive: “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.”
Irving’s attempt to divert the blame for Kristallnacht from Hitler to Goebbels “is at odds with the documentary evidence.” His account of Himmler’s November telephone call regarding the train load of Berlin Jews is “in error” and there is “no evidence” for his attribution of the call to Hitler’s intervention. “Whilst I accept that a historian is entitled to speculate,” says Gray, “he must spell out clearly to the reader when he is speculating rather than reciting established facts.”
The judge finds that Irving’s treatment of Hitler’s responsibility for the destruction of the Jews has “a distinct air of unreality.” On the Schlegelberger Memorandum, though Irving’s arguments “are worthy of consideration,” the judge finds his eagerness to present the document as incontrovertible evidence both unseemly and unwarranted.
As for his account of Hitler’s meetings with the Hungarian Regent, “In my judgment,” says Gray, “Irving materially perverts the evidence of what passed between the Nazis and Horthy.” Item by item Gray weighs Irving’s historical judgment in the balance and finds it wanting. But he hasn’t yet said whether these distortions were conscious and deliberate.
Instead, the judge again turns to Auschwitz: “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.”
Gray says he recognizes “the force of many of Irving’s comments” about the evidence for the gas chambers, such as thinness of the documentary record and the paucity of references to the use of gas, many of which might well be explained by the incidence of typhus. He also accepts that the aerial photographs which the defense claimed showed the holes in the roof of Crematorium 3 are “hard to interpret.” He even grants that Irving “had some valid comments to make” about the eyewitness testimony, pointing out instances where the evidence was either obviously mistaken or exaggerated. Irving “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.”
Without sweeping these inconsistencies aside, Gray remarks that “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, [Sonderkommando Henryk] 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 Olère’s drawings. The evidence of other eye-witnesses, such as Höss and Broad, would in my view appear credible to a dispassionate student of Auschwitz.
“My conclusion,” said the judge, “is that the various categories of evidence do ‘converge’ in the manner suggested by the Defendants. . . . 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.”
Though Irving has already lost on historiography and Auschwitz, the worst is yet to come. So far the judge has referred only to Irving’s claims, not his motivation. He follows a similar line in finding, in the fastidious language of the judgment, “that the statements made by Irving which are apostrophized by the Defendants as Holocaust denials are false” and that “Irving’s denials of these propositions were contrary to the evidence.”
Not until he gets to Irving’s anti-Semitism does the judge allow a note of anything stronger than regret into his voice. Referring to the anthology of offensive quotations prepared by the defense, Gray says “It appears to me to be undeniable that . . . in the absence of any excuse or suitable explanation for what he said or wrote, Irving is anti-Semitic. His words are directed against Jews, either individually or collectively, in the sense that they are by turns hostile, critical, offensive and derisory in their references to Semitic people, their characteristics and appearances.” In one case Irving claimed his remarks were intended as a joke; if so, says Gray, “it was an anti-Semitic joke.
“I have more sympathy,” he continues, “for Irving’s argument that Jews are not immune from his criticism. . . . Irving gave as an example what he claimed was his justified criticism of the Jews for suppressing his freedom of expression. Another legitimate ground of criticism might be the manner in which Jews in certain parts of the world appear to exploit the Holocaust. I agree that Jews are as open to criticism as anyone else. But it appears to me that Irving has repeatedly crossed the divide between legitimate criticism and prejudiced vilification of the Jewish race and people. The inference which in my judgment is clearly to be drawn from what Irving has said and written is that he is anti-Semitic.”
By now Irving has slumped down into his chair, and glares at Gray under half-closed eyelids. “I have concluded,” the judge goes on, “that the allegation that Irving is a racist is also established for broadly analogous reasons.”
Gray expresses some reservations about Hajo Funke, whose report, he says, “made reference to a bewildering array of organizations and individuals. . . . But Irving’s association with many of those organizations is tenuous to say the least. I am satisfied that Irving has had no significant association with a great many of them. The same applies to the individuals named by Funke.” Nevertheless the judge, citing the disputed Halle video as evidence of “Irving’s willingness to participate in a meeting at which a motley collection of militant neo-Nazis were also present” and his regular contacts with Zündel, Faurisson, the National Alliance and a handful of German extremists, finds “in my judgment that Irving shares many of their political beliefs.”
There is one ray of consolation for Irving when the judge finds the Defendants have failed to prove he broke an agreement with the Moscow archives. He also rules they haven’t proved Irving’s handling of the glass plates containing the Goebbels diary exposed them to any undue risk.
But there is nothing at all comforting to Irving when the judge returns to what he calls “the central issue of Irving’s historiography,” namely whether “he has deliberately falsified and distorted the historical evidence.” This is not a question of Irving’s competence, but his integrity. And here again the judge leaves no room for doubt:
“Certain of Irving’s misrepresentations of the historical evidence might appear to be simple mistakes on his part. . . . 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.”
After giving a series of examples, Gray takes up the various concessions Irving made—and then retracted—during the trial. “What is the significance of these alterations . . . in relation to . . . Irving’s motivation?” The judge concludes that Irving’s apparent willingness to concede when confronted with the evidence suggests he knew the falsity of his position all along, while his subsequent retractions “manifest . . . a determination to adhere to his preferred version of history, even if the evidence does not support it.
