Sir Nicholas Mostyn
Welcome to this special edition of our podcast Law and Disorder. I'm Nicholas Mostyn.
Baroness Helena Kennedy KC
I'm Helena Kennedy.
Charlie Falconer
And I'm Charlie Falconer.
Sir Nicholas Mostyn
We're recording this edition in the offices in London of the well-known law firm Mishcon de Reya in front of a live audience of members of the firm.
So let me explain what's going on. We're marking the 25th anniversary of the delivery of the judgment of the late Mr Justice Charles Gray in April 2000 in the momentous defamation case of Irving against Penguin Books and Lipstadt. In that case, David Irving, who held himself out as a serious objective historian, maintained that he had been libelled in a book entitled Denying the Holocaust: The Growing Assault on Truth and Memory, which was written by Professor Deborah Lipstadt in 1993 and then published by Penguin Books, both in, in the USA and the UK. Irving began his libel proceedings in 1996. He acted for himself throughout. Penguin Books instructed Davenport Lyons as their solicitors, and they in turn instructed Heather Rogers, Junior Counsel, and the late Richard Rampton QC as Leader. He sadly died in December 2023. Professor Lipstadt instructed Mishcon de Reya to act as her solicitors. She had Anthony Julius as her lead solicitor and a keen, up and coming, handsome youngster James Libson as his sidekick. James is now the Managing Partner of the firm. Mishcons did not instruct a junior barrister, but they co-instructed Richard Rampton as their Leader.
Professor, tell us, say hello and say, tell us a bit about this.
Deborah Lipstadt
I'm Deborah Lipstadt. The best thing that ever happened to me was someone suggested when I first learned that I was being sued and I was at wit's end, they said you should ask the, the person you have to call to represent you is Anthony Julius at Mishcon de Reya and there's a funny story with that, which I'll share for just a moment, and that I said, oh, Anthony Julius, he's the one who just wrote a book on T.S. Eliot and the antisemitism, and because if you're an academic, someone who works full time as a lawyer and then writes a book like that, you're impressed by that and the person listening, a Brit, a Londoner, began to laugh at me. I knew I had said something quite absurd and then I said, oh, and didn't he also represent Princess Diana? And he said, “Deborah, I'm laughing at you because you're the only one in the world who would say author of book on T.S. Eliot.”
Sir Nicholas Mostyn
Okay. Very good. Very, very good. So and, Anthony, could you say hello and introduce yourself to our listeners?
Anthony Julius
Yeah. Hello, I'm Anthony Julius, and I hope this serves as an introduction to your listeners.
Sir Nicholas Mostyn
James.
James Libson
I'm James Libson. I'm the, as you say, I’m the Managing Partner of the firm and I'm very, very happy to be described as handsome by you. Despite what you said earlier about Jack Lowden being much better looking.
Sir Nicholas Mostyn
We’re coming to that. Now, because many listeners will know, the case was the subject of a 2016 film called Denial, scripted by David Hare with an all-star cast. Mister Justice Gray was played by Alex Jennings, you were played by Rachel Weisz, David Irving was played by Timothy Spall, Richard Rampton was played by Tom Wilkinson, and you, Anthony, were played by Andrew Scott.
Anthony Julius
Why the laugh?
Sir Nicholas Mostyn
And James, you were played by a very young Jack Lowden, which is why I described you as handsome earlier.
Baroness Helena Kennedy KC
Andrew Scott was described as the “hot priest” in a very popular, Fleabag.
Sir Nicholas Mostyn
He was the hot… Fleabag, he was the hot priest, yes, well.
Baroness Helena Kennedy KC
The hot lawyer.
Sir Nicholas Mostyn
And, and, anyhow, I am the sternest critic of almost all portrayals on screen and stage of court cases, I am the most obsessive pedant, I spot errant gavels, the wrong robes, people sitting in the wrong places, people talking about the witness stand. I do, however, pronounce this film to have been very good on that score, it didn't unduly sacrifice actual court process and it told the story in a very engaging and arresting way so, if any listeners haven't seen it, I would recommend it.
So let me explain how this episode is going to pan out. In the first half, we're going to talk about this extraordinary case. In the second half, we're going to talk about the disturbing phenomena, the case confronted, and we're going to ask whether “plus ca change, plus c’est la meme chose”. So, as to the case, what did you say that was allegedly libelous? Now it's the function of a judge, of the judge in a libel case to determine what the words complained of actually mean. Nowadays, that's usually done at a preliminary hearing but back then it was part and parcel of the main trial and Mr Justice Gray ruled that the words complained of meant this. And would you like to read out what you've, what you've said you meant?
Deborah Lipstadt
Irving was an apologist for and a partisan of Hitler, who had distorted evidence by manipulating and skewing docs, documents to exonerate Hitler and to portray him as sympathetic towards the Jewish people. Irving was one of the most dangerous spokesmen for Holocaust denial, who on numerous occasions denied that the Nazis had embarked upon the deliberate planned extermination of Jews. He maintained that it was a Jewish deception that gas chambers had been used by the Nazis at Auschwitz as a means of carrying out such extermination. In denying that the Holocaust happened, happened, Irving misstated evidence, misquoted sources, falsified statistics, misconstrued information, and bent historical evidence so that it conformed to his neo Nazi political agenda and ideological beliefs.
Sir Nicholas Mostyn
So you didn't really pull your punches, did you?
Deborah Lipstadt
I don’t think so.
Sir Nicholas Mostyn
So there were…
Deborah Lipstadt
I wrote that.
