IRVING v PENGUIN BOOKS
I much regret the length of time that it has taken me to come to this
decision, not least in view of the pressure that I put on the parties
to submit their representations expeditiously. Reaching a conclusion on
the application has been the work of days, not of hours.
I am prepared to enlarge time on the basis of Mr. Adams'
affidavit of 16 May 2000 and to permit amendment of the notice of appeal
What follow are my essential reasons for refusing permission to appeal.
They do not cover every element advanced and contested although I have
read and re-read both the submissions and the judgment. They address what
I consider to be the key issues. I bear in mind, as Gray J very clearly
did, that when a professional historian claims, correctly, that he has
been defamed as a falsifier and a bigot, a defence of justification places
a heavy burden on the defendant who advances it. There is much about which
two people can legitimately differ, and differ angrily, without either
of them meriting such a description. But by bringing this action on the
pleaded meanings the applicant offered a challenge, and in Gray J's judgment
the defendants met it.
I accept that this court is probably as well placed as Gray J to evaluate
the documents and the expert evidence, What it cannot do, and is not asked
to do, is to ignore or modify the judge's appraisal of the applicant himself.
This is not, as the grounds suggest, peripheral. As Gray J in Chapter
XIII shows with clarity, the applicant's disposition is the cement between
the bricks. What might in another historian have been casual misreadings
of evidence emerge in the applicant's case as sedulous misinterpretations
all going in the direction of his racial and ideological leanings. Hence
the verdict for the defendants. "Holocaust denial" may be a
comprehensible phrase, but it has a particular register about which the
judge was entitled to hear expert evidence. With or without such evidence
the meaning he assigned to the phrase at J 8.3-4 was plainly right. Holocaust
denial means not necessarily a blank refusal to acknowledge a Nazi policy
of mass murder of Jews and other minorities but a systematic endeavour,
by marginalising and excusing what happened, to accuse those who insist
upon it of being Zionist propagandists. This is not the law's concern
so long as it stops short of incitement to racial hatred: in the UK there
is no law against Holocaust denial, and it is a fundamental liberty not
only to be contentious but to be wrong. I bear in mind too that anti-Zionism
and anti-semitism are not necessarily the same thing.
Here, however, the applicant has invoked the law by suing
hisantagonists. In justifying their libel, the defendants have focused
upon two particular forms of Holocaust denial in his work: what I will
call the aberration theory, predicated on Hitler's ignorance of and/or
opposition to mass extermination of Jews, and the exaggeration theory,
predicated on deliberate inflation of the numbers killed at Auschwitz.
The first, they say, seeks to excuse what happened; the second to marginalise
The Schlegelberger memorandum is the applicant's preferred
evidence for the aberration theory. The memorandum by itself (see J 5.151-169)
might have stood simply as an example of a controversial document about
which honest historians could differ - indeed the judge said so (J 13.36).
But the applicant's adherence to it as a "diamond document"
came in the context of a damning and justifiable finding (J 13.26-31)
that he had repeatedly misrepresented documentary evidence in order to
absolve Hitler of anti-semitism; and it is against the backdrop of this
ubiquitous handling of Third Reich material that the applicant's use of
the document emerges as part of a predetermined misreading of evidence
which could not, as the judge found, be objectively justified.
The Auschwitz materials are central to the exaggeration theory. Here too
the historical record is inevitably incomplete and in places unreliable;
but here too the applicant has been betrayed by his own method, notably
his reliance on the discredited Leuchter report. The judgment (J 8.17)
sets out the solidity of the applicant's denial of mass homicide at Auschwitz,
and sets in that context his recent focus on the "holes in the roof"
issue (J 13.81-3). I accept readily that the latter argument may be none
the worse for coming late in the day; but the evidence that there were
no holes for the admission of cyanide pellets is at best inconclusive
against the potent evidence that people were gassed there in tens of thousands.
The controversy about methods and numbers may legitimately remain; but
what the applicant has done is demonstrate once again his willingness
to sacrifice objectivity in favour of anything which will support his
chosen form of Holocaust denial.
Van Pelt's evidence enters into this aspect of the judgment. Van Pelt
was heard as a cultural historian with a special knowledge of Auschwitz
and its architecture (J 4.17(ii). G 30). What he said (J 7.123-4) about
the use of Zyklon-B was in part arithmetic and in part comment: probably
it was not necessary to have an expert of any kind to put this forward,
but its acceptance by Gray J was a matter of logic and did not depend
on any expertise professed by Van Pelt.
In these circumstances the applicability of s.5 of the Defamation Act
I 952 was in essence a jury question: were the false allegations that
the applicant had agreed to share a platform with terrorists, had a self-portrait
of Hitler above his desk and had misappropriated archive material sufficient
to damage the reputation which was now his? The negative answer given
by Gray J was entirely open to him, and that, I apprehend, is enough.
If, however, this court were to take the decision for itself, I see no
realistic prospect of its arriving at a different answer. The claimant
had played for high stakes on the central issue of his entitlement to
be regarded as a genuine historian and had lost on grounds so damaging
that they left no real room for discrete damage by the unfounded allegations.
The experts' fees may be thought high - depending on how much work they
did - but the suggestion that they were paid to testify as they did is
without visible foundation.
If a newspaper comments impermissibly on a current trial the Attorney
General has power to bring contempt proceedings against it. But where
the trial is by judge alone it takes cogent evidence to establish a sufficient
risk that he has been influenced -- especially when the suggestion is
that he has been driven by a fear of adverse press comment. I know of
nothing in the present case which comes near this threshold.
The stay on enforcement of the costs order will remain in place until
the expiry of the time for renewal of this application. If within that
time it is renewed, any application for further prolongation of the stay
is to be made on notice.
Sedley L J
18 xii 2000