Irving v Penguin Books & Lipstadt1996-I-1113 (QBD)
Bateman statement
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Holocaust Denial on Trial, Statement of Mark David Bateman: Electronic Edition

Mark David Bateman · Holocaust Denial on Trial electronic edition, 2006

I, MARK DAVID BATEMAN of Davenport Lyons of 1 Old Burlington Street, London W1S 3NL will say as follows:-

1. I am an Associate in Davenport Lyons, Solicitors for Penguin Books Limited (‘Penguin’) which was the First Defendant in this action. I have had conduct of this matter at Davenport Lyons under the supervision of my principal, Kevin Bays since the Claimant issued and served his Writ against Penguin and others in September 1996. The contents of this witness statement are derived from matters within my own knowledge save where appears otherwise from the context.

2. The Claimant has applied for permission to appeal against the judgment of Gray J (bitting without a jury) delivered on 11 April 2000. Gray J refused permission to appeal. In August 2000, the Claimant served a skeleton argument, setting out detailed grounds of appeal. The Defendants responded with submissions in September 2000, to which the Claimant replied in October 2000. Sedley LJ refused permission to appeal on those grounds, having given the papers detailed consideration, on 18 December 2000.

3. The Claimant now renews his application for permission to appeal at an oral hearing. He has also applied for permission to adduce new evidence at the hearing of his application for permission to appeal and, should permission be granted the appeal itself. The Claimant first intimated to Penguin that he intended to apply to adduce new evidence at a hearing in the Court of Appeal on 17th January 2001. The Court set a time-table with respect to any new evidence and on 1st March 2001, the Claimant served the witness statements of Germar Scheerer, more commonly known as Germar Rudolf (‘Rudolf’) and Zoe Polanska-Palmer.

4. For new evidence to be introduced at the appeal stage, the Claimant must fulfil the requirements set down in Ladd -v- Marshall [1954] 1 WLR 1489 at 1491. There are three requirements: (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) that the evidence must be such that, if given, it would probably have an important influence on the result of the case although it need not be decisive; and (3) that the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

5. Penguin submits that, so far as Rudolf’s witness statement is concerned, the Claimant cannot fulfil the first requirement of the Ladd -v- Marshall test. The evidence was available and could have been adduced by him at trial. This statement concentrates on this point, although the other two requirements are dealt with briefly at paragraph 96. So far as Polanska-Palmer is concerned, Penguin submits that her evidence would have had no conceivable impact on the outcome of the case. I return to her witness statement at paragraph 97.

6. So far as it is necessary to do so, Penguin will seek to rely at the hearing of the Claimant’s application for permission to adduce new evidence upon the witness statements served on 27th April 2001 on behalf of Professor Lipstadt, who was the Second Defendant in this action. Those witness statements are from Professor Robert Jan van Pelt (who gave evidence at trial), Dr Richard Green and James Libson. I have sought to avoid repealing matters set out in those statements, except where it is necessary to do so

7. There are 4 exhibits to this statement which are now produced and shown to me marked “MDB 1”, “MDB 2”, “MDB 3” and “MDB 4”. “MDB 1” contains a chronology of Rudolf’s contact with Irving and supporting documents. “MDB 2” contains correspondence with the Claimant’s Solicitors about the evidence the Claimant seeks to adduce and, in particular, about the sources for the Rudolf witness statement. “MDB 3” contains three documents downloaded from the Internet: the ‘critique of the Judgment of Mr Justice Gray’; the ‘critique of the van Pelt report Jan-Feb 2000)’; and the ‘critique of the van Pelt report Jan-Apri1 2000)’. “MDB 4” contains copies of other documents refereed to in this statement, mainly source material for the Rudolf witness statement.

8. This witness statement intends to show the following:

Availability of the Evidence: Rudolf

9. Before looking at the Rudolf witness statement in detail it is important to note that the Claimant’s counsel, Adrian Davies stated at paragraph 6 of his Skeleton Argument in support of the application to adduce new evidence (1st March 2001) that the Rudolf witness statement is ”founded upon the same author’s earlier analysis of the improbability or outright impossibility of the established historiography of Auschwitz”. Rudolf’s “earlier analysis” was published as the “Rudolf Gutachten” (‘Rudiger Kammerer, Armin Solms (ed.), Das Gutachten, Gutachten uber die Bildung Und Nachweisbarkeit von Cyanideverbindungen in den ‘Gaskammern’ von Auschwitz’) in 1992 (in German). It is clear that the Claimant was aware of Rudolf and his report from an early stage (see MDB1). An English version of the full Rudolf Report was available from 1993. Further, the Claimant made a ‘complete illustrated copy’ of the Rudolf Gutachten available through his own website (ww-wipp.co.uk) in July 1999. (I note that according to Rudolf, his Report was ‘freely accessible on the Internet since end of 1997’: see MDB 3 tab 2 page 1 6). However, the Claimant never applied to adduce that report in evidence at trial He could easily have done so. There is no explanation of his failure to do so.