Sir Nicholas Mostyn
There were, there were other offensive meanings found by the Judge, but these are the main ones. Now these allegations were, needless to say, were highly offensive. Obviously, they lowered Irving in the estimation of right thinking members of the public. They were therefore defamatory at common law, but, naturally, there are defences but if you rely on a defence, you have to prove it, and the defence adopted by you was then called justification and that was, the defence was that the imputation conveyed by the statement was substantially true. Okay. So that was the issue, and it was agreed that the trial would be heard by a judge alone, and it lasted nine whole weeks. And the judgment was reserved for only four weeks, was an astonishing 270 pages or 132,000 words and I always do this and point out that that judgment was the same length as Catcher in the Rye or A Clockwork Orange. It was a comprehensive victory for you, it was a pitiless destruction of the poisonous, deluded, fantastical pack of lies advanced by Irving, but it's difficult to do justice to its width or depth and erudition. Now, not only were the words complained or found to be true, but the judge also found, as a bonus, you might think, that Irving was an inveterate Holocaust denier, a racist, an anti Semite and a bogus historian whose credibility was shot to pieces. Now, for the benefit of our listeners, the judgment is so good, I would like to read out, I would like the panel to read out a few of the paragraphs which demonstrate the, what I've summarized about. First of all, in relation to being a Holocaust denier, Anthony, would you like to read that out?
Anthony Julius
It appears to me to be incontrovertible that Irving qualifies as a Holocaust denier. Not only has he denied the existence of gas chambers at Auschwitz and asserted that no Jew was gassed there, he has done so on frequent occasions and sometimes in the most offensive terms. By way of examples, I cite this story of the Jew climbing into a mobile telephone box cum gas chamber, his claim that more people died in the back of Kennedy's car at Chappaquiddick than died in the gas chambers at Auschwitz, his dismissal of the eyewitnesses en masse as liars or as suffering from a mental problem, his reference to an association of Auschwitz survivors and other liars or A.S.S.H.O.L.S and the question he asked of Mrs Altman, “How much money she had made from her tattoo?”
Sir Nicholas Mostyn
Mrs Altman was a survivor?
Deborah Lipstadt
Right.
Sir Nicholas Mostyn
Anti Semite, would you like to read that out?
Deborah Lipstadt
Sure. It appears to me undeniable that Irving is antisemitic. His words are directed against Jews either individually or collectively in the sense that they are by turns hostile, critical, offensive, and derisory in their references to Semitic people, their characteristics, and appearances. A few examples will suffice.
Sir Nicholas Mostyn
And James, would you like to read out what the Judge said about him being a racist?
James Libson
I have concluded that the allegation that Irving is a racist is also established for broadly analogous reasons. This is unsurprising for antisemitism is a form of racism. It appears to me that the sample quotations set out in paragraph 9.6 above provide ample evidence of racism. The ditty composed by Irving for his daughter is undeniably racist in putting into her mouth the words, “I'm a baby Aryan, I have no plans to marry an ape or arrest the fairies.” Similarly, Irving's reference to “one of them” reading the television news strikes me as evidence of racism of a more insidious kind. The same applies to Irving's proclaimed queasiness on seeing black men playing cricket for England.
Sir Nicholas Mostyn
And would you like to read out how he has, how he was demolished as a bogus historian?
Baroness Helena Kennedy KC
Well, it's a wonderful opening line from Rampton QC. My lord, mister Irving calls himself an historian. The truth is, however, that he is not an historian at all, but a falsifier of history. To put it bluntly, he's a liar.
Sir Nicholas Mostyn
And Charlie, would you like to read out what the judge said in judgment about him as a historian?
Charlie Falconer
For the most part, the falsification of the historical record was deliberate, and Irving was motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence.
Sir Nicholas Mostyn
So let, let's look at the trial. Have I Anthony, James, have I summarized the, it correctly?
Anthony Julius
Yes. Yes.
Sir Nicholas Mostyn
So, now in the judgment, which we've, we've all read, there is reference to you having criticised the judge for having been indulge, too indulgent to Irving, especially as regards his conspiracy theory, which was that the trial was a set a, a cons, a conspiracy, an international conspiracy by Jewish people against him specifically. Now did you criticise the judge for indulging, indulging them?
Anthony Julius
No. So, so, Irving's presentation through the trial was that he was essentially giving evidence of a protracted persecution of him by international jury for establishing the true facts in relation to the alleged Holocaust and he, he played the international Jewish conspiracy cards in a very strong way and there was a certain amount of eyerolling on our side, but nothing more than that. I think that, that, that the judge wanted to put a marker down that he wasn't simply giving a, a defendant's judgment and, and so he made it clear where he could, where it was possible that he was taking an appropriate distance from the defendant's perspective.
Sir Nicholas Mostyn
Charlie, how should a judge deal with a litigant in person like Irving?
Charlie Falconer
You've got to indulge him, I assume. You've got to make the people in court, and in particular the litigating person, feel that he's not losing this case because he's not got lawyers, and there are lawyers on the other side so, I would imagine it's my experience as an advocate that where you're a litigant in person or whether a litigant’s in person against you, the judge will repeatedly forgive the litigant in person for not complying with the rules. And had Gray, I'm looking at Anthony and James, had Mr Justice Gray been involved in the case before he got to trial?
James Libson
No. All of the interlocutory applications were heard by Masters.
Charlie Falconer
And what was the atmosphere like in court? Because it's an extraordinary case that it feels on one view to be completely untriable. How are you gonna determine what the position is in relation to these allegations? Reading his judgment, he deals with it in a very microscopic finding of little fact after little fact, which then produces a massive result. What did you think when the case started? How is it going to go?
Anthony Julius
Well, the, the line that we took from the very beginning was that this is going to be a trial of Irving's historiography and that was that that perspective was driven by two considerations. The first consideration is the standard litigator's one, which is whether you're defending or, or pursuing, you pursue. So you, you litigate the case as a claimant even if you're actually a defendant, you take the initiative, you run the case. So we ran the case against Irving on his historiography. That was the first driver. The second driver was that by focusing on his historiography, the quality of historical writing, we were able to stand up the primary allegation that he falsified the historical record. In that sense, all we needed to do was to go through a representative selection of his writings in order…
Sir Nicholas Mostyn
Yes.
