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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day016.03

Archive/File: people/i/irving.david/libel.suit/transcripts/day016.03
Last-Modified: 2000/07/20

   MR JUSTICE GRAY:  Probably not bouncing back to all that many
        people, would they be?  National Post?.  I have never heard it.
   MR IRVING:  It is a major Toronto newspaper published by Conrad
        Black in conjunction with the Daily Telegraph.  Article
        called "David Irving versus The Dead", written by a man
        called Geoffrey Wheatcroft, who is a British, London based journalist.
   MR JUSTICE GRAY:  Which bit in this?
   MR IRVING:  Well, the whole article is sinister in as much as
        it also incorporates a number of items that have so far
        not been produced in court, including privileged items,
        and this morning in today's Ottawa Sun, I believe, there

.          P-16

        were also quotations from Professor Richard Evans' report,
        which is a highly libelous and defamatory document and it
        is privileged only when used in connection with a report
        in the case.
   MR RAMPTON:  My Lord, this discussion is becoming unwieldy for
        two reasons.  One is that I am excluded from it because
        I do not have what Mr Irving is referring to.  The other
        is that the reason why people have access to Professor
        Evans' report is that Mr Irving put it on his web site.
   MR IRVING:  With a severe health warning, warning people that
        the entire contents of the report are considered to be libelous.
   MR JUSTICE GRAY:  Are the entire contents of the report on your web site?
   MR IRVING:  They are accessible with a password.  There is a
        health warning that flaps down so that anybody who looks
        at it is warned in advance that the contents are deemed to
        be defamatory and untrue, and will be established when we
        have Evans in the box.
   MR JUSTICE GRAY:  I have not read these obviously because you
        have just presented me with them.  All I would say,
        subject to anything Mr Rampton wants to say afterwards, is
        that it is not open season and, in particular, if
        journalists who are based here choose to write in foreign
        publications articles which perhaps do create a risk of
        prejudice, then they must realize that they may be

.          P-17

        amenable to this court's jurisdiction, albeit that the
        publication in question occurred abroad.  But beyond that
        I am slightly reluctant to get into this because it is a
        bit of a diversion.  I can certainly understand you get
        fed up with it.  It is not going to affect my mind, that
        is the point.
   MR IRVING:  I am faced here by extremely powerful and wealthy
        litigants who have expended a lot of effort in posting a
        defence to this case, and more than that I will not say, my Lord.
   MR IRVING:  In that case I do not ask your Lordship to read the
        articles.  I think that has now dealt with that.
   MR JUSTICE GRAY:  I will glance at them or, if you rather,
        I will not, whichever.
   MR IRVING:  By uttering your warning that it is not open season ----
   MR JUSTICE GRAY:  Mr Rampton may disagree with that as a matter of law.
   MR RAMPTON:  It is open season.  I believe, there being no
        jury, it is open season except in one respect.  It would
        not be right and would be a contempt of court to put
        direct or indirect pressure on the litigant or any of his witnesses.
   MR RAMPTON:  It is also of course if they were saying terrible

.          P-18

        thing about your Lordship.  That could theoretically
        become contempt, but I do not believe that is what we are
        talking about.  Otherwise not.
   MR JUSTICE GRAY:  I am not so sure about that.  If you write
        here for publication in a journal which you know is going
        to come back, it seems to me that that could amount to a
        contempt.  This is a very gentle warning shot over the bows.
   MR RAMPTON:  It would depend on the content.
   MR JUSTICE GRAY:  Of course.
   MR RAMPTON:  That which is merely, what shall we say,
        tendentious in its reporting?
   MR JUSTICE GRAY:  It has to establish a substantial risk of
        serious prejudice.
   MR RAMPTON:  It would have to be such material that Mr Irving
        said in honesty to your Lordship, "I really do not think I
        can continue under this kind of fusillage".
   MR JUSTICE GRAY:  It may not have to go quite as far as that.
   MR IRVING:  I can give one example of the kind of pressure that
        we come under by virtue of the press reporting now.  The
        principal of the school attended by my little girl, the
        ballet school, well, enough.
   MR JUSTICE GRAY:  That sort of thing must be personally
        upsetting for you but it cannot possibility affect my mind
        because I do not know anything about it.
   MR IRVING:  If ordinary citizens are affected in this way by

