David Irving v Penguin Books and Deborah Lipstadt/IV
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IV. THE DEFENCE OF JUSTIFICATION: AN OVERVIEW
The parties’ statements of case
4.1 Irving having established, as I have found, that Denying the Holocaust contains passages which are defamatory of him, it is necessary for the Defendants, if they are to avoid liability, to establish a defence. The burden of doing so rests, under the English system of law, upon the Defendants.
4.2 The substantive defence relied on by both Defendants is justification, that is, that in their natural and ordinary meaning the passages of which Mr Irving complains are substantially true. I have already recited, in section II above, the so-called Lucas-Box27 meanings or propositions the truth of which the Defendants seek to establish in order to make good their defences of justification.
4.3 As practice requires the Defendants also set out in their formal statement of case, served in February 1997, the detailed particulars on which they rely in support of their defence of justification. In November 1999 the Defendants served a revised document entitled Defendants’ Summary of Case. This document comprehensively rearranges, supplements and in some cases abandons the particulars previously served. Irving has, in my view sensibly, raised no objection to this recasting of the Defendants’ case of justification.
4.4 It is to be noted that in the particulars of their case of justification the Defendants do not confine themselves to the specific assertions made by Lipstadt in her book. To give but one example: no mention is made in Denying the Holocaust of the bombing of Dresden by the Allies in 1945. Yet section 5 of the Defendants’ Summary of Case contains detailed particulars on that topic criticising Irving’s treatment of the subject in his book Apocalypse 1945: the Destruction of Dresden. No objection has been taken or, in my judgment, could be taken to this course since the Defendants are entitled28 to rely on Irving’s account of the bombing of Dresden in support of their contention that he falsifies data and misrepresents evidence. The same applies to other matters raised by the Defendants in their Summary of Case which are not mentioned in Denying the Holocaust.
4.5 For his part Irving has, in compliance with the rules, set out in summary form in his Replies to the Defences of the Defendants his answer to the allegations and criticisms advanced by the Defendants in justification of what was published. In October 1999 the Defendants sought from Irving answers to a series of detailed requests for further information about his case. Unfortunately most of those requests went unanswered. In the result much of Irving’s case in rebuttal of the defence of justification emerged in the course of his evidence at trial and in the course of his cross-examination of the witnesses called by the Defendants. The Defendants, in my view rightly, felt themselves unable to object.
4.6 The Replies also include an allegation of malice against both Defendants, apparently introduced in the mistaken belief that they were relying also upon the defence of fair comment on a matter of public interest. Malice may nonetheless be relevant to the issue of damages, if that arises.
What has to be proved in order for the defence of justification to succeed
4.7 As I have already mentioned, the burden of proving the defence of justification rests upon the publishers. Defamatory words are presumed under English law to be untrue. It is not incumbent on defendants to prove the truth of every detail of the defamatory words published: what has to be proved is the substantial truth of the defamatory imputations published about the claimant. As it is sometimes expressed, what must be proved is the truth of the sting of the defamatory charges made.29
4.8 Section 5 of the Defamation Act, 1952 provides:
Justification. In an action for libel … 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.
It may accordingly be necessary, in a case like the present where a number of defamatory imputations are the subject of complaint, to consider whether such imputations (if any) as the Defendants have failed to prove to be true materially injure the reputation of the claimant in the light of those imputations against him which have been proved to be true.
4.9 The contention for the Defendants is that they have proved the substantial truth of what was published, so that the defence of justification succeeds without the need for resort to section 5. Irving, however, points out that there are imputations which the Defendants made in the book which they have not sought to prove to be true. The principal such imputation is that Irving agreed to participate in a conference at which representatives of violent and extremist groups such as Hezbollah were due to speak. Irving contends that this defamatory imputation is so serious that the Defendants’ failure to prove it or even to attempt to prove it is fatal to their plea of justification. The Defendants on the other hand argue that by virtue of section 5 of the 1952 Act their defence of justification should succeed notwithstanding their failure to prove the truth of this imputation because, relative to the other serious imputations which they maintain they have proved to be true, it has no significant deleterious effect on the reputation of Irving.
4.10 The standard of proof in civil cases is normally that parties must prove their claims or defences, as the case may be, on the balance of probabilities. In the present case Irving argued, however, that, since the imputations against him were so grave, a higher standard of proof should be applied to the case of the justification advanced by the Defendants. There is a line of authority which establishes that, whilst the standard of proof remains the civil standard, the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability30. I will adopt that approach when deciding if the truth of the defamatory imputations made against Irving has been established.
Pattern of the judgment on the issue of justification
4.11 It is convenient, in order that the pattern of the succeeding sections of this judgment is clear, that at this stage I explain how I propose to deal with the matters raised by the defence by way of justification. For the most part they relate to the period of the Third Reich. In geographical terms the events with which it is necessary to deal are centred on Berlin but they extend to most of the countries conquered by the Nazis. The Defendants rely in addition on the publications, utterances and conduct of Irving over the last thirty years. The number of documents involved is huge. The volume of evidence, mostly expert evidence, is massive. In these circumstances it has proved necessary, for purely practical reasons, to divide up the allegations made by the Defendants into a series of separate headings.