Anthony Julius
…from our point of view to win the case.
Sir Nicholas Mostyn
I was interested that one of the examples that you use of his inaccurate, put it politely, historical account was not within the Holocaust, but was the bombing of Dresden. Who, who made the decision to use that as a, a key piece of probative evidence of his historical inaccuracy?
James Libson
I think, what we, Richard Evans, our lead…
Sir Nicholas Mostyn
Sorry. I’m sorry.
Baroness Helena Kennedy KC
I can’t see.
James Libson
…who is our lead expert on Irving's historiography, when we first spoke to Richard, he had said, well, he wrote some legitimate history and even Hitler's Wall, which is a book that came after the bombing of Dresden, was seen as a proper piece of historical writing in its first edition so he had some doubts and we went into the actual records and the footnotes, started, we didn't, our experts did and, and their assistants, and, and they saw that almost without exception, every single footnote was distorted and falsified. And then as if almost to test the proposition as to whether he was ever a legitimate historian, they went back to, to Dresden, which no one had really looked at, and they, they themselves were surprised to have seen the same pattern in that book and it sort of, it, it was the genesis, they that she approached it.
Deborah Lipstadt
And if I can jump in here just for one moment. I don't, I'm not a lawyer, I don't play one on television, but, I was the defendant, and I had many friends in the courtroom and, and journalists, some of whom had done their homework, some of whom didn't and some of them said to me, well, you're suing Irving. I said, no, no, no, I don't sue people but because they came into the courtroom and, and the man was on the defensive the entire time…
Sir Nicholas Mostyn
You had to prove the, you had to prove the truth.
Deborah Lipstadt
Yes. But, but the atmosphere was as if you didn't, hadn't done your homework, you might have thought you, you, which we were not.
Sir Nicholas Mostyn
So but now let's, let's…
Baroness Helena Kennedy KC
Just to go back to your original question because Charlie too goes off on on, on a, on a different route and I just wanted to go back to that business of his choosing to be unrepresented From the start and, and I think that that is another of the displays of, of this man's narcissism. His choice of was so that he could be somewhat unregulated, was to, if you like, disrupt in inside the courtroom and, and that I mean, I've seen that operating as, as others might who've had practices in other fields, might know that some that sometimes people are very active in choosing not to have lawyers because lawyers speak a language which can easily be disciplined by the, the judge's conduct of the trial, of the case and, and it's much easier to, to move the parameters if, if you're someone who's a nonlawyer and I also think that it, I mean I've seen it, for example, with abusers, who will choose not to have lawyers because they want to be able to cross examine, they want to be able to, to question the person directly and they and they want the theatre of that, and they want the performance of that and so my whole feeling about his choice was was, was, was a very deliberate one.
Deborah Lipstadt
It was ego. It was ego. Ego. I know this better than anyone.
Sir Nicholas Mostyn
This takes me on to the next point, which I'd like your views on, Helena, which was, is if you read the judgment of paragraph 3.7, it says, Irving has been greatly hampered in, in presenting his case by the unexpected decision of the defendants in full knowledge of the allegations which Irving was making about the conduct of Lipstadt not to call her to give evidence and to be cross-examined. It goes without saying the defendants were perfectly entitled to adopt this tactic but it did place Irving, acting in person, at a disadvantage. Now, there was a witness statement from you, you'd signed a witness statement and, and it was before the judge, I believe. And in those circumstances, the Civil Evidence Act 1995 says that where you would want to reduce hearsay evidence and don't call that, any other party may, with the leave of the court, call that the witness and cross examine that witness. That's what it says. Did Irving ask to cross-examine the professor?
Anthony Julius
No, no he didn’t. And the way the logic of the case ran, it, it, it was, I think, even clear to him that the allegations having been made by Deborah in her book, but which were then stood up by our experts at the trial, it would have been a distraction for him to cross-examine Deborah because he would still have to address the challenge presented by the experts and because of, to go back to Helena's last observation, because of the vanity that was driving this whole enterprise, he very much liked the idea of squaring up to Richard Evans, who was this authoritative academic figure that Irving both resented and could only aspire to.
Sir Nicholas Mostyn
Yes, and Christopher Browning would likewise.
Anthony Julius
And Browning too.
Sir Nicholas Mostyn
Yes and, and the film portrayed the, Evans getting much the better of Irving. Is that what happened in cross-examination, his cross-examination?
Anthony Julius
Yes.
Sir Nicholas Mostyn
So can I ask you, this decision not to call the, the defendant to give evidence?
Baroness Helena Kennedy KC
I’ve done, I’ve done that often in, in criminal trials, where if you really feel that, that you've, you know, got enough and, and are making enough headway and why would you call Deborah to, to give evidence when, when you can, when you're seeing yourself that you've got terrific experts that they, that you’ve really got the, the, the other person on the run? Why would you do that? I mean, you, you, you basically heighten the thing by saying look at this case, you know, here, here is a man, he, he’s suing this woman and, and, and yet examine what he’s been saying, examine his claim, claim at scholarship, examine his, his claim at truth. Are we really talking about someone who’s truthful? And so, I, I just think that it was very much…
Sir Nicholas Mostyn
But should the judge, if the judge, the judge said that not calling the professor did play serving at a disadvantage. Do you think the judge has duty to say, I think, sorry, you have to go and give evidence and be cross-examined?
Baroness Helena Kennedy KC
No, no, no, of course not because, because there’s no requirement to force people into witness boxes but usually, you feel in cases that you're obliged to do so. But here, it was saying, listen to the experts, you know, make a judgment of your own. I, I, I would have, I would have done exactly that and I would do it in other cases.