.          P-19

        this abusive press coverage even at this stage in the
        case, then eventually this will mean that the entire
        public gallery of this court will be affected by it, and
        waves of hostility will be felt by the members of this
   MR JUSTICE GRAY:  Mr Irving, all I would say is that, as long
        as you can carry on, which you are doing, despite what you
        are having to put up with, then I hope you will find me
        approaching the evidence unaffected by anything that may
        be published in newspapers.
   MR RAMPTON:  Can I add this?  If the public's mind is affected
        adversely to Mr Irving by a fair and accurate report of
        the proceedings in court, then only Mr Irving has himself
        to blame.
   MR JUSTICE GRAY:  That of course is true, but I think his
        complaint is that these are things that are said or
        published which really do not reflect in any way the
        proceedings in court.  That I think is his complaint.
   MR RAMPTON:  The only one of those things that I have read is
        the Guardian article and, so far as that is concerned,
        I would not agree.
   MR JUSTICE GRAY:  I have not read it.
   MR IRVING:  My Lord, a number of newspapers are prejudging the
        issue and, as your Lordship is aware, we are just at the
        watershed, so to speak.  We are now beginning to hear the
        defence witnesses in detail.

.          P-20

   MR JUSTICE GRAY:  Yes.  They do not have the last word, though,
        do they?
   MR IRVING:  My Lord, I now turn to the question of these very
        witnesses, once again the non-appearing experts, the
        witnesses whom we are informed on Thursday would not now
        be being called.  Once again, I am asking for your
        Lordship's tutelage as to in what manner I can address the
        matters that they have raised in their expert reports,
        using the abundance of material that we have developed.
        These witnesses have in some part relied on witness
        statements put in lower down the hierarchy, so to speak,
        which I also impugn.  There is one famous case of one of
        the witnesses who accused me of having the skin heads at
        one of my meetings, who himself turned out to police
        records as a skinhead gang leader.  There is no way that
        I can put that kind of material before your Lordship
        because these witnesses are not now going to be called.
   MR JUSTICE GRAY:  Well, the way I would suggest, I am not
        saying this would necessarily, as it were, work but these
        are things you would have wanted to put to Eatwell and
        Levin, I suppose?
   MR IRVING:  Eatwell and Levin, for example, yes.
   MR JUSTICE GRAY:  You probably can put -- I do not know what
        you are talking about -- some of the things you were going
        to put to them to one of the other experts.
   MR IRVING:  That is what I hope to do, but your Lordship will

.          P-21

        appreciate it is going to be difficult, for example, now
        that we know that the Russian witnesses are not going to
        be coming, we had an abundance of questions that I
        intended to put to them, for example, about the legality
        or the legitimacy of their holdings of these papers under
        The Hague rules, materials like that, and the conditions
        which rule in the Russian archives, how accessible they
        are to other historians, things that would have assisted
        your Lordship in forming an opinion and I am just ----
   MR JUSTICE GRAY:  You can give that evidence yourself.  You
        have been there.
   MR IRVING:  Yes.  Well, some of that evidence, yes, my Lord,
        but it is difficult because I have the last word in this
        case, my closing speech, it would be improper, indeed
        unfair, for me to adduce or lead that kind of evidence in
        a closing speech without having tested it in any way.
   MR JUSTICE GRAY:  Yes, no, you could not do it in your -- you
        would have to give evidence, as it were, from the witness
        box first.  Try putting the material to whichever you
        think is the most appropriate expert who is being called.
        Mr Rampton has been, I think, fairly liberal in the sense
        he has not objected when he might otherwise have done
        because this is such a curious case, it is all experts.
        So try to do it that way.  I think you will find that you
        will get your point over.
   MR IRVING:  This is a little bit of red flag waving so that

.          P-22

        your Lordship understands why sometimes I am putting
        material to witnesses when you think to yourself, "Well,
        this is not covered by this witness's statement".
   MR JUSTICE GRAY:  Yes.  You have put things to Sir John Keegan
        which you would not in an ordinary case have had the right
        to put to him, but nobody objected and the points got
        other to me.
   MR IRVING:  I am indebted.
                  The third point, my Lord, concerns the snatch of
        remarks by me from the Errol Morris film which your
        Lordship may remember, the film 'Mr Death'.  It was put to
        your Lordship as a transcript of fragments of remarks by
        me on the question of what generates anti-Semitism, where
        does anti-Semitism come from?
   MR JUSTICE GRAY:  Is this the National Alliance?
   MR IRVING:  No, it was the other little thing that they put in
        afterwards.  I think Miss Rogers is probably looking for
        it.  It was, I think, highly prejudicial.  There is one
        sentence in there which actually reads, "I am a racist"
        and taken, of course, out of context that sentence can be
        flung at me around the world and, no doubt, will be.
   MR JUSTICE GRAY:  Well...
   MR IRVING:  What I am asking your Lordship is that I should
        either see the film or have a much longer transcript of
        those remarks in ----

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