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 JUSTICE GRAY: Yes. 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 JUSTICE GRAY: Yes. 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 courtroom. 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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