Charlie Falconer
Presumably, he was disadvantaged because he had some great prepared cross-examination that was gonna, gonna hit, is off the target in some way, and he was, that's what he'd prepared in some shape or form and therefore he judged it saying he's disadvantaged because he couldn't play it in the way that….
Sir Nicholas Mostyn
But he was entitled to say, I want to cross-examine her.
Charlie Falconer
But the basic, as I understand it, and James and Deborah and Anthony will correct me if I'm wrong, you'd gone through his writings. there's a hell of a lot about his book about Goebbels, in which is a distortion of the truth and I assume lots of that stuff had not been referred to in Deborah's book and therefore Deborah couldn't say much about the detail of the way, for example, he had totally distorted what happened on Kristallnacht by relying in particular on Goebbels' own diaries and, and that was something that Deborah couldn't help on because what Charles Gray does in his judgment, he goes through each of these allegations of crooked history where what Irving does is select one fact, ignoring twenty facts that point in a different direction. Deborah doesn't deal with that in detail in her book so what's she going to be able to add to that particular debate?
Baroness Helena Kennedy KC
Can I, can I just ask? I mean, did he complain that he'd been denied the opportunity?
Anthony Julius
No. It’s what I, I was just thinking as I was listening to you. Actually, it was one of those slightly random remarks that the judge made that, that weren't actually, that, that weren't rooted in anything that happened in the trial itself.
Sir Nicholas Mostyn
Now, the film makes quite a, a great, makes a deal out of the decision not to call any of the survivors. Now what did and, and Rachel Weisz playing you, is very upset by this.
Deborah Lipstadt
Right. That's a bit of…
Baroness Helena Kennedy KC
Dramatic license?
Deborah Lipstadt
Yes. There you go, there you go. I think, and I’m going to see David Hare tomorrow so I’ll ask him and I’ve asked him before, but he needed a dramatic arc and there was no dramatic arc in what I thought of David Irving, I thought he was an, an, you know, no good before, no good during and no good after and you could be more creative in the words. So, and in my book on the trial, which, on which the movie is based, I do say that at the beginning I assumed we would call survivors but Anthony explained to me that, and said to me, no, we won’t because this is, we don’t want to make this a trial about proving the Holocaust happened, we wanted this to be a trial, which I guess is standard operating procedure in a libel trial, not having been in one before and hopefully never again, that, that this is about proving that he lied. So, if we call survivors, they are witnesses of fact as opposed to expert witnesses and you open up the whole case of well, did you see this? Didn’t you see this, etcetera? And the other reason, which of course is a non-legal reason, which I understood completely, is that we assumed that David Irving’s, we didn’t have fact but we assumed that he might, his intention might well be to humiliate the survivors, confuse them, you say you were here and this happened there etcetera so, when Anthony explained that to me, I said I get it and we left it alone but I think David Hare needed that…
Sir Nicholas Mostyn
And you explained about the left, right?
Deborah Lipstadt
Yes. So, one of, you know, you could say, you could say, I got off the train at Auschwitz and I turned left and went to the place where Dr Mengele or one of the other doctors were deciding you go left or right, live or die. Well, if you've, any of you have visited Auschwitz, the train would, the train came in, it was a, into the centre of the camp and the place where the doctors stood was in the middle of the train so some people got off the train and did turn to their left.
Baroness Helena Kennedy KC
They’d have to walk bac.
Deborah Lipstadt
And then some people got off the train and did have to turn to their right. So, you know, those kind of things but if I got off the train, and I wouldn't know that and if, David Irving, I'm staying, and then an older person standing on, in the witness box, does, you know, and, and he says well, that other survivor was on the same train, said he turned left and you turned right, but it, it probably was true.
Sir Nicholas Mostyn
One of the survivors was Mrs Autman, who was played by Harriet Walter in the film, I think, and hid, hid, we’ve seen a reference to him making, mocking the fact that she had the tattoo on her arm.
Deborah Lipstadt
She was Australian, and this happened actually in Australia, I believe, where, she decided to, to engage him in a, in a debate and he said, he pointed at the number tattooed on her and said, and said something to the effect of how much money have you made off having that tattoo?
Charlie Falconer
That, that was shown to Charles Gray because he refers to it.
Deborah Lipstadt
Yes. Yes. It was in, it was in, it was in the material that was presented in court. I don't remember what…
James Libson
Irving kept a lot of vanity documentation about himself so, videos, cassette recordings, really old fashioned media of all the meetings that he had addressed in lots of different places, Canada and Australia being particularly good audiences for him and so, so a lot of the material would come from stuff that he himself disclosed to us in the discovery process.
Sir Nicholas Mostyn
But we're gonna talk to that because we've read out that ghastly ditty that he put in his daughter's mouth. But you discovered that, I think, during the discovery process. Now just for the benefit of our listeners, I should explain what discovery used to be like, which is that you would list all the documents that were relevant, and then they would be placed in a room and people like you, James, would go and read the documents and make notes about what they said because they didn't, this, this was invented before photocopying. What happened? It was a traditional, old fashioned discovery process in this case, wasn't it, James?
James Libson
Yeah. It was even, it was even more old fashioned than discovery processes that were happening at, at that time because so much of the material was archival material, even historical archives that he had got. He, he was, what, what he was very, very good at, he was a very good German speaker, and he, and he took old Nazis into his confidence, and he was very good at going and getting material that no one else got their hands on, which he had kept to himself and also going into archives and persuading people to release material, even sometimes taking it, and also all of the material that he had collected of himself, addressing meetings and it was all stored in a very ramshackle way. We had had the original interlocutory application, which Anthony had done the advocacy for, and Irving could sort of throw his hands up at the burden of discovery and he said, just come in and have a look at what you want to have a look and so we had, he did do a list, but it was a list of my recordings, my letters, my diary.