4.12 In the next eight sections of this judgment I shall attempt to summarise in some detail the arguments deployed by the parties in relation to the allegations made under those headings. I shall not attempt to rehearse each and every point taken in the reports submitted by the Defendants’ experts. Some of the criticisms made of Irving’s historiography appear rather pedantic. In any case both sides have agreed that I should confine myself to the issues which have been ventilated by one side or the other in cross-examination. Whilst I will deal with the Defendants’ case on justification under the separate headings which I have mentioned, it is important to note that it is an essential feature of the Defendants’ case that the allegations on which they rely overlap and (as the Defendants put it) converge, thus providing the foundation of their defence of justification.
4.13 Having summarised the parties’ rival contentions, I shall then in a separate section of the judgement set out my conclusions on the central issue whether or not the defence of justification succeeds.
Evidence adduced in relation to the issue of justification
4.14 Before setting out the arguments and evidence, I will identify the witnesses whose evidence was tendered on each side in relation to the defence of justification.
4.15 I start with the evidence for the Defendants. As I have already said, Professor Lipstadt did not give evidence (although a witness statement from her had been served).
4.16 The only witness of fact for the Defendants was Ms Rebecca Guttman who is employed by the American Jewish Committee as an executive assistant. Her statement, admitted under the Civil Evidence Act, related to an event arranged by an allegedly right-wing organisation in the US with which Irving is said to have connections.
4.17 The main corpus of evidence for the Defendants was provided by academic historians whose evidence was by consent admitted as expert evidence. Written and oral evidence was submitted by the following:
(i) Professor Richard Evans, who is Professor of Modern History at the University of Cambridge and has written many historical works about Germany. He gave evidence principally about Irving’s historiography, his exculpation of Hitler and hiis denial of the Holocaust.
(ii) Professor Robert Jan van Pelt, who is a Professor of Architecture in the School of Architecture, University of Waterloo in Canada. Professor van Pelt is an acknowledged authority on Auschwitz, about which he has written extensively, and this was the subject of his evidence.
(iii) Professor Christopher Browning, who is a Professor of History at Pacific Lutheran University, Tacoma, Washington. He gave evidence on the evidence about the implementation of the Final Solution, covering the shooting of Jews and others in the East and the gassing of Jews in death camps (apart from Auschwitz).
(iv) Dr Peter Longerich, who is Reader in the Department of German at the Royal Holloway College, University of London and a specialist in the Nazi era. He gave evidence of Hitler’s role in the persecution of the Jews under the Nazi regime and of the systematic character of the Nazi policy for the extermination of the Jews.
(v) Professor Hajo Funke, who is Professor of Political Science at the Free University of Berlin. He gave evidence of Irving’s alleged association with right-wing and neo-Nazi groups and individuals in Germany.
The reports submitted by these experts ran to a total of more than two thousand pages
4.18 Not unnaturally (since it is his views and his conduct as an historian which are being attacked by the Defendants) evidence in rebuttal of the case of the Defendants on justification came predominantly from Irving himself. The course which was taken with his evidence was as follows: he submitted a brief witness statement, which did not address the majority of the particulars relied on by the Defendants in support of their plea of justification. He provided some elaboration of his response to that plea in the course of his opening and in the course of answers to my questions. But it was mainly in the course of his answers in cross-examination and his cross-examination of the Defendants’ witnesses that the detail of his case emerged.
4.19 In support of his denial of the allegation that he broke an agreement in relation to the microfiches in the Moscow archive containing the diaries of Goebbels, Irving called Peter Millar, a freelance journalist, who at the time of the discovery of those diaries in 1992 was acting for The Sunday Times.
4.20 Irving summoned to give evidence on his behalf two historians who were unwilling to testify voluntarily. Their evidence was directed primarily to the question of Irving’s standing as an historian (in which connection I have already mentioned them) rather than to the plea of justification. The first was Professor Donald Watt, who is an Emeritus Professor at the London School of Economics and was described by Irving as “the doyen of diplomatic historians”. Professor Watt was invited by Irving to give evidence about the evaluation of wartime documentation and about Irving’s reputation and ability as an historian. The other witness summoned by Irving to give evidence on his behalf was Sir John Keegan, the Defence Editor for Telegraph Newspapers whose knighthood as for services to military history. He too dealt with Irving’s standing as an historian. Another witness who gave evidence for Irving, in his case voluntarily, was Professor Kevin Macdonald, who is a Professor of Psychology at California State University-Long Beach. He gave evidence on what he termed “Jewish-gentile interactions” from the perspective of evolutionary biology. There was no cross-examination by the Defendants’ counsel of any of these witnesses.
4.21 In the course of my summary of the evidence and arguments on the issue of justification, I shall need to make frequent reference to the distinguished academic experts whom, I have identified above. I hope that they will understand if, in referring to them, I dispense with their academic titles (as I have done with in the case of Professor Lipstadt). No disrespect is intended: it simply makes for easier reading.