Archive/File: people/i/irving.david/libel.suit/transcripts/day018.20
Last-Modified: 2000/07/24

   Q.   I am only going to deal with this very briefly, my Lord,
        and this is the question:  Do you ever apply your mind,
        witness, to the question of what pressures of a
        psychological nature or other nature may have been applied
        to a witness to make statements on which you have relied?
   A.   I think you try to put your mind inside the mind of the
        person giving the evidence, and you ask yourself what
        interest they would have in saying one thing or another.
        So, prima facie, it would seem obvious that a former Nazi
        who was deeply implicated in the crimes of Nazism would
        have an interest in trying to exculpate himself in giving
        evidence.  In terms of what pressures were put on
        somebody, then I think you have to look for evidence of pressures.
   Q.   Can I stop you there.  You say a former Nazi might try to
        exculpate himself.  Would there be a temptation in a
        Fuhrer state to exculpate himself by saying that he was
        acting on higher orders, regardless of whether or not it

.          P-173



        was true?
   A.   We are talking about a different period now.  We are
        talking about during the Third Reich?
   Q.   Yes, that is what we are interested in here.
   MR JUSTICE GRAY:  No, I think trials after the war of Nazi
        Generals.
   MR IRVING:  Trials after the war, but suppose a General or
an
        SS Obergruppenfuhrer like Karl Wolf or someone like
that
        put on trial, would there be a temptation,
hypothetically,
        for him to say:  "Well, I did not do this on my own
        initiative.  I was told it was the Fuhrer's orders",
just
        for an example?  Would there be a temptation do you
think?
   A.   No, I think that would be difficult, because the
classic
        defence "I was only obeying orders" has not been one
that
        has been widely accepted by courts.
   Q.   But it was specifically excluded at Nuremberg, was it
        not?  It was in the permitted at Nuremberg, the high
        orders defence?
   A.   Yes.
   Q.   What about in the German courts, was it permitted?
   A.   Let us take the Frankfurt Auschwitz trials of 1963 to
4,
        and there was a very extensive affidavit there by
        historians which tried to sketch out the possibilities
        there were for evading orders, and indeed historians
and
        law courts have always been exercised by the problems
        posed by that particular defence.  On the whole I do
not

.          P-174



        think it is one that would recommend itself to people.
It
        is far better to say that you did not know about it
than
        simply, yes, you did know but you were only obeying
        orders.
   Q.   How reliable would human memory be after 20 years, do
you
        think?
   A.   I am not a psychologist.  I think that one has to be
one
        has to be sceptical and critical about what people
say,
        but you cannot dismiss it out of hand.  Many of the
        interviews which you conducted 20 or 30 years after
the
        events involved, I think that one has to be very
critical
        and very sceptical about what these people are saying
and
        ask why they were saying it and what interest they had
in
        taking the line they were taking.  But that does not
mean
        one dismisses it out of hand.  You go through the
normal
        historical procedures of comparing what they say with
the
        documentation that is available, preferable
contemporary
        documentation.
   Q.   My Lord, I have now reached the end of my prepared
        questions.  I had prepared to ask further questions
today
        but that was on the area you were not going to allow.
   MR JUSTICE GRAY:  Yes, that was on bundle E?
   MR IRVING:  On bundle E, yes.
   MR JUSTICE GRAY:  Yes.
   MR IRVING:  You have promised me additional time for
dealing
        with Professor Evans.

.          P-175



   MR JUSTICE GRAY:  Yes.  I am not going to compel you to
carry
        on if you have run out of questions.
   MR IRVING:  I have questions prepared here but not in a
form
        that would be useful to the court.
   MR JUSTICE GRAY:  Yes.  I think I have probably removed a
        couple of hours by saying that you should deal with
bundle
        E later.
   MR IRVING:  By way of submission.
   MR JUSTICE GRAY:  I would not say I have removed.  I have
        postponed the two hours it will probably take.  So I
am
        not critical by of you for having run out, but you
have
        run out.  There is nothing you want to deal with now?
        I cannot immediately think of anything.  Mr Rampton,
can
        you?
   MR RAMPTON:  I cannot.  I think it would be unsatisfactory
for
        a number of reasons for Mr Irving to go back into the
        witness box ----
   MR JUSTICE GRAY:  I think it would.
   MR RAMPTON:  --- for further cross-examination.
   MR IRVING:  I would be quite happy to go back into the
witness
        box.
   MR RAMPTON:  No.  I was going to offer to cross-examine him
        tomorrow, but your Lordship said, no, that is not a
good
        idea.
   MR JUSTICE GRAY:  I think it is even less a good idea now.
   MR RAMPTON:  So do I.  All I can suggest is that we go away
and

.          P-176



        prepare, is it Dr Fox tomorrow?
   MR IRVING:  He is coming tomorrow morning.
   MR RAMPTON:  He will not be very long.
   MR IRVING:  Because he will not be allowed to adumbrate on
the
        matters that he was going to I think.
   MR RAMPTON:  That is a matter for his Lordship, but if he
        strays much beyond what is in his written statement
then
        I shall have something to say.
   MR JUSTICE GRAY:  I have not yet re-read his statement.
   MR RAMPTON:  It is quite a long statement.  It is somewhat
        representative, but it is quite long.  Normally
speaking
        nowadays, judge alone particularly, the witness
statement
        stands as the evidence and if I do not cross-examine
the
        witness goes away again.
   MR JUSTICE GRAY:  Yes.  I have not played it quite in that
way.
   MR RAMPTON:  There is flexibility.
   MR IRVING:  As he is an expert on the police decodes, he is
one
        of the world's leading experts on that, I had intended
        asking him questions about those, but if Mr Rampton
        objects ----
   MR RAMPTON:  I would need to know what he was going to say.
   MR JUSTICE GRAY:  Do you want to thrash this out?  If he
maybe
        not going to be able to give any admissible evidence,
it
        is better that he does not have to come all the way
here.
        Do you want to have an argument about it now?
   MR RAMPTON:  No.  I have nothing to say about what evidence
he