Sir Nicholas Mostyn
My diary.
James Libson
And that gave us access to the entire diary as soon as he listed it like that and so we went into his flat for about three months every day, me and a colleague from here and two of our researchers, our historical researchers, and just started looking at all of the material, including the diary and reading the diary. He kept a, a very, very full diary of and had done so for, I think, thirty or so years.
Charlie Falconer
Boring question. So you got all that material by looking at his stuff and did you then take photographs, or how did you get it into court so that you could prove that it was there?
James Libson
So, again, we had to go back. I think, I remember it right. we had to go back to the master because we were arguing with him about how to get the material and in the end, the order was that he had to release all the material to us on our undertaking and so that we could photocopy it, get the videos transcribed and all the rest of it. So we took it all away from his, his flat.
Deborah Lipstadt
But with limitations. I could never look at it. Right.
James Libson
Yes.
Deborah Lipstadt
Went down to the room that was in the basement, you know, I couldn’t even go into the room.
Sir Nicholas Mostyn
Yes, that, I don’t understand why you weren’t allowed to look at the…
Deborah Lipstadt
I didn’t either. But that, you know, wasn’t my decision.
Charlie Falconer
And so was the court filled with all this documentation? Or copies of this documentation?
James Libson
Well, there were trial bundles with copies of all of the material. The, there must have been about 120 trial bundles with all of the material that supported the exerts’ reports, which included that material and there were probably six or seven sets of 120 bo… bundles in the courtroom. We had to move courtrooms on the, I think, after the first day because there wasn’t enough room for the bundles.
Charlie Falconer
And, and that ditty, “I am a baby Arian”, was that put by Richard Rampton to David Irving and what did he say?
James Libson
He, as I recall, he sort of laughed it off. It, what, what he did when he was cross-examined, and this was true both of the vile sort of racist and extremist material that we were putting to him but also of the distortion, was that at the moment that the question was asked, I think in the very moment he could see how damaging and offensive it was, but very, very soon after, as sociopaths can, he was able to explain it away and then he was very, very able to cleave to that explanation thereafter and that, that was more pronounced when Richard Rampton put to him a distortion of the historical record and he said this is a mistranslation, and Irving would see it, he could, he knew it was a mistranslation, he was a better German speaker than anyone else in the court and he knew it was a mistranslation, but he would give an explanation and then I think shortly after that, he would believe that explanation and would repeat it.
Baroness Helena Kennedy KC
That, that, that's a, it's a very interesting commonplace that people who lie and have an account of something can themselves become almost, I mean, there is a sort of delusion where they can actually persuade themselves in the most convincing way that something, that something is, is right.
Sir Nicholas Mostyn
Yes. That leads me on to what I've described as the judge's wobble. Now in the film, this is portrayed as the judge had, during the final submissions of Richard Rampton, suddenly saying, but what happens if Irving believed all this to be true? Genuinely, authentically believed all this to be true. Surely then, you, your defensive justification can't succeed and, in the film, it was portrayed as if this stunned silence and then wrapped in…
Deborah Lipstadt
That's partially because that's how I wrote it up because I was stunned by it, you know, they had to carry me out of the courtroom practically. Find me full of scotch or something. But because he, he said if, if, if Irving believes this, can you call him an antisemite? Now if you believe that a person of colour is, you know, less capable than a than a per, a Caucasian person, even if you believe it, it's still racist. If you believe, you know, that Jews are, you know, won't, infill what and then conspiracy, it’s still antisemitic but yeah, I, I talked to Richard Brampton, he was one of the people who plied me full of scotch afterwards and he had a great supply in his chambers. And he said he believed that the judge was looking for language to how to explain this and, and, but for me it seemed like the whole thing was going to fall down around that.
Anthony Julius
I've got a slightly different take on it. I think what, what the judge was talking about at that point was whether Irving believed that he was the victim of the international Jewish conspiracy. But, but I think the judge then reminded himself what the actual issues were in the libel case, which actually were not about the existence or otherwise of an international jury conspiracy and realised that actually it was an irrelevant consideration for him, which, which then didn't find its way and it was…
Sir Nicholas Mostyn
It wasn't, it wasn't referred to in the judgement.
Anthony Julius
No because it, it, it was, it was unrelated to all the tasks in front of the judge in writing the judgment.
Charlie Falconer
He, the judge had said what the meaning was and if the meaning was…
Anthony Julius
Yes, and it doesn’t, the conspiracy doesn’t figure in there.
Charlie Falconer
Irving was an apologist for and partisan of Hitler. In denying that the Holocaust happened, Irving misstated evidence. Whatever he might believe is irrelevant. The question was, had he misstated evidence? Was he an apologist for and a partisan of Hitler?
Deborah Lipstadt
I know when I wrote about him that he was a, an apologist and a partisan of Hitler etcetera but I had no conception of to the degree to which he twisted history. Yes, the, the Himmler diary of that, of, of when he goes to meet with Hitler and you transport out to Berlin kind of look we’re, where, where, where Himmler writes that Hitler told him this one particular train load of Jews from Berlin shouldn’t be ex, annihilated, shouldn’t be murdered and it was unclear why he said that, where there was someone on the train or whatever but Irving takes that one sentence and turns it into, he, he, he told them to stop killing Jews. Of course, if you tell them to stop killing Jews, you are killing Jews but that we knew about. Other historians said but the degree to which he distorted so many other things we didn’t know and that was one of the genius things of this trial, you know, of these historians that we had and calling these historians, is that they combed his work and they followed not the money but the footnotes back to the sources and Richard Evans says something to the effect that, you know, and as did Christopher Browning, Robert Jan van Pelt, Peter Longerich, that in virtually every case that they, when they filed they found some sort of distortion, James has just mentioned it earlier, either a lie, an exaggeration, a reversal, and you found it over and over and over again and the man, in his ego and in his antisemitism, in his hatred of Jews, his contempt that it was a woman, an American woman who brought him down. That was, that was the other thing.