10. I note that at paragraph 8 of the Claimant’s counsel’s skeleton argument of 1st March 2001 he suggests that the Claimant handed up a copy of Rudolf’s report to Gray J and that (paragraph 9) ”to that extent the Rudolf Report was probably in evidence anyway” the Claimant, at paragraph 1 of his witness statement of 28th February 2001, says that he ’put in evidence before the court the published version of a scientific rrport which he had written’. It is hard to see how a Claimant can apply to adduce as fresh evidence a report which, on his own case, was handed to the trial judge in the course of the trial. However, what was handed up to the judge was not the full Report (which is over 100 pages long), but a 16-page document ”A Scientific Sensation: The Rudolf Report: A discussion of the Rudolf Report on the Formation and Demonstrability of Cyanide Compounds in the Gas Chambers at Auschwitz, with additional research findings on the Holocaust”, published by Cromwell Press in 1993 a copy of which is at MDB 1 tab 3 (the second page of which refers to the availability through the same publisher of the 120-page full Report in German. The Claimant is a fluent German speaker). The Defendants made no objection to that document being put before the judge but did make clear that this document was not The Rudolf Report (see trial transcript Day 9 pages 24 and 23).

11. It is clear that the Claimant could have applied to put in evidence the full Rudolf Report, had he wished to do so. Moreover, it appears that he could have brought Rudolf as a witness to the court, had he asked. The Claimant says nothing in his witness statement about any request to Rudolf to give evidence, stating only the Claimant’s own conclusion that it would have been ’impractical’ to call him at trial, in view of the ’personal risks’ to which he would have been exposed if brought to London. It appears, however, that Rudolf would have been willing to appear as an expert witness. Rudolf has written about the Claimant’s request (to which he acceded) that he give evidence at trial; that first request, made in 1996, was not followed up by the Claimant. In 1999, Rudolf supplied assistance to the Claimant, which the Claimant received before cross-examining Professor van Pelt. Then in January 2000, it appears that the Claimant asked Rudolf to attend the trial, to give technical assistance as an adviser, but did not ask him to appear as witness. Rudolf confirms that he would have been willing to appear as a witness, had he been asked to do so (see MDB 1). In his witness statement, Rudolf says this (page 333) (emphasis added): “‘When David Irving asked me January 2000 to assist him during his trial as an expert sitting at his side, to help him answer scientific and technical questions, I declined. I knew that I was a hunted man in England, so the risk for me if I appeared was high. I would have risked appearing in answer to a subpoena, as I believed (whether rightly or wrongly, as a matter of law) that if I appeared in answer to a subpoena, I would have had some rights at least as long as I was in the witness stand. Appearing as a witness, instead as a private adviser on Irving’s side, also would have had the advantage that I could have presented my findings for the first time in front of a court of law and a wider public, which alone is worth risking my freedom.””

12. It appears that what is said in Adrian Davies’ skeleton argument (paragraph 7), namely that the Claimant ”did not seek a direction for leave to adduce Rudolf’s expert evidence, because he knew that Rudolf would be unwilling to attend the trial for the reasons that appear by paras. [ ] to [ ] of Rudolf’s affidavit” is incorrect, if it is intended to suggest that Rudolf was unwilling to attend trial as a witness (whatever the position may be so far as attendance as an adviser is concerned). The skeleton argument, apparently prepared without sight of the final version of the Rudolf witness statement, has not been amended. Significantly, the Claimant does not state that he asked Rudolf to attend trial or that Rudolf was unwilling to attend trial (rather, that the Claimant “considered” it impractical to bring him to London). The Claimant suggests that Rudolf is now willing to attend the hearing, without explaining what has changed (other than that the Claimant lost at trial). The Claimant had other witnesses attend in answer to subpoena.

