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As frequently happens, the litigation in the case of Irving v. Lipstadt and Penguin Books Ltd. did not end when Charles Gray, Judge of the Queen's Bench, announced his decision on April 11, 2000. At that time Judge Gray found that the statements written by Dr. Deborah Lipstadt in Denying the Holocaust and published in Great Britain by Penguin Books, Ltd. were, even if defamatory under British law, justified in that they were true and correct. In a subsequent Order, on May 5, 2000, Judge Gray held that, pursuant to British law, David Irving was responsible for legal fees incurred by the defendants and ordered him to make an interim payment of [Pounds Sterling] 150,000 to Penguin Books, Ltd. as a partial payment of legal fees. David Irving attempted to appeal from the decision of the trial court.

After Judge Gray denied Irving permission to appeal, Irving asked the High Court of Appeals to review his case anyway. On December 18,2000, Lord Justice Sedley issued a devastating decision in which he endorsed Judge Gray's decision and refused Irving's request. Irving then asked that Lord Justice Sedley's decision be reviewed by a three judge panel. Irving claimed "that the findings of justification in respect of the defamatory charges on which the Defendants succeeded were against the weight of the evidence." Additionally Irving insisted that Judge Gray had erred as a matter of law in allowing Prof. Richard Evans and Prof. Robert Jan van Pelt to testify as experts during the trial.

Prior to the oral argument, which began on June 20,2001, Irving filed two affidavits with the court to support Irving's contention that he could demonstrate that Judge Gray's decision was contrary to the weight of the evidence. The first of these was an affidavit from Mrs. Zoe Polanksa-Palmer, a prisoner at Auschwitz, who claimed to have been a prisoner in the Birkenau camp at Auschwitz and had never seen any gas chambers. The second was a long document from Germar Rudolf, a German national trained as a chemist. Setting forth an argument that there were no gas chambers at Auschwitz. Rudolf had previously volunteered as an expert witness at the trial of this case; David Irving had declined Rudolf's offer. Rudolf's statement can be divided into three main sections. The first was an extended recapitulation and summary of the arguments used by deniers of the Holocaust to challenge the existence of the gas chambers at Auschwitz. The document also included summaries of testimony concerning the gas chambers at Auschwitz adduced in other litigation and Rudolf's comments on it and an extended history of Rudolf's "persecution" as a result of his denial of the Holocaust. It was, in summary, a comprehensive statement of the arguments made by those who deny that mass murder took place in the gas chambers of Auschwitz.

In response to these two affidavits, the defense prepared several reports by experts. The first of these was a report from Harry Mazal, O.B.E. challenging the credibility of Mrs. Polanska-Palmer. Mazal demonstrated that, on previous occasions including her autobiography, Mrs. Polanska-Palmer had written that when she was a prisoner in the main camp at Auschwitz the existence of the gas chambers was well known to her.

The other two expert statements were related to our current state of knowledge about the mass murder at Auschwitz. The first of these is a report prepared by Prof. Robert Jan Van Pelt. In addition to a detailed refutation of Rudolf's arguments, Dr. van Pelt summarizes the evidence for the gas chambers of Auschwitz. This includes two appendices setting forth evidence which had not been available at the time of the trial. This included an examination of the ruins of Crema II at Auschwitz identifying the holes on the roof of Crema II where poison gas had been introduced and the other digital analysis of contemporary photographic evidence. At the trial of this matter Irving had claimed that these holes did not exist. The second was authored by Richard Green, Ph.D., exploring the chemistry of the mass murders at Auschwitz and exposing the scientific mistakes Rudolf made in his report.

All of these documents were filed with the court prior to the hearing. All of these reports were made available to David Irving prior to the hearing.

The hearing on Irving's petition for permission to appeal lasted for four days. During his oral argument David Irving - without notice to either the court or the opposing parties and without any explanation whatsoever - withdrew both of the documents he had previously filed with the Court and abandoned his attempt to introduce more evidence about the Holocaust.

The final judgment of the Court was announced on July 20, 2001. Lord Justice Pill, in rejecting Irving permission to appeal enthusiastically adopted the written opinion of the trial court stating: " The judgment of Gray J can only be admired for its comprehensiveness and style." Lord Justice Pill did not ignore the two documents that Irving withdrew so suddenly or the response we are publishing here:

We also mention at this point that there were before the Court two applications to call fresh evidence in support of the application. The first, made well before the hearing, was to call evidence from Mr. Germar Scheerer (born Rudolf), who holds a diploma in chemistry, and Mrs. Zoe Polanska-Palmer, who was detained in Birkenau Camp. The respondents had prepared voluminous evidence in reply. In the event, that application to call fresh evidence was not pursued. We express our dismay at this combination of events; the preparation of very detailed evidence (exposing the respondents to great expense in preparing a reply and the members of the Court to considerable pre-hearing reading) and the withdrawal of the application.

The reports filed by the defense are far more than a detailed refutation of the arguments currently being made by those who deny the Holocaust. These reports demonstrate the unreliable statements, faulty science, and distorted history that lie behind the claims that the Holocaust did not happen. At the same time they are an excellent starting point for examining the state of our knowledge about Auschwitz. Prof. van Pelt sets forth the irrefutable evidence clearly and concisely directing the reader to the specific source material which support his arguments. The Holocaust History Project is proud to make these available to the public at: http://www.holocaust-history.org/irving-david/vanpelt

In May, 2002, as a result of his failure to pay a single penny to compensate Penguin Books, Ltd., and Prof. Deborah Lipstadt for the legal expenses they incurred in defending the frivolous lawsuit brought against them, David Irving was declared a bankrupt in the British courts. As a result the decision of Judge Gray was, once more, sustained and David Irving's apartment and property were seized by his creditors to pay his lawful debts.




Last modified: September 3, 2002
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