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Last-Modified: 2000/07/25

IN THE HIGH COURT OF JUSTICE            1996 I. No. 113

Royal Courts of Justice
                                           Strand, London
                                Wednesday, 1st March 2000

                            MR JUSTICE GRAY

        B E T W E E N:

   The Claimant appeared in person
   MR RICHARD RAMPTON Q.C. (instructed by Messrs Davenport Lyons
and Mishcon de Reya) appeared on behalf of the First and
        Second Defendants
   MISS HEATHER ROGERS (instructed by Davenport Lyons) appeared on
behalf of the First Defendant Penguin Books Limited

MR ANTHONY JULIUS (of Mishcon de Reya) appeared on behalf of
        the Second Defendant Deborah Lipstadt

        (Transcribed from the stenographic notes of Harry Counsell
& Company, Clifford's Inn, Fetter Lane, London EC4
                       Telephone: 020-7242-9346)
(This transcript is not to be reproduced without the
            written permission of Harry Counsell & Company)


.          P-1

   (10.30 a.m.; Professor Funke, recalled.  
   Cross-Examined by Mr Irving, continued.)

   MR JUSTICE GRAY:  Yes, Mr Irving?
   MR IRVING:  My Lord, I have put two small bundles in front of
        your Lordship.  One is a bundle of photographs which I do
        not propose to dwell very much on.  I think I will spend
        10 seconds looking at each one with the witness.  They are
        photographs of German meetings.  They are minor points to
        be made possibly on each of the photographs.  Some of he
        meetings we are familiar with, and some not.
   MR IRVING:  The second bundle, my Lord, I have yesterday taken
        the Eichmann papers, which is what I am now holding in my
        hand.  I have converted them to hard copy.  I would be
        quite happy to make that available to the Defence.  I have
        extracted five or six pages already, which are the only
        pages I have found with a word search for "Fuhrer" or
        "Hitler" in any substance.  They may help the Defence,
        they may help me, I have not really looked at them, but
        I have put them there in case there is any need for
        immediate action on them.
   MR JUSTICE GRAY:  Well, you are not going to deal with them
        with this witness anyway?
   MR IRVING:  No, my Lord.
   MR JUSTICE GRAY:  So we will put that on one side.

.          P-2

   MR IRVING:  Except that lower down on the same bundle there are
        one or two things that I probably will draw the witness's
        attention to.
   MR JUSTICE GRAY:  Mr Rampton, do we have a list of the alleged
   MR RAMPTON:  Yes, we do.
   MR JUSTICE GRAY:  I was thinking it might be helpful to have it
        at this stage.
   MR RAMPTON:  Yes.  So, it is a list of the alleged extremists,
        it is a list of the important ones for this part of the
        case.  There is an "Others" category which really does not
        directly concern Professor Funke.
   MR JUSTICE GRAY:  Right.  Yes, Professor?
   A.   Can I add three remarks from yesterday?
   MR JUSTICE GRAY:  Yes, if you wish to.
   A.   When?
   Q.   Yes, now.
   A.   OK, good.  I rethought the coverage of 9th November '91 in
        Halle and, to my best knowledge, the NB, the National
        Bloc, is not as I said from the Ruhr area, but from
        Bavaria under the leader of Manfred Eichmann.  This is the first.
                  The second, I did not get the protocol of
        yesterday, so -- the minutes of yesterday, so I do not
        know if I got special question of David Irving right.  So
        in the case I did not I want just to state that in those

.          P-3

        pictures we saw he did not allude to direct forms of
        anti-Semitism, but that does not mean that he did not do
        this in the German, you know, appearances, and also if you
        see the whole text of the speech in Munich, I would claim
        this has anti-Semitic sentiments in it.  The second one.
   MR IRVING:  Which speech in Munich are you referring to?
   A.   Yours.
   Q.   Well I spoke in Munich about 30 or 40 times probably.
   MR JUSTICE GRAY:  The one we saw on the video, I imagine.
   MR RAMPTON:  Can I intervene at that stage, to point something
        out, and it is this.  If we are talking about the first
        Munich meeting, the one which has "Wahrheit macht frei"
        and David Irving's name on the placard underneath it.  Our
        understanding from the diary of Mr Irving, first of all,
        is that he spoke twice at that meeting, once before the
        interval and once after.
                  The second thing, we learned from his reply,
        that he spoke altogether for about an hour, and that he
        said he was going to rely on the text of what he said at
        the trial of this action.
   MR JUSTICE GRAY:  You have not had anything?
   MR RAMPTON:  I have never had the tape or a transcript of it.
   MR JUSTICE GRAY:  Yes.  Mr Irving, what about that?
   MR IRVING:  My Lord, obviously, at one time I had anticipated
        that I had a tape of it. In fact, I think there is
        correspondence indicating that I believed I did have a

.          P-4

        tape of it, but I have disclosed all my tapes and
        cassettes to the defence in this matter, nothing has been
        withheld.  I had no idea what was on the video cassettes
        because I did not have a video player.
   MR JUSTICE GRAY:  In the light of that, Mr Rampton, I think it
        has to be left to cross-examination.
   MR RAMPTON:  Well, I think it will.  There are some other
        things I want to raise in relation to discovery in
        cross-examination.  I am a little concerned, however,
        about the time-scale, because the cross-examination of
        Mr Irving by me, which might last a day, or a day and a
        bit, I hope we will be finished this week.
   MR RAMPTON:  That will be the last of the evidence.  I cannot
        say any more than that.
   MR JUSTICE GRAY:  No, obviously, I am not going to cut off
        Mr Irving.  I have given an indication that I think the
        scope of cross-examination of this witness is relatively
        limited.  You have, if I may say so, taken hints in the
        past, but you must take your own course, this is not a
        direction of any sort.
   MR IRVING:  Next week, of course, I will have some submissions
        to make.
   MR JUSTICE GRAY:  Of course.  You both will.  Anyway, shall we
        press on? Is there anything else?
   MR RAMPTON:  Is it appropriate to say something about, if we