Sir Nicholas Mostyn
American Jewish woman.
Deborah Lipstadt
Yes. And, that, that, any sane person, I won’t say it because that means but, any, any person who wasn’t as consumed by his hatred and his antisemitism as this man was and his adulation of Nazis and Hitler, would have said I’m not going into this because it’s going to open me up, but he, vanity, vanity.
Baroness Helena Kennedy KC
Deborah, I'm really interested to because you, if anyone knows, you will, is, is his work in any way circulating amongst the sort of extremist right in America?
Deborah Lipstadt
There are some far, not historians, not historians, but there are some far right wing podcasters and, you know, people who've created their own, you know, where, who are engaging in this kind of, distortion. They're few and far between, but they have their following on the far right.
Baroness Helena Kennedy KC
And do they know his work? I mean, I just wondered…?
Deborah Lipstadt
I don’t think they cite, I don't, they, as far as I know, they don't cite his work.
Sir Nicholas Mostyn
But okay. Well, we're gonna talk about that in part two in just in a minute, but I just want to, so you won. Did you, did you get an order for costs?
James Libson
Penguin got an order for costs.
Sir Nicholas Mostyn
And was it paid?
James Libson
It wasn’t paid. He was made bankrupt.
Sir Nicholas Mostyn
He was made bankrupt so the slightly satisfying. But you, you said that your, your fees, he never actually, because he goes bankrupt, you never recovered any contribution to your fees?
James Libson
No. We didn’t recover any contribution to our fees, Penguin didn’t really recover any contribution to their fees, there was an issue in the bankruptcy because a trustee was appointed about the value of his archive and whether there was any value in the archive or whether, you know, we wanted to participate in the archive actually attracting any money and sort of where it, where that type of material would go to, but I think it, it turned out to be nothing, they, they raised nothing from it.
Sir Nicholas Mostyn
I see. And was there an appeal?
James Libson
There was an appeal.
Sir Nicholas Mostyn
And was it, what happened?
James Libson
He lost.
Sir Nicholas Mostyn
But did you, did you, did you appeal on the appeal, Anthony? Or did Richard Brampton appeal?
Anthony Julius
No, we, yes, we did it, we did it together. I actually was the, I was the junior counsel on the case as well, I became a solicitor advocate in order to appear for Deborah in the trial. He, he had, on the appeal, he had solicitors and, and counsel.
Sir Nicholas Mostyn
Oh, he did?
Anthony Julius
But they, yes, but they essentially tried to relitigate the trial and failed.
Charlie Falconer
Right. What, how, I mean just you’ve done lots of other cases, I’d be really interested in Deborah’s view of what the experience was like. How do you two lawyers reflect on that case? Do you think there was no case like it or it showed the best of the English legal system or what? What was the experience like because I can’t imagine what it would have been like doing it? Did you think you were engaged in history?
Anthony Julius
No, no because I thought it was impossible to say in the long view whether it would be an important case or an unimportant case. I mean, in a sense that’s the nature of living in these events, they feel like blizzards but whether they actually matter in the kind of general meteorology of world is a, is a question that you’re not in a position to make a judgement on. However, there was one very distinctive quality to this, which was a certainly, I had the sense that this was a case that we would not lose because it seemed to me the clearest possible case of justification and, in that sense, although there are a lot of Americans saying, isn't it terrible that, that you have to prove yourself the truth of it? Why is the burden on you? Why isn't it the burden on the, and so on? I felt that we were more than equal to meeting the challenge and we could wear the fact that we met the challenge as a badge of pride.
Sir Nicholas Mostyn
So the film portrays your character as decide, making decisions that, that, and we're not going to make history here, we're not going to do any, we're only, the entire strategy from beginning to end is to win. Nothing else. And it implied that it was a bit of a 50:50, which you had to pull out all the stops and strategic, forensically, you had to win it and that you weren't going to allow any distractions, like, for what might be perceived as distractions, like, such as evidence from survivors, but it seemed to me reading the judgment that it wasn't like that at all, that…
Anthony Julius
No, I mean it would be a, certainly an odd position for to take that winning the trial was not a priority.
Sir Nicholas Mostyn
Exactly. Fair enough. Anyhow so those, that’s… Do you have any further questions about the trial?
Charlie Falconer
Yes, to Deborah, on a, on, I mean obviously you won, can you give us a flavour of what it was like being in court during those nine weeks, when you didn’t know that you’d won?
Deborah Lipstadt
I, I, I didn't… first of all, the nine weeks were, were excruciating, excruciating because here I was sitting ten feet from, maybe I don't know if that, if that much, from a man who was engaging in the most vile antisemitism, racism, talking about the, the, the, the women who worked for him, talking about a newscaster who was black and, you know, and, and the hardest thing and the thing that my friends think is a miraculous thing and a, a force of nature or that these gentlemen were forced that kept my mouth shut because was it unnatural?
Charlie Falconer
That's right.
Deborah Lipstadt
Unnatural act for me, and that was, that was very difficult listening, but hearing the hatred up close and personal, I've studied it my whole life, I read it, I just spent three years at the State Department dealing with it, but sitting there and listening to this man say these things and knowing that he, the gallery was very often filled with his followers or they would be in the hallway as I walked out and the glee with which they embraced this hatred of Jews, this, this the, the sort of self-fulfilment it gave them, the pleasure it gave them was, I knew about it, I’d read about it, I know, I read people's writings about it, but to see it, as I say, you know, as the up close and personal was, was really overwhelming.
