Tobacco document revealed
Updated on 04 October 2004
Five leading tobacco companies stand accused of a 50-year conspiracy to hide their knowledge of the damage smoking can cause.
Channel Four News has uncovered new evidence which appears to show how damning documents at the heart of the industry were deliberately - and systematically - destroyed.
Two weeks ago the United States Government launched its strongest attack yet when it took the companies to court in a two-hundred billion pound lawsuit.
One of those accused is a subsidiary of the British company British American Tobacco.
American government prosecutors believe letters between BAT and its City law firm throw a damaging spotlight on the destruction of potentially incriminating evidence - and correspondence revealed by this programme appears to show its true extent.
Those involved have strongly denied there was any wrongdoing.
It is the case the tobacco industry says could put it out of business.
They stand accused of a 50 year long conspiracy to deceive the American public.
The deception includes the deliberate destruction of scientific research.
Research that would show they knew smoking was dangerous while in public they claimed the science was inconclusive.
For several months Channel Four News has been investigating the American case.
The trail ended here, in the archive of seven million documents belonging to British American Tobacco, made public by a US court.
We were following a lead from an earlier case, which suggested a Canadian associate company of BAT had destroyed sixty scientific reports in the early nineties.
What we saw could have a dramatic impact on the current US case.
The trail had started with a letter made public several years ago. From the solicitors of the Canadian company, Imperial Tobacco, then part owned by BAT, it lists documents they intended to destroy back in 1992.
"Organisations in Canada went into press conferences at that point in time. Now, the company blew it off very quickly saying this was just housekeeping. Now that really didn't ring particularly well." Eric Legresley, tobacco control consultant, Canada.
The note we've obtained suggests their suspicions it was more than housekeeping may be true.
Written by BAT's London lawyers, Lovells, to explain the Canadian letter, it reveals they had been "considering the potential impact on litigation" of the reports stored in Canada. They'd put together lists of "documents of concern", the top category - those making "sensitive statements" or containing "sensitive research results". And the note tells BAT's senior management: "the majority of reports of concern appear to have now been destroyed."
These documents are remarkably significant. It's almost a legal search-and-destroy mission, in the sense that, in extraordinary detail, they go into all the types of research reports which they consider would be embarrassing from a legal perspective, and whether or not they have been destroyed" Andrew Higgins, former lawyer for smoking claimants.
The research to be destroyed included: "data generated by mouse-skin painting experiments", "reports dealing with the mutagenic activity of commercial brands", "the properties of nicotine" and "the toxicity of certain additives".
We tracked the reports down: they're on the internet, thanks to more recent court cases.
The mouse experiments had looked at how cancer tumours grew when cigarette smoke condensates were painted on the skin. They'd looked at how the throats of rats were damaged by smoke and they'd tested what they called "safer cigarettes".
In all, just the sort of reports a lawyer might want to use to claim the company knew smoking was dangerous.
"It would have dissuaded anyone from bringing a law suit because you wouldn't have found the evidence in the first place. And if you had brought your law suit, the onus would have been much more difficult for you to meet the standards to show that there was an effort on the part of the company to hide information or that there was pre-existing knowledge in the company with respect to the damage caused by their products". Eric LeGresley, tobacco control consultant, Canada.
The London law firm, Lovells, has long been BAT's solicitors. In the mid-eighties they were asked to review BAT's research archive and advise on how it should be managed - what's called a 'document retention policy'.
The US Justice Department has been following the same trail. Back in April, their lawyers questioned a senior Lovells partner for three days in a bid to find out if document retention included destruction.
Andrew Foyle is a key witness in the US case. They spent some time on the Canadian letter. Asked if "any instruction had been given by BAT to Imperial to destroy certain research documents?" he replied, "there may have been a request." But he could not recall who made it.
But when asked why, Mr Foyle was coy: "I do have such knowledge, but it is based on information the client gave me in the context of legal advice." In other words, I'm not telling you because of legal privilege.
Privilege is the law that guarantees communication between a lawyer and client remains confidential. The questioning might have been very different if the US government's lawyers had known of the document we've found.
Neither Mr Foyle nor Lovells are accused of any wrong-doing, and BAT insists it has never engaged in any unlawful conduct when implementing its document retention policies.
Mr Foyle testified too he wanted to make it "absoutely clear" that suggestions Lovells had organised a "spring clean" of BAT's files with a view to destroying documents was not the case.
Lovells asserts the document we saw at BAT's archive is privileged communication between lawyer and client -so they refused us a copy. And while they claim privilege, the law prevents Lovells from making any comment.
We eventually obtained it from another source, where no claim of privilege has been made.
The confusion over privilege will almost certainly be decided by the American court.
We understand the US government's lawyers have a copy too - whether they can use it in their case or not, is a legal battle yet to come.