13. The three documents in MDB3 are of particular interest. They are:

14. The significance of the three documents at “MDB 3” is this:

15. The Claimant has given no assistance in providing Rudolf’s sources for the material in his witness statement. At MDB 2, the correspondence between the solicitors on this matter is set out. On 7th, 9th and 20th March 2001 this firm asked for copies of all of the source material to which Rudolf referred in preparing his witness statement. None of this has been provided, on the grounds that it is said that Rudolf does not have that material (see Nigel Adams & CO’s letter dated 21st March 2001). We were asked to limit our request to those documents that were essential. In response we asked, on 23rd March, for a list of what Rudolf did have. On 28th March we were told ‘we have sent Mr Rudolf a further e-mail informing him of your request for a list of those documents that he does have and made clear the urgency. We repeated our request on 3rd April and were told on the 5th that ‘...we axe still waiting to hear from Mr Rudolf with details of the documents he has in his possession...’. We repeated our request on the 5th April and were told on the 11th April that ‘all or most’ of the documents required were in Germany and that Rudolf is ‘severely hampered in complying with your request as a result of the persecution he has suffered and having to flee his own country.’ We were again asked to notify those documents we considered essential. On 17th April we asked for a timetable within which Rudolf could provide a list of documents in his possession, the date of publication of each document refereed to in Rudolf’s Affidavit and confirmation of when Rudolf first wrote his witness statement. We also asked for one document, the 1993 Rudolf Report. We have received no substantive reply to any of these points, nor the 1993 Rudolf Report despite repeated requests. As is made clear below and in James Libson’s witness statement, there is nothing new (post-trial) in Rudolf’s source material, such that his witness statement could not have been available for use at the trial. On the contrary, it could have been used by the Claimant, had he decided to do so.

16. Penguin submits that it is clear from paragraphs 5 to 13 above that the Claimant cannot satisfy the first requirement of the Ladd v Marshall test in respect of the Rudolf witness statement. The court should refuse to admit that evidence on this ground alone.

17. In the paragraphs below, I set out further detail as to the availability of the evidence contained in the Rudolf witness statement before and at trial.

The contents of the Rudolf Witness statement

A. Gassing Cellar for Delousing (pages 10–15)

18. Page 10 and the first two lines of page 11 are extracts from Gray J’s Judgment (7 68;13.69/13/82)

19. Page 11 line 4 to page 12 line 2 are virtually replicated from the Gray Critique at pages 3. There are some minor changes, however, which are significant:

20. The documents referred to in the footnotes to page 11 and first two lines of page 12 of the witness statement, footnote (‘FN’) 1 all pre-date January 2000. Fig 1 (FN2) is reproduced from page 31 of the 1988 article “Typhus and the Jews” by F P Berg (see MDB 4 tab 3). In connection with his clam at page 12 line 7 of the witness statement, Rudolf refers to “new findings in Moscow archives” which reveal that the delousing facility “considered... for the morgue of crematorium II...” was operated by hot air. Rudolf refers to three documents, each of which was referred to in the Mattogno article referred to at 19(ii) above:

B. Stairs and slides (pages 14-17)

21. The last 5 lines of page 13, page 14 and the first two lines of page 15 are extracts from Gray’s judgment (7.61, 13.76, 13.84)

22. The arguments put forward at page 15, 16 and 17 are all contained in the Gray Critique. All the footnoted documents pre-date the trial with the exception of FN 9, which is dared “2000”. However, that date is misleading because the English language version of the Mattogno article “Auschwitz 1270 to the present. Critical notes by Carlo Mattogno” (not available at the web-link provided by Rudolf but available on Russ Granata’s web-site ‘http://russgranata.com/irving-eng.html’) has a 1999 copyright (see “MDB 4” tab 4 page 1).

23. As noted by Rudolf at page 16 he draws on the Mattogno article referred to in 22 above. Points A, B, C D and E are all lifted direct from it (see “MDB 4” tab 4 page 9).

24. The argument used by Rudolf on page 17 as to how corpses got into the crematorium had already been used by Irving when he wrote to van Pelt on 29th May 1997. (see “MDB 4” tab 5 page 7).

25. Thus all the material in this section pre-dates the trial of this action.

C. Dummy showerheads (pages 18–27)

26. Page 18 extract from Gray judgment (7.51).

27. Rudolf acknowledges in his witness statement that ‘The following is based on research by Samuel Crowell and taken from his article’. In fact pages 19 to 23 and 24 to 27 directly replicate Crowell’s article “Bomb shelters in Birkenau: a re-appraisal dated 6/5/2000” (see “MDB 4” tab 6 pages 56-61). Thus where Rudolf states in his Witness statement, at page 24, “On the basis of the above report, I feel justified in drawing the following conclusions...” he is in fact quoting directly from Crowell and using Crowell’s conclusions as his own (see page 59 ‘On the basis of the above report, we feel justified in drawing the followingconclusions’). The witness statement pre-dates the arguments concerned to 1989. This is confirmed in the Crowell article atpage 56.