James Libson
Just, just two other points on the, just to answer Charlie's question. I do, I agree with Anthony but, but during the case there were lots of things that even as a relatively young lawyer, distinguished it and you knew it was different and special and, and two of them in particular, one is that the actual trial, nine weeks, most trials, I'm sure you know, are really boring.
Charlie Falconer
Yes.
James Libson
Yes. And there wasn't a moment of it being boring and there were some days which were absolutely electrifying and in particular, the days when Robert Jan van Pelt was giving evidence about Auschwitz and he was being cross examined by Irving and the days when our expert on right wing extremism, a German academic called with, Hajo Funke, was giving evidence and, and then Irving was cross examined on his right wing extremism and all the material that we see were, as I say, electrifying and, and you, you knew that at the time. And I think the second aspect is, again, who has the privilege of a case where your experts are six of the leading historians and political scientists in the world when mostly were instructing forensic accountants and…
Baroness Helena Kennedy KC
Speak for yourself.
James Libson
And it, it, it was a, that was a real privilege, and a privilege that you were aware of as it was happening.
Deborah Lipstadt
I think there was something else also, and this made Richard Rampton cry at the end, on the day of the verdict. He'd gone out to dinner with Robert Jan van Pelt and a couple of others, I was at the BBC, I think James and I had gone to the BBC. The survivors came and thanked him.
Sir Nicholas Mostyn
Well, that might be a, a suitable moment to end part one unless anybody's got any further questions because we did say we would spend fifteen minutes, a bit of time, talking about the sort of the ramifications of this and the, I've, I've four questions have been posed. I'll read the first one out and we'll discuss it.
So, there is a global rise in prejudice and intolerance, antisemitism, xenophobia, Islamophobia. What factors are driving this increase? How can we equip individuals and societies to confront and combat such prejudice effectively? Charlie?
Charlie Falconer
Well, I think two things. One, the failure of politicians. We can't deliver anymore and because we can't deliver anymore, people are much more willing to believe that bad things are happening to prevent them, as it were, getting what they believe they're entitled to. And then secondly and separately, the ability of people to communicate with huge numbers of people, social media, in such a way that any line can be immediately transmitted to huge quantities of people without there being any filter or embarrassment about whether it's true or not. Those two things together have made politicians aware that they can tell any lie and probably get away with it and I have in mind President Trump when I say this because he has said very obviously false things, I mean, take a very simple example, there was no better attended inaugural than the first inaugural in 2016, this despite the fact that you could see rows and rows of empty seats before you, yet he has absolutely no inhibition about saying that because he knows people are wanting to believe him. So I think the level of untruth has become much stronger, the ability to say it without being contested has become easier because people want to believe somebody like Trump, and he has an answer.
Baroness Helena Kennedy KC
I mean, I do think that the megaphone of social media has been quite an extraordinary development in relation to all of this and, and and, you know, we're, we're, we will pay, we will pay a price for it in the hatred spreading and, and in the dishonesties and, and also that it's, you know, the, the, the, the in-depth study of things is, is becoming less of a, of a commonplace that people are happy to receive things in short form.
Anthony Julius
I've got a slightly different view. The, the, the 18th century German Jewish philosopher, Moses Mendelson, said, I don't know with what knowledge or insight, but he made this claim that in every generation, there's roughly the same amount of, of virtue and vice. So, so, so and it kind of makes sense, doesn't it? So the question is, where, where do we stand in this generation? My instinct is that it's not an alarming rise, that's not the way to think about it. The way to think about it is a reversion to the norm. I think in the generation or two after the Second World War, there was a recoil from the, the kind of racist, of antisemitism and all the rest of it that, that was endemic and had been endemic for generations and generations and generations, and the recoil was in part generated by the spectacle of where that kind of hatred leads, in part, and in part by the kinds of petrified geopolitics of the Cold War. So, so, people forget about the Holocaust and the other horrors of the Second World War, and the Cold War itself dissolves into a much more multipolar form of, forms of conflict and then we revert to the levels of xenophobia, hatred, and all the rest of it that were just standard for centuries in Europe and elsewhere in the world.
Charlie Falconer
Indeed, I mean that's interesting and I think there's a lot of truth in what you say. It's not just though is it a recoil from the horrors of the mid-20th century, is it not also a sense of economic growth making people feel better and richer?
Anthony Julius
Also, the, the new generations following the war.
Charlie Falconer
And then when you end up from about 2008, 2009 in an economic downturn and inability to deliver on economic expectations, the people of Britain thinking, lots of them thinking something's wrong with my economic fate, therefore, Brexit is…
Deborah Lipstadt
Well, it goes back to the fact that antisemitism, unlike other prejudices, so it, one of its distinctive features is that it's a conspiracy theory.
Charlie Falconer
Yeah.
Deborah Lipstadt
Jews are conspiring, you know, most, most prejudices, certainly racism, you, you punch down the person that, you know, it’s okay as long as they know their place. They don't get in, in America, they used to talk about black people who improved or they were “uppity”, in other words, they were trying to rise above their station, which is below yours. So you do have that with antisemitism, that the Jew is dirty and, and disgusting and, and whatever, and usually directed today at ultra-Orthodox Jews, but you have another element that you don't have in the others and that's punching up, that the Jew is all powerful, he's engaged in a conspiracy to hurt me.
Sir Nicholas Mostyn
Yes, which is true.
Deborah Lipstadt
And must be stopped by any means necessary. So, if this conspiracy thing, if you're in an economic downturn or there's Covid or something happens to you that's inexplicable. What was it, Conrad Rentor used to say you can't blame the bicycle riders because people will think you're crazy if you say this was all done because of, but if you blame the Jews, even the person who doesn't think of themselves as an antisemite says, oh, yeah, I've heard of that before and so that.
