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Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day018.20

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
   MR IRVING:  Trials after the war, but suppose a General or
        SS Obergruppenfuhrer like Karl Wolf or someone like
        put on trial, would there be a temptation,
        for him to say:  "Well, I did not do this on my own
        initiative.  I was told it was the Fuhrer's orders",
        for an example?  Would there be a temptation do you
   A.   No, I think that would be difficult, because the
        defence "I was only obeying orders" has not been one
        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
        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
        law courts have always been exercised by the problems
        posed by that particular defence.  On the whole I do

.          P-174

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

.          P-175

   MR JUSTICE GRAY:  Yes.  I am not going to compel you to
        on if you have run out of questions.
   MR IRVING:  I have questions prepared here but not in a
        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
        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
        not critical by of you for having run out, but you
        run out.  There is nothing you want to deal with now?
        I cannot immediately think of anything.  Mr Rampton,
   MR RAMPTON:  I cannot.  I think it would be unsatisfactory
        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
   MR RAMPTON:  No.  I was going to offer to cross-examine him
        tomorrow, but your Lordship said, no, that is not a
   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

.          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
        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
        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
        nowadays, judge alone particularly, the witness
        stands as the evidence and if I do not cross-examine
        witness goes away again.
   MR JUSTICE GRAY:  Yes.  I have not played it quite in that
   MR RAMPTON:  There is flexibility.
   MR IRVING:  As he is an expert on the police decodes, he is
        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
        not going to be able to give any admissible evidence,
        is better that he does not have to come all the way
        Do you want to have an argument about it now?
   MR RAMPTON:  No.  I have nothing to say about what evidence

.          P-177

        might give about decodes because it is not in his
        statement.  If he is going to give evidence about the
        decrypts, I must have a witness statement in advance
        he had better not come tomorrow at all.
   MR JUSTICE GRAY:  Technically that is right.  What is he
        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
        and what one could have expected, what he has seen in
        decodes, the work he has done on them.  He has spent
        months of his life reading right through them.
   MR RAMPTON:  I think in all the circumstances I do need to
        prior notice of that.
   MR JUSTICE GRAY:  Can we just focus to see quite what the
        is going to be?  The evidence so far is, and correct
me if
        I am wrong about this, is, yes, they would have been
        to intercept and decode what you might call middle
        kind of communications.
   MR IRVING:  Also from Himmler downwards, from Himmler to
        Eastern Front.
   MR JUSTICE GRAY:  That is really the issue.  I suppose you
        to see how far you can take it up the ----
   MR IRVING:  We could usefully ask him, has he seen any
        orders of any nature whatsoever, and also what he has
        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
        consult his own experts and put his case in
   MR RAMPTON:  I would need, if this is to be taken seriously
        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
        have time to have the accuracy of what he says checked
   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
        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
        case ----
   MR IRVING:  My Lord, with respect, I have brought to the
        attention of your Lordship already the ones of
        1st and December 4th 1941 where Himmler orders, says
        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

.          P-179

        British, yes.  It is a very important message on which
        I rely very strongly.  It indicates that one would
        expected messages to be there.
   MR JUSTICE GRAY:  As I say, it is plainly relevant.  But I
        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
        have already produced, my Lord. I wanted to ask him
        on the basis of his expertise what else, what the
scope of
        the documentation is and has he seen anything, and
        the documentation cover the entire spectrum from the
        trivial matters like parking tickets, all the way up
        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
        he is going to say.  That is enough.
   MR RAMPTON:  Yes, I do, but I also will likely need to time
        get some help with it because I cannot ask questions
        something about which I know nothing.  If I am told
        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
        some work.
   MR JUSTICE GRAY:  I see that.  We may have to lose Dr Fox

.          P-180

        his Friday slot.
   MR IRVING:  We cannot do this by Friday quite clearly.  In
        case I will have to introduce him sometime next week,
        I will fax to the Defence solicitors a one page proof
        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.
        is a lecturer I think at the University College or
        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
        view and from the Professor's point of view.
   MR JUSTICE GRAY:  We are not sitting on Friday that is now
   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

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