28. Interestingly although Crowell is repeated word for word in the Rudolf witness statement, one sentence is missing: the line “This is an argument that we pointed to in late 1997, and has probably been made by others” appears in Crowell, but not in the witness statement (compare page 60 of Crowell and page 25, line 14 of the witness statement). The fact is that the Crowell article is a review of material previously in the public domain. (see page 3 of Crowell) and that the Claimant is well aware of this work. As noted at page 2 and 3 of Crowell ‘In early 1998, we received copies of three documents from...Moscow...These documents along with a brief letter...were published on the internet website of the British historian David Irving.’ (Crowell also states that Rudolf published his article ‘Technique and operation of German Anti-Gas shelters in World War Two’ in 1998). Indeed Irving has published other Crowell documents on his website (see “N1DB 4” tab 7). For example he carried a link from his ‘dossier on Auschwitz and other Nazi atrocities’ to the ‘Codoh’ website publication of Crowell’s ‘The Gas Chambers of Sherlock Holmes’ which itself carried links (at note 1, page 12) to earlier Crowell articles. Irving also published Crowell’s comments on Kurt Aumeier and the Himmler daybook entry of 18 December 1941. Irving’s site also has correspondence with Crowell in 1998. And who is Crowell? We are told by Rudolf that Crowell is a pseudonym, and by Irving (“NIDE 4” tab 7 page 9) that he is an academic but we know nothing of him or his qualifications.

29. The information in the Rudolf witness statement that is not contained in Crowell is taken from the Carlo Mattogno article “Morgue cellars of Birkenau: Gas shelters or disinfecting chambers?” (Page 8). At page 19 (lines 3-9) Rudolf quotes Bischoff and sources a document APMO, BW/34 p.40 at FN 16. In the Gray Critique however the same Bischoff quotation is used but prefaced by ‘Let me quote from an article written by Carlo Mattogno’; a hyperlink at that point leads to the Martogno article, which sources the quotation (set our at page 7 and 3) as APMO, BW/34. p40. The translation provided is by Crowell, not Mattogno (Crowell page 33) and Crowell notes that this document has been known since at least 1989. Rudolf sources Mattogno at page 23 when taking lines 7-14 from the article (page 8), but Rudolf sates that Mattogno’s article was published in 2000 when, in fact, the article dates from 1999 (see 19(i) above). FN 20 and 21 are taken directly from the Mattogno articles footnotes (23 and 24, page 13).

D. Ventilation system (27-29)

30. Page 27 – extract from judgment (7.62).

31. The Gray critique at page 5 states “it is not very intelligent of justice Gray to parrot the false and long ago refute (sic) chinas by his incompetent “expert” witness....[Pelt]” and refers us to the van Pelt Critique. Page 28 of the witness statement and the first five lines of page 29 are reproduced from van Pelt Critique.

32. The referenced documents for this section were all available no later than 1994. Footnote 22 and 23 refer to a 1994 article by Carlo Mattogno “Auschwitz: The End of a Legend” (“MDB 4” tab 8). This document is available on the ‘Vho’ website at http://www.vho.org/GB/Books/anf/Mattogno.html. At page 30 and 31 of this article, Mattogno deals with the ventilation system and sets out the arguments put forward by Rudolf, which are not new. The argument that the ventilation system was not suitable for removing toxic gas was also put forward by Rademacher in his 1994 article ‘The Case of Walter Luftl’ page 20 (see 34 and 35 below).

E. Pre-heating the morgue (30–31)

33. Page 30 -- extract from judgment (7.68).

34. The commentary all appeared on page 7 of the van Pelt Critique. FN 25 refers to ‘W. Rademacher, in: Ernst Gauss (ed) Dissecting the Holocaust...’. Although Rudolf fails to name the article it is in fact ‘The Case of Walter Luftl’ (“MDB 4” tab 9), which was published in ‘Dissecting the Holocaust’ a book published in 1994 (see “MDI3 4” tab 10 page 4) and edited by ‘Ernst Gauss’ (an alias for Rudolf). At pages 14 and 15 Rademacher sets out the arguments used by Rudolf in his witness statement. That article also refers to Neuferts Bauentwurfslehre’, a standard architectural handbook, which was used by Irving when cross-examining van Pelt (as appears from the transcript of the trial, for example, Day 10, pages 168-170). It appears likely that the Claimant had this material at trial.

35. Although Rudolf does not give a date for the Rademacher article in his witness statement, where it is cited in the Van Pelt Critique (at note 29) the date is given as 1994.

F. Krema 4 and 5 (Rudolf witness statement pages 31-35)

36. Page 31/32 extracts from Judgment (7.68/7.63/7.64).

37. In the Gray Critique (page 6) Rudolf makes the argument repeated at page 32 and the first paragraph of page 33 of his witness statement. In the Gray Critique, Rudolf gives as sources Pressac’s 1989 book and a 1988 article by F.P Berg, he then refers the reader to the Van Pelt Critique.