.          P-5

        are talking about closing speeches, about timing, at this juncture?
   MR JUSTICE GRAY:  Shall we wait until after we have dealt with
        (if I may so put it that way) Professor Funke?
   MR RAMPTON:  It is only this, that there are a number of people
        here, and I do not shrink from saying, including me -- --
   MR JUSTICE GRAY:  Oh, I see, you mean how long an interval?  Is
        that what you are getting at?
   MR RAMPTON:  Yes, because there are "social" is the wrong word,
        but there are what one might call arrangements which have
        to be made.  I have been talking earnestly with
        Miss Rogers, as I often do, and we are very anxious
        because of what might happen here after in another place,
        as the lawyers call it, that we leave no stone unturned to
        make sure that your Lordship has as much material as we
        would like you to have.  Of course, I say without any kind
        of sycophancy, that I am confident that the case is in
        place already, but I cannot actually, in my client's
        interests, take that risk.  Therefore, we want to do a
        long rather than a short job.  I can do a short job.  I
        can probably do it from memory, but I do not want to do
        that.  It did seem to us we would need at least a week to
        get the thing properly in place.  I am strongly of the
        view, as an advocate, I do remember, like your Lordship,
        in those days being of similar view, I think that it is
        not desirable that the Defendant makes a speech before a

.          P-6

        weekend and the Claimant or Plaintiff after the weekend.
        Both should come in the same week.
                  My proposal is that I should start on Monday
        13th, which is a week from the coming Monday and that
        Mr Irving should have as much time as he likes thereafter,
        subject, obviously, to case control.
   MR JUSTICE GRAY:  Mr Irving, do you have any views about that?
   MR IRVING:  Whether it would be Monday 13th or not I think is
        in the stars, because if Mr Rampton wishes to have a clear
        week, presumably, that clear week starts running from the
        end of the time I have put in documents and so on by way
        of submission, which may take more than a day.
   MR JUSTICE GRAY:  No, well, what I would be inclined to think
        in terms of, and we might have to revise this, is to have
        the whole of next week for preparing speeches, and if we
        do not finish the evidence by close of play on Thursday,
        then I think perhaps we can nibble into the week, because
        it seems to me that Monday the 13th would be a good day to
        have as a target for the start of closing speeches.
   MR RAMPTON:  I would rather nibble into Friday if it came to it.
   MR JUSTICE GRAY:  Yes, I do not dispute that at all.
   MR IRVING:  I am afraid I do, because there is a German saying
        (German spoken) which means that a lot of dogs spell death
        to the hare, and there is a lot of dogs on the other side
        with no disrespect and there is one hare on this side.

.          P-7

        I am carrying the ball entirely myself.
   MR JUSTICE GRAY:  I follow that.
   MR IRVING:   I cherish every day that I have for preparation.
   MR JUSTICE GRAY:  I tell you what I propose to deal with that,
        is for you to have the opportunity to indicate during the
        course of that week, the week prior to 13th March, that
        you falling behind or whatever, if you really need more
        time, I do not myself think you will because you have a
        great capacity for getting through the material, but if
        you are finding it difficult then obviously I would be
        very sympathetic to further time.
   MR IRVING:  I do not necessarily see the reason why it has to
        be a Monday Mr Rampton has to start unless he intends to
        speak for three whole days.
   MR RAMPTON:  I doubt he will speak for three whole days but he
        might speak for the best part of one whole day.
   MR IRVING:  That will allow both speeches to come within of
        compass of one week.
   MR RAMPTON:  Yes. I do not mind, I was not (to use a bit of
        Latin) I was not trying to fix Monday, 13th, as a terminus
        post quo nome, but as a terminus quo nome, if I can put it
        like that, meaning to say that I do not mind when it is,
        but I do not want it before Monday 13th.
   MR JUSTICE GRAY:  I think we are thinking in broadly the same terms.
   MR RAMPTON:  I would only make other observation, it is not

.          P-8

        right for Mr Irving to talk about dogs and hares when
        after all it is a pack of hares that is being chased by
        one dog.
   MR IRVING:  Rabbits.
   MR JUSTICE GRAY:  Yes.  Professor Funke, you have something
        else to say?  You did only mention two, yes.
   A.   Yes.  It relates to the Congress of 21st April '90 in
        Munich.  I read the diary again and there is clearly
        described how and what form it was illegal, and that was
        the reference I had also to write it in my report.  It was
        illegal demonstration after the Congress, and it is stated
        very clearly.  The other thing I have to mention that to
        my best assessment the diary and the video converts to
        that, that at a given period of time he was with marching.
   THE INTERPRETER:  Marching along with?
   A.   Along with Kuhnen and the others towards the Vertherren
        Halle.  I think it is very clear if you put these things
        together and also the letters Mr Irving gave us yesterday
        in the bundle J.

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