Sir Nicholas Mostyn
Yeah. I, I, your witness, Christopher Browning, you remember him very well.
Deborah Lipstadt
Very well.
Sir Nicholas Mostyn
And he wrote in the New York Review of Books, yes, last week on the April, April 10 issue, he reminded us, and I’d forgotten this, that Trump, who at the moment is putting himself up as the standard bearer protecting Jews in universities when accusing universities of being anti… in 2016, his election campaign, he had two ads, one featured Hillary Clinton against a background of $100 bills and a Star of David, and another promising protection against global special interests and featuring the portraits of three Jewish financiers, Janet Yellen, George Soros, and Lloyd Blankfein.
Deborah Lipstadt
That's right.
Sir Nicholas Mostyn
So it's, it's exactly as you described, isn't it? And, I mean, that's presidential, presidential candidate in as recently as 2016 using these lazy tropes to try and get himself elected. And…
Deborah Lipstadt
And they land, they land with some people, they land, they land certainly with people who are inclined who have inclined before or, and you can't you, can't have gone through life without you know, if you're the least bit aware of the world around you without having encountered these things, so it makes sense.
Sir Nicholas Mostyn
Now we've got five minutes left before we have to finish and there's this important question, which is the balance between free speech and the risk of having fake news, intolerance and prejudice increasing. How do, how do we strike that balance, Professor?
Deborah Lipstadt
I think look, I, I believe in free speech, I’ve, I've always, during, before the trial, leading up to the trial, since the trial, I'm against laws that outline Holocaust denial, I'm against government getting involved in what you can say in terms of opinion etcetera. That, of course, you know, there's incitement and, and other things and slander and libel, you know, which, which cross that line so, I'm, I very much, I stand in that regard, but it calls upon leaders of governmental officials, intellectual leaders of universities, people of stature and for the person on the street to call it out. It only works if people say, you know, this I, I have to speak out and I have friends on the right, the political right, yes, I do, who see antisemitism on the political left where it is thriving, and they are correct and they call it out and I have friends on the left who see it on the right, and they too are accurate. The problem is neither of them see it right next to them from people who share their political beliefs and their political 51.19 world view. And if you don't call it out with the people with whom you share other views, then I have to say, you're calling out on the other side of the political transom, you're, you're weaponising it, you're using it as a political weapon.
Charlie Falconer
But don’t you need law? Just calling it, Anthony is right when he says it's 50:50, bad and good.
Baroness Helena Kennedy KC
Yeah. Well I, I don't go along with a 50:50, bad and good. I, I, I think, I, I’m still a believer that you can, that, you know, we have our better angels as long as we speak to them and that you actually can, you know, produce societies, I, I have to believe this. That, that, that are going to be better than they have been and that we can foster tolerance and so on, but what I feel where I agree, and I always was so impressed, Deborah, when you, you, that you spoke about this, is that once you do as Austria did, and I, and I have to tell you that if in, in identifying anti Semitism, I have gone to Austria and I've heard the sort of heel clicking in my imagination because my, my mother-in-law was a refugee from, from Austria and when I've gone back and we had to find the, the, the cemetery where, where her relatives were and so on, the Jewish cemetery, you couldn't get a bus to it because the buses didn't go that far, they stopped short of going to the Jewish cemetery and it was, it was, I could sense that, that, that there was still a problem and yet they have a law that forbids, for denying the Holocaust and I remember you speaking out about somebody who was being jailed for, for…
Deborah Lipstadt
David Irving.
Baroness Helena Kennedy KC
Was it David Irving?
Deborah Lipstadt
David Irving was jailed by the Austrians for denying the Holocaust, then when I said I don't believe it at The Washington Post, an editor at The Washington Post said, that's the ultimate man bites dog still story. And I, for one, and this was after the trial, but but yeah, no, but look, what is it? Foolish, inconsistencies or hobgoblins of, of small minds and politicians, one American pundit once said. I can understand why Germany has a law against Holocaust denial. I can understand why Austria has a law against Holocaust denial.
Baroness Helena Kennedy KC
I can help with with, with dealing with antisemitism, which is quite clearly present and we see it in their far right party.
Deborah Lipstadt
It doesn't mean itself, I can understand why in a place, especially Austria, I mean, the, the Hitler and all his phonies were mainly from Austria. That doesn't look…
Sir Nicholas Mostyn
But it is a strange fact, as David Cole pointed out on one of our previous pod podcasts that you can stand in the street in the United States with a placard saying, “Death to all Jews”, and that's no crime but it's a hate crime.
Deborah Lipstadt
It should be Intolerable, it should be intolerable. That's the problem today and I think Anthony was, it's become normalised, it's become okay. Now maybe it was okay and just we had two or three decades after more than that after the Holocaust where it wasn't okay. The problem is in the public at large, see on the streets of London and some of the demonstrations, things are said which, which are unfathomable.
Charlie Falconer
I mean, we, we know from the Rwandan genocide that vilifying a particular racial group then led and facilitated the genocide that followed and then…
Deborah Lipstadt
All genocides begin with words.
Charlie Falconer
Exactly. Exactly.
Sir Nicholas Mostyn
Well, that's been a very interesting, as I always say, a very interesting episode. It's been an innovation for us, hasn’t it, we haven't done any, one with a… we’ve never been, we’ve been very well behaved, they haven't hissed or booed and it's been a great pleasure to have you up here participating in our podcast so, I’m going draw this to a close and say thank you very much to our guests. Do you want to say something, James?
James Libson
No, I was just going to say thank you.
Sir Nicholas Mostyn
And as 55.05 says, it’s goodbye for me, Nicholas Mostyn.
Baroness Helena Kennedy KC
Goodbye from me, Helena Kennedy.
Charlie Falconer
And goodbye from me, Charlie Falconer.