38. Page 33 to the last paragraph of page 35 of the witness statement all appeared at page 2 of van Pelt Critique. None of the documentation referred to in the footnotes post-dated the original trial of this action. It is noted that FN 32 of the witness statement states that a paper is being prepared by an architect; this simply re-states FN 11 from the Van Pelt Critique (formally dated more than a year earlier). It should be noted that the Claimant produced at trial (but did not put into evidence) some notes for cross-examination he said he had obtained from an anonymous architectural expert; the Claimant had referred to spending a great deal of time and money on architectural consultants for the trial (see, for example, transcript Day 2 pages 114, 124 and 252 Day 8 pages 189-190).

G. Sonderaktio II (36-41)

39. Page 36 – extract from Judgment.

40. Page 37 – first paragraph taken from “Body disposal at Auschwitz” (Carlo Mottogno 1999) (see footnote 38). Rudolf does not date this article but the article itself states Translated and Copyrighted © MCMXCIX...’ (that is, 1999). FN 38 also refers to a 2000 article by Mattagno and points out that there is an English language excerpt at www.codoh.com/granata/sonder.html. Again, this document is not available at this link but again it can be found at Russ Granata’s website and it is marked ‘Copyrighted © MCMXCIX (again, 1999: see “NDB 4” tab 11). Rudolf again refers to that document at FN 46.

41.. At FN 42 Rudolf relies again on Crowell and the 1999 Mattogno article ‘Morgue Cellars at Birkenau’ without giving the dates in the relevant footnotes.

H. Eye Witnesses (41–173)

42. Page 41/42 extracts from Judgment (13.74/13.77)

43. Pages 43–167 are taken almost word for word (with only minor changes) from ‘The Value of Testimony and Confessions concerning the Holocaust’ by Manfed Kohler (see “MDB 4” tab 12 page 5–38) published in ‘Dissecting the Holocaust’, the German Edition of which was published in 1994. This is not apparent from the face of the witness statement, which appears to present the old material as new. The documents footnoted in the witness statement mirror those in the Kohler article (see for example FN 51 on page 47 of the Witness statement and FN 25 page 41 of the article). The absence of references might mislead the reader into thinking this material was prepared by Rudolf in February 2001, when it is clear that it was not.

44. Pages 169–173 -- the most recent source is 1998 (footnote 434)

I. The Central Construction Office and Himmlers Dismantling Order (174-175)

45. Page 174 contains excerpts from Gray J’s judgment and comments which also appeared in page 9 of the van Pelt Critique 2.

J. The Leuchter Report, Professor van Pelt and Professor Roth (175491)

46. Pages 175-177 -- extract from Judgment.

47. As James Libson rightly points out (witness statement paragraphs 38-40), this section of the witness statement is based to a very large extent on his 1992/1993 Report, with virtually identical foottaotes.

“Penetration of building material Hydrogen Cyanide” (177-183)

48. Pages 177–183 also appeared in the van Pelt Critique (pages 10/11) and the van Pelt Critique 2 (pages 19–21).

49. In his witness statement Rudolf supports his conclusions about the “Penetration of building materials by Hydrogen Cyanide” by referring the reader to the following documents:

50. Whereas at page 182 of the witness statement Rudolf states “Prof Roth, who, after all, is a professor of chemistry, must know all these facts, and one can only assume that Professor Roth felt the need to attack Leuchter in order to avoid being attacked himself but that he does nor alter the fact he has changed his evidence preferring expediency to truth...”. In his van Pelt Critique at page 12 he less neutrally states “This must be known to Prof Roth and one can only wonder why he spreads such outrageous lies. And he is lying, I am dead sure about it”.

51. From the above material, it appears that Rudolf has tried to give the impression that material contained in his witness is new when, in fact, it is not. It should be borne in mind that Rudolf sought to emphasise the easy availability of his 1993 Report at an earlier stage. At page 16 of the van Pelt Critique Rudolf stated that “In van Pelt’s report, the name Germar Rudolf is not mentioned. According to his statement during the Irving/Lipstadt trial, he has heard about my report, but he never saw it. He obviously never tried to find it. It is freely accessible on the Internet since the end of 1997, and every search engine spits out my name and my report on the very first lines. ...”

“Concentration of Cyanide required for killing purposes” (183-191)

52. Pages 183-190 also appeared in the van Pelt Critique pages 8-9 and the following documents are relied upon:-

K. Research of the Forensic Institute in Cracow (191-251)

53. Pages 191–193 are extracts from the Judgment of Gray J.

54. As James Libson rightly points out, there are three main sources for the arguments set out in this section: Rudolf’s own 1992/1993 Report; a paper by Gauss (an alias for Rudolf) in 1994; and a further Rudolf paper from 1998.