“It is not difficult to discern a pattern,” says Gray summing up his findings: “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.”
He concludes: “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.”
Though the defense haven’t proved every part of their case, the judge rules that what they haven’t proved—Irving’s conduct in the Moscow archives, the portrait of Hitler alleged to hang over his desk—is covered by section 5 of the 1952 Defamation Act, which provides “in respect of words containing two or more distinct charges against the [claimant], a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the [claimant’s] reputation having regard to the truth of the remaining charges.”
“In my judgment,” says Gray, “the charges against Irving which have been proved to be true are of sufficient gravity [that the remaining charges would] . . . not have any material effect on Irving’s reputation. In the result therefore, the defense of justification succeeds.”
Gray fills in the final blank: “It follows that there must be judgment for the Defendants.”
At this Irving rises: “My Lord, on the issue of costs. I think there should be a hearing on the issue of costs.”
Having won on every significant issue—and in the clearest and most convincing terms imaginable—no one on the defense side rises to object. But as he grants the motion, Gray warns Irving: “The defense are going to have the bulk of their costs.” And when Irving also asks Gray’s permission to appeal his verdict (which would virtually guarantee review by a higher court), the judge refuses.
Still digesting the magnitude of his defeat, Irving gathers up his soiled jacket and leaves the court through a back entrance. Responding to a reporter’s shouted question he describes the judgment as “perverse” but otherwise offers no immediate comment.
The Defendants have hired a room at a nearby hotel for a press conference that quickly becomes a victory celebration. Now free to speak to the press, Lipstadt reads from a brief statement: “I am very pleased that what I wrote has been vindicated.” As she continues, thanking “Penguin and Pearson for standing with me shoulder to shoulder through this process,” Penguin publicity representatives fan out through the room passing out copies of a press pack containing profiles of Lipstadt, her lawyers, Penguin executives, Penguin’s lawyers, and a seven-page “Essence of the Judgment.” There is also a glossy photo of Lipstadt, a copy of Rampton’s opening statement, and a statement by Penguin, which Anthony Forbes-Watson now reads.
“This has been a hugely expensive case and whilst we will take active steps to recover our costs, we will certainly be left significantly out of pocket.”
Pressed for a figure, Forbes-Watson estimates the trial has cost Penguin about £2 million. When a Canadian reporter asks if the certainty that Penguin won’t ever recover the bulk of its costs doesn’t represent a victory of sorts for Irving—on the supposition that the next publisher, faced with a winnable but ultimately costly case will decide not to go ahead—Forbes-Watson disagrees. “Sometimes principles override financial considerations,” he says, and though the reporter is tactless enough to wonder whether Pearson’s shareholders will agree, the questions quickly shift back to Lipstadt.
Like Irving, the defense lawyers had been given a text of the judge’s decision the night before. But Lipstadt herself only learned of her triumph a half-hour before the judge began speaking. “What went through my mind was a moment of intense joy, gratitude,” she said.
As for her opponent, “I’m not sure whether he shouldn’t be allowed [in the United States],” she says confusingly. But when the next questioner solicits Lipstadt’s support for the campaign to make Holocaust denial illegal in Britain, she declines: “I don’t think those laws really work. I think sometimes they tend to make martyrs of deniers.”
Nor does she think the judge’s decision is likely to be the last word. “There is no end,” she says, “to the fight against racism, anti-Semitism, and hatred.” And if the judge, though completely vindicating her characterization of Irving, seemed nonetheless reluctant to adopt Lipstadt’s terminology, using the phrase “Holocaust denial” only either in quotes or when attributed to Lipstadt or her lawyers, she has no intention of complaining. Besides, she says, “I’m writing a book on this trial; this is not the only time I’m going to have my say.”
David Irving’s silence doesn’t last very long. On the way into court that morning Irving, who already knew he’d lost, told a correspondent for the Washington Post that in the long run he thought his reputation would be enhanced by the trial. He’d said much the same thing to me a few weeks earlier. By 10 o’clock on the evening of his defeat Irving has appeared on Australian television, the Today program, and Newsnight, and in countless radio interviews. On the following day the cycle continues, including a radio debate with Alan Dershowitz in the United States.
Though editorial response in Britain is uniformly hostile to Irving, the Daily Telegraph prints an article by John Keegan declaring that Irving’s loss “will send a tremor through the community of 20th century historians.” Despite their differences over Hitler’s involvement in the Holocaust, Keegan says that Irving has “many of the qualities of the most creative historians. He is certainly never dull.” Keegan concludes with a sniff at Lipstadt, “dull as only the self-righteously politically correct can be. Few other historians had ever heard of her before this case. Most will not want to hear from her again. Mr. Irving, if he will only learn from this case, still has much that is interesting to tell us.”1
At the end of closing arguments, the judge asked Irving, who’d been nodding in agreement to Rampton’s request for advance notice of his decision, “You are going to forfeit the last word, are you?” That, clearly, was a forlorn hope.