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The David Irving libel trial - Irving v. Penguin Books
Limited and Deborah E. Lipstadt, [2000] EWHC QB 115 - was
certainly one of the most spectacular and interesting events
in modern English legal history. It is fitting that the
trial occurred in the last year of the Twentieth Century, as
much of the evidence focussed on the Twentieth Century's greatest
and most awful tragedy, the Holocaust. The plaintiff, David Irving, was the writer of many very
popular books on the history of the Second World War. He
was, and is, undoubtedly a very gifted writer. And, despite
lacking formal academic qualifications, extremely knowledgeable
about the era of history which is his principal interest.
His
publications have been mainly directed to the popular market,
and he has achieved sales which respected academic historians
could only dream of. Yet his career as a best-selling
author of non-fiction seemed to stagnate, as Irving's
association with the politics of the extreme Right, including
neo-Fascists and Nazi apologists, began in 1988 to also embrace
Holocaust denial. It has been speculated that his action against Penguin Books
and Professor Lipstadt was something of a "publicity stunt",
intended to kick-start his flagging sales. As well-known
Australian commentator, Philip Adams, observed:
" ... he wanted his time in court ... to push his barrow.
[It] was another opportunity for him to gain media attention,
to be a martyr."
It is difficult to believe that Irving had any other motive
when he issued his Writ. Lipstadt was hardly a household
name: an obscure American academic writer, largely unknown outside
her own niche of interest in the phenomenon of Holocaust denial.
The book which Irving claimed had defamed him - Denying
the Holocaust: The Growing Assault on Truth and Memory - came
out in 1993. At least until the trial, it had never threatened
to reach any "best-seller list".
References to Irving in Lipstadt's book were few but undoubtedly
offensive, describing him as "discredited", as "one of the most
dangerous spokespersons for Holocaust denial", as a "neofascist"
with "denial connections", who is "Familiar with historical
evidence ... [but] bends it until it conforms with his ideological
leanings and political agenda". She called Irving "an
ardent admirer of the Nazi leader", who "declared that Hitler
repeatedly reached out to help the Jews". Lipstadt claimed
that scholars had "accused him of distorting evidence and manipulating
documents to serve his own purposes ... of skewing documents
and misrepresenting data in order to reach historically untenable
conclusions, particularly those that exonerate Hitler". She
placed him in a category of historical writers who "mis-state,
misquote, falsify statistics, and falsely attribute conclusions
to reliable sources", and who "rely on books that directly contradict
their arguments, quoting in a manner that completely distorts
the [quoted] author's objectives".
From a pragmatic viewpoint, these insults - although undoubtedly
defamatory, unless capable of being justified or characterised
as fair comment - were hardly likely to have a significant impact
on Irving's readership or reputation. He was already regarded
as an "outsider" to the establishment of academic historical
studies - a fact which, far from troubling him, he wore as a
badge of honour. It is utterly implausible that Lipstadt's
remarks affected his sales, except (possibly) to increase them.
Irving had no practical reason to sue, unless it was the
reason attributed to him by Philip Adams.
If it was Irving's ambition either to restore his reputation
as a credible historian or to enhance his sales amongst more
discerning readers, he picked the wrong defendant and the wrong
case. Maybe an historian with a broader outlook could
have reminded him of Oscar Wilde's terrible fate, and the truism
which it illustrates: where the defendant in defamation proceedings
is prepared to plead a defence of justification, the tables
are turned, and it is the nominal plaintiff who is in the position
of defending himself against the allegations which constitute
the alleged defamation.
Lipstadt refused to withdraw or apologise. Instead,
she set out to prove the truth of what she had written about
Irving, and assembled a formidable team of lawyers and expert
witnesses to achieve that object. This book is the story
of one of those expert witnesses, Richard J. Evans, Professor
of Modern History at Cambridge University, a noted specialist
on modern German history, and chief historical adviser to and
expert witness for Lipstadt's defence.
Evans's book is interesting from various standpoints. To
the practising lawyer or interested lay person, it offers a
rare insight into the preparation and conduct of major civil
litigation. What enriches this insight is that it is provided
by an intelligent and articulate observer who became intimately
involved in the process with no significant prior exposure to
any litigation, let alone litigation on this scale. It
is like a picture of the court-room process painted through
a window, by a passer-by who has an eye for detail, an ability
to grasp technicalities, and a capacity to portray the scene
with vivid clarity.
But Evans's book is more than an insightful commentary on
the preparation for and conduct of a major civil trial; it is
about two other things as well. It is the story of an
investigation, of a search for the truth, which is every bit
as rivetting as a mystery novel. And, at another level,
it offers a powerful analysis of the ethics of historiography.