The first modern forensic Research by the Cracow Institute (193-195)

55. Pages 193 and 194 refer to a report published by the Cracow Institute in 1990.

Long term stability of iron blue (195-205)

56. The areas covercd in this section reflect the contents of the van Pelt Critique (page 10). One of the sources given in that Critique is Rudolf’s own 1993 Report (see, for example, FN40).

57. The detail on long term tests appears also in the van Pelt Critique. The first paragraph in this section refers to the disinfestation building BW5a and 5b in Birkenau. The same point is made on page 10 of the van Pelt Critique but again there is a footnote in the Ctique that is not in the witness statement (FN 43 ‘Illustration of this can be found in Rudolf Gutachten opposite note 3...’) note 3 is the 1993 Report. However, the reference to it is omitted from the witness statement.

58. Other parts of this section are also to be found in the van Pelt Critique, for example, the second paragraph in this section refers to long term tests in Slough, West London: the document referred to at FN 471 is also referred to at FN 44 of the van Pelt Cntique which makes the same point; also on page 203 Rudolf states ‘Another conditioning factor proves the extraordinary long term stability of Iron Blue’ and refers to town gas generation. This point is made at page 10 of the van Pelt Critique (IN 45). However, although in the van Pelt Critique Rudolf (at page 10) summarises the long-term tests and refers at FN 46 to the 1993 Rudolf Report (‘for a detailed discussion of this and more see the acc sections in my report’, with hyperlinks to chapters 2.4 and 2.5.6 of that Report see MDB 4 tab 17), there is no reference to the 1993 Rudolf Report in the footnote to the witness statement regarding long term tests.

The second modem forensic research by the Cracow Institute (page 206–251)

59. This section covers the same ground as the van Pelt Gthtique at page 13, although the witness statement is a longer version.

60. Much of this section seems to be taken from an undated article entitled “A fraudulent attempt to refute Mr Death” by Germar Rudolf. This updated article concludes that section 4 on page 3 heading “Science, the Polish Way” under a sub-heading 4.1 “Lack of understanding”, the second paragraph under this same heading is the same as the first paragraph on page 206 under this section.

61. The paragraph at page 207 starting “The Poles have done nothing to establish whether or not there is a possibility that Prussian Blue develops in walls....” is a repetition of paragraph 43 (“Ignoring unsolved, but critical problems of the article”) (continued in 4.4 “Ignoring peer opinions”).

62. Page 208 stems from page 4 of the article. Page 209 stems from page 4 of the article.

Paint as a source of blue discolouration

63. Rudolf takes issue with the work of Dr Bailer in this section as he did in his article ‘Critique of Truth and the Auschwitz Lie’ (see MDB 4 tab 23).

Interpretation of cyanide values

64. Page 225, quote taken from the van Pelt Critique at page 12.

Cyanide traces close to the limit of detention (225-229)

65. This section is the same as the van Pelt Critique at pages 12 and 13.

Expected analysis of results (229-242)

66. This section is the same as pages 15-18 of the van Pelt Critique under the same heading. At FN 494 of the witness statement Rudolf refers back to his 1993 report (this is hyper-linked in the van Pelt critique). FN 451 on page 384 refers to a 1997 document. FN 22 at page 232 refers to documents available in 1967 and 1994. However, at page 233 there is a slight change between the van Pelt Critique and the witness statement. Point i of the witness statement concludes “The actual HCN values in time can be described as an ex-potential funcion as well, as I shall demonstrate briefly...”. In contrast the van Pelt Critique states “the actual HCN values in time can be described as an ex-potential function as well, as shown in detail in my report [61]”. FN 61 is a link to the 1993 Rudolf Report (http://www.vho.org/D/rga/lueft.html). The hyperlink carries you to chapter 3.4.2.4 of the 1993 Rudolf Report (see “MDB 4” tab 18). Footnote 495 reproduces that section of the Rudolf Report, without making clear that this is what is being done.

67. At page 235 FN 496 refers to Pressac’s 1989 book. At page 240 FN 497 refers to publications in 1927 and 1929 and FN 498 refers to Rudolf’s 1993 Rudolf Report.

68. At page 241 there is a difference between the Rudolf Wimess statement and the van Pelt Critique. The witness statement at the end of the first paragraph reads “nevertheless, analysis results of a sample taken from the certainly warm and dry interior wall of this room yielded some 2,900.0 mg cyanide per kg sample material (see my sample number 12), but the samples taken from the alleged “gas chamber” still do not yield any result that could be interpreted.” It is not immediately clear what ‘sample number 12’ is. The van Pelt Critique however carries a hyper-link in this paragraph (http://www vho.org/D/rga/rudolf.html) which carries the reader to the Rudolf Report 1993 (4.3.3) which includes a table of results, including that of sample 12 (see “MDB 4” tab 19).