.          P-177



        might give about decodes because it is not in his
witness
        statement.  If he is going to give evidence about the
        decrypts, I must have a witness statement in advance
and
        he had better not come tomorrow at all.
   MR JUSTICE GRAY:  Technically that is right.  What is he
going
        to say, do you hope?
   MR IRVING:  I was going to question him as an expert on the
        Bletchley Park operations and the extent of the
decodes,
        and what one could have expected, what he has seen in
the
        decodes, the work he has done on them.  He has spent
six
        months of his life reading right through them.
   MR RAMPTON:  I think in all the circumstances I do need to
have
        prior notice of that.
   MR JUSTICE GRAY:  Can we just focus to see quite what the
issue
        is going to be?  The evidence so far is, and correct
me if
        I am wrong about this, is, yes, they would have been
able
        to intercept and decode what you might call middle
level
        kind of communications.
   MR IRVING:  Also from Himmler downwards, from Himmler to
the
        Eastern Front.
   MR JUSTICE GRAY:  That is really the issue.  I suppose you
want
        to see how far you can take it up the ----
   MR IRVING:  We could usefully ask him, has he seen any
Hitler
        orders of any nature whatsoever, and also what he has
and
        what he has not seen in these archives.
   MR JUSTICE GRAY:  That is certainly relevant, but I think

.          P-178



        Mr Rampton does need to have advance notice so that he
can
        consult his own experts and put his case in
        cross-examination.
   MR RAMPTON:  I would need, if this is to be taken seriously
in
        the context of this case, which I can see it might be
----
   MR JUSTICE GRAY:  It is certainly relevant.
   MR RAMPTON:  I quite accept it is relevant.  I need to have
        chapter and verse from Dr Fox on paper.  I then need
to
        have time to have the accuracy of what he says checked
by
        others.
   MR JUSTICE GRAY:  That is fair.
   MR RAMPTON:  I really cannot just accept it like that.
   MR JUSTICE GRAY:  If they were intercepted, I am surprised
they
        have not surfaced.
   MR IRVING:  If what has surfaced.
   ?  MR JUSTICE GRAY:  If high level messages from Himmler
and so
        were intercepted at Bletchley on matters relevant to
this
        case ----
   MR IRVING:  My Lord, with respect, I have brought to the
        attention of your Lordship already the ones of
December
        1st and December 4th 1941 where Himmler orders, says
to
        Jackelm, "You have exceeded your authority and the
        guidelines.  Any further arbitrary actions will be
        punished", you will remember.
   MR JUSTICE GRAY:  That was a Bletchley intercept, was it?
   MR IRVING:  That was from Himmler to Jackelm intercepted by
the

.          P-179



        British, yes.  It is a very important message on which
        I rely very strongly.  It indicates that one would
have
        expected messages to be there.
   MR JUSTICE GRAY:  As I say, it is plainly relevant.  But I
do
        not suggest you need to do it in huge detail given the
        pressures you are under.
   MR IRVING:  I did not want to go beyond the actual messages
I
        have already produced, my Lord. I wanted to ask him
then
        on the basis of his expertise what else, what the
scope of
        the documentation is and has he seen anything, and
does
        the documentation cover the entire spectrum from the
most
        trivial matters like parking tickets, all the way up
to
        these mass shootings on the Eastern Front, and so on.
   MR JUSTICE GRAY:  What I think Mr Rampton is entitled to
        is ----
   MR IRVING:  A little notice.
   MR JUSTICE GRAY:  --- probably on one page, like one of the
        things you do for me, just really giving the gist of
what
        he is going to say.  That is enough.
   MR RAMPTON:  Yes, I do, but I also will likely need to time
to
        get some help with it because I cannot ask questions
about
        something about which I know nothing.  If I am told
that
        I should not take Dr Fox's word for what he says, then
        I have to go and do some -- somebody has got to go and
do
        some work.
   MR JUSTICE GRAY:  I see that.  We may have to lose Dr Fox
from

.          P-180



        his Friday slot.
   MR IRVING:  We cannot do this by Friday quite clearly.  In
that
        case I will have to introduce him sometime next week,
but
        I will fax to the Defence solicitors a one page proof
of
        what he intends to say.
   MR JUSTICE GRAY:  Dr Fox is relatively available, is he?
   MR IRVING:  Except on Mondays.  He cannot come on Monday.
He
        is a lecturer I think at the University College or
Jews
        College or University of Canterbury somewhere.
   MR RAMPTON:  Can I suggest that he be deferred until after
        Professor Evans has finished?
   MR IRVING:  Yes.
   MR JUSTICE GRAY:  Yes, that is a good thing anyway.
   MR RAMPTON:  It is much better from your Lordship's point
of
        view and from the Professor's point of view.
   MR JUSTICE GRAY:  We are not sitting on Friday that is now
        obvious.
   MR RAMPTON:  No.
   MR IRVING:  I hope your Lordship does not begrudge me the fact
        that I have not got another 45 minutes?
   MR JUSTICE GRAY:  No.  We will adjourn now.

                  (The witness stood down)
        (The court adjourned until Monday, 14th February 2000)

.          P-181

Home ·  Site Map ·  What's New? ·  Search Nizkor