That "history is written by the victors" - an axiom sometimes
attributed to either Karl Marx or Winston Churchill, but which
undoubtedly pre-dated both of them - has not prevented David
Irving from continuing to present his view of the trial, if
not in print, then on his "Focal Point" website at fpp.co.uk,
and at conferences and seminars in those parts of the world
(most frequently the American Deep South) where he is still
welcome. But Evans's book is a true "victor's history"
- a history of the author's profound personal contribution to
the complete destruction and dismemberment of any pretense that
Irving is a competent historian, indeed that Irving is entitled
to be called an "historian" at all.
The parallels between Irving's trial and that of Oscar Wilde
go beyond the fact that both men brought about their own downfall
by commencing proceedings for defamation. If Holocaust
denial were a criminal offence in the United Kingdom, as it
in Germany - and as gross indecency was, in England, in Oscar
Wilde's time - Irving would doubtless now be in jail. Yet
some uninformed news commentary at the time of the Irving trial
credited Irving (who appeared for himself) with conducting his
case very well, and even, at times, out-performing Lipstadt's
leading counsel, Richard Rampton QC. Similar things have
been said about Oscar Wilde's performance in the witness-box
under cross-examination by Edward Carson QC (subsequently Lord
Carson). In both instances, a perusal of the trial transcripts
will satisfy anyone - at least anyone familiar with the trial
process - of the absurdity of these claims. Just as Wilde's
witty performance in the witness-box served only to alienate
himself from the Jury, and confirmed their impression of him
as a fop and dandy, so Irving's performance at his trial seems
almost calculated to annoy the trial Judge, and to reinforce
the impression that Irving was a propagandist masquerading as
an historian.
Those who have emotional ties to the subject - whether through
connections of blood or faith, or for other personal reasons
- will doubtless celebrate Evans's victory. Others, like
Philip Adams, may see analogies with Monty Python or Lewis Carroll,
and ask "[H]ow could any sane person, particularly a professional
historian, at the end of the 20th Century be raising these issues,
these fundamental issues of Holocaust denial?" What kind
of victory was it to prove, on the balance of probabilities,
that David Irving is a bad historian?
Evans explains how, with a group of research assistants,
he painstakingly combed the historical sources cited in Irving's
published writings, a process made no easier by the fact that
Irving's citations of historical sources were often incomplete.
By this means, Evans built up a formidable case that,
on numerous occasions, Irving's text was not supported by -
and, in some instances, was directly contradicted by - the sources
which he purported to quote. Yet it was not sufficient
for Lipstadt and Evans to establish that Irving was a sloppy,
or even an incompetent, historian. To justify what Lipstadt
had written about Irving, it had to be established that Irving's
many inaccuracies were the product of deliberate falsification,
rather than innocent dereliction.
The strongest argument to this effect was the fact that,
as Evans established, all of the mistakes tended in the same
direction. Innocent incompetence would be the obvious
explanation for a work of purported history, riddled with errors
which did not form any particular pattern. As Evans demonstrated,
to the satisfaction of the trial Judge, Irving's errors invariably
tended in the direction of minimising the scope of Nazi atrocities,
whilst also exaggerating the numbers of civilian casualties
of Allied bombing.
By skilfully juxtaposing Irving's earlier writings with his
later publications, Evans was able to demonstrate a trend of
another kind. Sources which Irving once recognised as
being ambiguous or of doubtful authenticity came, over time,
to be cited by him as conclusive proof. Views which Irving
once posited as tentative suggestions became, over time, and
without the uncovering of any fresh historical evidence, matters
of incontrovertible fact. This, reasoned Evans, was consistent
with a man increasingly determined to present an account of
history which coincided with his own political and ideological
beliefs. The trial Judge agreed.
Evans's central thesis was that the phenomenon of "Holocaust
denial" may be reduced to a "lowest common denominator", involving
four minimum beliefs:
(1) That the number of Jews
killed by the Nazis was far less than six million, and amounted
only to a few hundred thousand, and was therefore similar to
(or less than) the number of German civilians killed by Allied
bombing;
(2) That gas chambers were not
used to kill large numbers of Jews at any time;
(3) That neither Hitler nor
the Nazi leadership in general had a programme to exterminate
Europe's Jews, and only wished to deport them to Eastern Europe;
and
(4) That the "Holocaust" is
a myth invented by Allied propaganda during the war, sustained
since then by Jews wishing to attract political and financial
support for Israel and themselves, and supported by evidence
fabricated after the war.
The proof that Irving was guilty of "Holocaust denial", so
defined, came in two forms - evidence from his own published
writings, and evidence of his association with organisations
promoting some or all of the four theses mentioned above. Evans
was concerned principally with evidence of the former kind,
and assembled an extensive record of Irving's published statements,
often at closed conferences and seminars, articulating such
views. Once again, the trial Judge largely accepted Evans's
evidence, both as to his definition of what constitutes "Holocaust
denial", and that Irving's published statements made him a denier
of the Holocaust.