69. The last paragraph of page 241 and the contents of page 242 refer to a church in Lower Bavaria. Rudolf neglected to mention here or in his footnotes that he has published information about this church previously (in 1994) and that there have been articles on it published in Germany since 1981. This information is repeated in Rudolf’s “Some considerations about the gas chambers of Auschwitz and Birkenau – paper presented at the first Australian Revisionist Conference, August 9th, 1998” (see “MDB 4” tab 20 page 10).

70. On page 243 the table “Comparison between cases of building damage, morgue and disinfestation chamber” is reproduced from the 1994 article (mentioned in paragraph 69 above) to which readers of “Some considerations about the gas chambers of Auschwitz and Birkenau” are referred (see “MDB 4” tab 21 page 5 and 6)

L. Holes in the roof of Morgue 1 at Crematorium 2 (page 251–282)

71. Page 251–254 -- Extracts from judgment

72. Pages 254–262 also appeared in the van Pelt Critique or the van Pelt Critique 2. The footnotes in this section all pre-date the trial. At page 6 of the van Pelt Critique Rudolf accuses van Pelt of forgery. This unfounded allegation is (rightly) removed in the witness statement.

Professor van Pelt’s statements

73. Page 254–256 is either taken word for word or based on page 6 of the van Pelt Critique.

Material evidence for the hole

74. Pages 256–257 are based upon page 7 of the van Pelt Critique (and replicated from the van Pelt Critique 2).

75. At page 6 of the van Pelt Critique Rudolf states of van Pelt “...so he agrees that no remainders of those alleged holes exist. Would he have only rudimental knowledge of architecture he would know that it is impossible to restore boles in a concrete ceiling without leaving clearly visible traces. In fact, van Pelt has given evidence for the fact that there were never any holes in the ceiling of this room, and consequently no Zyklon B introduction devices of which nature so ever and hence no introduction of poisonous substances in the way described by the “witnesses”. He has proved that his “eye witnesses” are lying. He has proved that there is no evidence for mass murder in Auschwitz. In fact, he has proved that there is no evidence for the Holocaust. No holes, no “Holocaust” (Robert Faurisson). It is nice to see that in the year 2000 the great professor of architecture, Robert Jan van Pelt came to the same results as I did in 1991 (as described in my 1993 report), when analysing the roof of the alleged “gas chamber” of crematorium II in Birkenau. Just our conclusions are slightly different...”. Mr Rudolf repeats this statement in a less aggressive form at page 258 of the Witness statement showing that he himself dates this argument to 1991.

Photo’s allegedly showing Zyclon B introduction events

76. Page 259-260 taken from the van Pelt Critique at pages 6 and 7.

Analysis of a ground level photo taken by the SS (261.262)

77. This information is all taken from the van Pelt Critique 2 at page 13.

Reliable eye witnesses for wire mesh columns (262-282)

78. The material at pages 262-268 is replicated from the van Pelt critique at page 2-4. The diagrams in this section are replicated from the van Pelt Critique 2, as is the section on Muller at 268-9. After the sentence “... thermo dynamic effects (reduced surface/volume ratio, narrowed and thus accelerated hot air flows through leading to increased energy loss)” in the van Pelt Critique (page 3, repeated at page 266 of the Witness statement) there is an additional footnote that does not appear in the Witness statement which refers the reader to a 1994 article available on the CODOH web-site and the VHO web-site by Carlo Mattogno and Franco Deana.

79. Pages 269–273 are taken from the van Pelt Critique, pages 4 to 5 (the section on Olere at page 272 and the additional comments in this section -- except for material about Schreiber – is all in van Pelt Critique 2).

M. Undressing rooms (pages 282–283).

80. Commentary taken from the Gray Critique.

N. Gas tight doors (pages 283–305)

81. Pages 283–285 -- extracts from judgment.

82. Pages 285–305 taken from the 1998 article “Some details of the building administration of Auschwitz” by Hans Jurgen Nowak and Werner Rademacher (see MOB 4 tab 22).

83. Rudolf in his Witness statement states that in this section he is “mainly using material as researched by the engineers Hans Jurgen Nowak and Werner Rachernacher, whose activities were partly financed, co-ordinated, and eventually published by me”. This section (with minor differences) replicates this 1998 article word for word (see page 14–27). This includes repeating the footnotes that are in that article.

84. Thus where at for example page 293 on line 8, Rudolf states “this is the only questiom which we shall examine in the following”, he refers to we because this directly listed from the article. On page 303 at line 7 he states that “I conclude that” but the conclusions are not his but directly drawn from the article.