The world, it seems, is full of people who are prepared to
believe - or at least to attach some credibility to - the wildest
conspiracy theories: that the moon landing was actually filmed
on a "back lot" in Hollywood; that John F. Kennedy was murdered
by the CIA, or that Princess Diana was killed on the instructions
of the British Royal Family; and so forth. According to
one statistic quoted by Lipstadt, more US citizens "believe
that Elvis Presley is alive than ... believe the Holocaust didn't
happen"; but even this statistic acknowledges that Holocaust-denial
is alive and well in the hearts and minds of people who are
not confined to insane asylums, and who perhaps even have an
IQ which exceeds their shoe size.
The significance of the Irving trial does not lie in the
fact that it will put paid, once and for all, to the phenomenon
of Holocaust denial. Sadly, it will not do so. Those
who choose to believe (for whatever reason) that the gas chambers
were an invention of Allied propaganda, or of an international
Jewish conspiracy, or of a communist plot to tarnish the extreme
Right, will continue to believe these fantasies. The trial
has demonstrated the importance of history as the most accurate
account of past events which competent and unbiassed research
is able to produce, and not merely a matter of partisan impression
or conjecture. It has educated the public about the Holocaust,
and discredited the phenomenon of Holocaust denial generally.
But perhaps Lipstadt's and Evans's greatest achievement has
been to deprive that phenomenon of one of its most convincing
and more respectable exponents.
This achievement should not be under-rated. What made
Irving particularly dangerous was his credibility: his credibility
as a best-selling author, and his credibility as a writer of
historical books which bear (at least superficially) all the
usual indicia of genuine scholarship. Those who are already
converted to the devil-worshipping faith of Holocaust denial
will never be unconverted; indeed, the sacrifice of a martyr
to their cause will only strengthen and enlarge their belief
that a massive international conspiracy continues at work; such
a mentality is beyond any hope of salvation. But the casual
reader of history - the reader who has neither the training
nor the inclination to challenge the credibility of a widely-published
author of historical books - may perhaps be saved from joining
the ranks of the Holocaust denial cult.
Within these parameters, the victory secured by Lipstadt
and Evans was overwhelming. The monumental Reasons for
Judgment published by Mr. Justice Gray on 11 April 2000 are
conveniently summarised by His Lordship in these terms:
"[T]he 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."
Even so, and despite the offensiveness of Irving's racist
and antisemitic attitudes, one cannot read Evans's account without
a sense that Irving's God-given talents have been horribly wasted
in doing the Devil's work. His skills as an historical researcher
are undoubted; his gift as a writer of popular books is exceptional,
even if his publications might more accurately be sold as works
of fiction. It seems apparent, from the way in which he
conducted his own case, that he genuinely believed that he was
innocent of the charges of distorting and manipulating historical
evidence. It would be easy to write him off as a fraud
and a charlatan. But it might be closer to the mark to
conclude that David Irving, himself, was the first victim of
his own remarkable powers of deception. After he lost the trial,
Irving admitted in a radio interview that he had been "self-confident
to the point of arrogance". It was his self-confident arrogance
which ultimately destroyed Irving - just as Oscar Wilde's self-confident
arrogance, at another libel trial more than a century earlier,
had destroyed another writer of fiction whose greatest mistake
was to underestimate the capacity of a law court to tell fiction
from fact.
Irving's self-delusion is apparent on a close reading of
the trial transcripts, but is brought into sharpest context
by the contrast between Evans's scholarly approach to historiography,
and Irving's bombastic denunciation of his critics. Irving
undoubtedly considered himself, and still considers himself,
a "true" historian - an historian whose presentation of history
is not distorted by the "political correctness" which has been
forced on academic scholars by (so he believes) the Jewish lobby,
communists, and others whom he calls the "traditional enemies"
of truth. Irving is unable to accept that his own writings
may reflect a bias. In the result, the clearest demonstration
of Irving's mind-set was a Freudian slip in his closing address
to the Judge, when, rather than the traditional "Your Lordship",
Irving addressed Mr Justice Gray as "Mein Führer". It
must have almost been a disappointment for Evans that, after
all of the work which he did, the single most compelling indictment
of Irving during the trial accidentally fell from his own mouth.
Be that as it may, Evans's book is well worth reading. He
somehow succeeds in distilling the complexities of historical
research, along with those of a major piece of litigation, into
a thoroughly readable and utterly convincing narrative. Professional
lawyers and historians alike will find much in this book which
is of interest to them; but the lay reader who has an interest,
either in the law or in history, will not be disappointed. Evans's
role in the Irving trial was a great service to the law, to
history, and to humanity; this book is a fitting tribute to
that service.
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