0. Air Raid Shelters (pages 305–317)

85. At page 307 we are told “Samuel Crowell has collected ample evidence proving that the SS were indeed concerned to prevent loss of life amongst the inmates. Some of the most stunning documents will be discussed briefly in the following, thereby relying on his most recent paper, which is an excellent, ground-breaking work that should be made required reading for everybody dealing with this question. This is footnoted at 13. FN 15 is an article by Samuel Crowell entitled “Bomb Shelters at Birkenau: A re-appraisal” available on the Internet at the CODOH site. (See MDB 4 tab 6).

86. On page 15 of the Crowell article we find reference to “Guidelines for Bomb Shelter Construction in the GG” as mentioned in lines 2 and 3 on page 308 of the Witness Statement. On page 16 we find “Entries from the diaries of Hans Frank” as mentioned in lines 4 and 5 of page 308. On page 18 of the Crowell article we find “The Stroop Report”. As recorded on lines 6, 7, 8, and 9 of page 308 on page 19 we find the Nuremberg Testimony of Joseph Buehler as referred to at lines 9 and 10 of page 308.

87. At page 309 of the Witness statement is the sub-heading “High level documents about Bomb Shelters. This is replicated in the Cowell article at page 21. The documents in this section in the report dated 14th September 1940, 27th January 1942, 6th March 1943 are found as document 6 on page 23, document 10 on page 25 and document 11 on page 25.

88. At page 310 there is a sub-heading “Mid level documents about Bomb Shelters”. This sub-heading is replicated at page 30 of the Crowell article. Pages 310 to 313 are lifted directly from pages 32 to 34 of the Crowell aricle.

89. At page 313 of the Crowell article is a sub-heading “Low level documents concerning Bomb Shelters”. This heading is replicated at page 38 of the Crowell article, lines 7 to 15 on page 313 are based on the commentary at page 41 (document 28) of the Crowell article. The June 1994 document about 10 trench shelters mentioned at line 15 of the Witness statement is at page 32 of the Crowell article (document 31), The remainder of page 314 repeats what is written about document 32 on page 42 of the Crowell article. Page 315, lines 1 to 8 are taken from page 43 of the Crowell article. 90.

90. The two documents mentioned on page 313 and 316 are dealt with at pages 45 and 46 of the Crowell article.

P. The Quantity of Zyclon B required

91. Page 317, extract from judgment.

92. Page 318 refers to no documents but is taken from pages 13 and 14 of the Gray Critique.

Q. Coke consumption and crematory capacity

93. Page 318 to 320 extract from Judgment.

94. Pages 320-323 taken from the Gray Critique pages 15-16.

Summary regarding Rudolf Witness statement

95. As can be seen from above, the Rudolf witness statement is not an expert report based on new evidence, unavailable at the tria1 stage. Rather, it is based upon previously published works by Rudolf and by others, in part copied verbatim from those works. It appears would have been willing to be called as a witness (if the Claimant had asked him to give evidence). It also appears clear that his evidence could have been put into the form of a witness statement or expert report before trial, for admission at trial, whether or not he was to be called to give evidence. Despite the fact that it appears that there was longstanding prior contact between the Claimant and Rudolf, it appears that no attempts were made to obtain an expert report for trial. The Claimant should not be permitted to adduce this material.

96. If the court were to be minded to consider the Rudolf witness statement further, then it would be necessary to consider the witness statements of Van Pelt and Green to determine whether or not the Claimant has satisfied the 2nd and 3rd requirements of Ladd v Marshall. Further arguments will be made, if necessary, in due course, to establish that the Rudolf evidence does not fulfil either of those two criteria.

The Witness statement of Zoe Polanska-Palmer.

97. The application notice states the Claimant could not have produced Zoe Polanska Palmer at the trial, because the Claimant had no knowledge of her until after the trial. It should be noted, however, that the Claimant did not adduce evidence from any eye witnesses to support his case. He does not suggest that he tried (but failed) to obtain such evidence. It would be surprising if he had even attempted to do such a thing: clearly, the fact that a single eye witness did not see something does not mean that it did not happen. It is only if there is a convergence of all the evidence that such a conclusion would follow. Even if Ms Polanska-Palmer saw nothing at all, her evidence would still be of no value for the court in this action.

98. Further, as appears from James Libson’s witness statement (paragraphs 32-88), her evidence does not fulfil the 2nd or 3rd tests of Ladd v Marshall. Penguin notes that, despite requests going back to 1st March 2001, no signed version of Ms Polanska-Palmer’s evidence has been received.

99. I believe that the contents of this witness statement are true