THURSDAY 3 FEBRUARY 2000

MR MARTYN DAY

  1220. I want to ask you a bit about documentation. As you said earlier, you have not seen the evidence that was given to us by the tobacco companies last week. Last week Gallaher offered to make publicly available all the documentation they held on the health effects of smoking. I do not know whether this would release the documentation that was discovered by you and used as part of the litigation. Imperial made a similar offer, though qualified it by saying that they would first need to check with the lawyers on matters of privilege and to finish scanning material. Quite honestly, after several meetings with the companies, I will believe it when we see it. I think you were right earlier on to say that we had to keep up the political pressure to make sure that this happens, that the documents are available to the public. We do know that BAT have eight million pages of documents available for inspection at the Guildford depository which we visited last week, albeit it that it is in a somewhat inaccessible form. One of the procedures is that individuals and organisations can ask to pick out their boxes of files to look through, which they can then sort through, but if they want a copy of a particular document it is first of all not given to them; it is sent to them. Also, it is checked by the BAT legal department to see if there are any areas of privilege and so on. I wondered, not being a legal person, if you could explain the nature of privilege in those sorts of cases, how it would attach to those documents from that company?
  (Mr Day) Privilege normally attaches to a document where it is produced with the contemplation of litigation in mind. To the extent that there has been no litigation apart from this one window of about five years in the United Kingdom, it seems hard to imagine that there have been that many documents that had litigation in mind over the decades in this country. I would first have thought that even if that was an issue it should hardly affect any documents at all in relation to what has happened in this country. Indeed, it would seem to me that if they are to provide a full record it would be sensible to do that, to provide a full record, and that documents that are privileged—there is no litigation going on; as I say, there is hardly likely to be any. In the end the crucial thing is to get a full public record about what has actually happened. I think the sensible thing would be for the request that the disks that were produced in the litigation be produced along with the schedules because that would make it much easier to deal with it document by document rather that having a whole warehouse full of bundles of pages of documents and allows you to sift through and get a clearer picture for yourself as to what happened. Using as an example the potential health authority cases, clearly there will be a lot to say, it may be that there is no sense in bringing a case, but surely the sense there would be that whoever was advising the health authorities could look through the documents, look at what has gone on, ask is there a case here to be made or is there not. It is to nobody's advantage to pursue a case if there is no case to be made. If those documents are all made public then we would have a much clearer picture right from the word go.

  1221. Given what is happening now, it does seem as though there is something to hide because otherwise why not make all the documents available. I just wondered if you know if ASH or any other organisation have been refused a copy of a document that they have requested even though they have had sight of it?
  (Mr Day) I do not know that to be the case, no.

  1222. What sort of documents do you feel they might be excluding from the public domain?
  (Mr Day) You mean in terms of BAT or Imperial and Gallaher?

  1223. BAT, because they have actually got some documentation there.
  (Mr Day) It is clear from the American cases that the repository at Guildford does not include absolutely everything, that there were defined categories and there were big debates about lots of documents that were never produced. I think you met with Roberta Walburn. Is that true or not?

  1224. No.
  (Mr Day) Roberta Walburn is a woman in the States who dealt with the Minnesota documents. If you wanted chapter and verse she would be the person to approach. She has been working with the WHO as well on that very subject. I think there are categories that are still not being made properly public and from everybody's view the sense in my mind would be that Imperial, Gallaher, all of the British companies put all their cards on the table as to what is being said. It may be that there is nothing very much to be said about what has happened, but at least it allows us all to have the comfort of saying exactly what has happened.

  1225. You said that you have reviewed the BAT material on disc. Did that only extend to the documents that were available in the US on the Internet? What documents did you see?
  (Mr Day) We went on a whistle-stop tour of our American lawyer friends to try and go through their system in a few days to see what they had that was relevant to the UK and we came back with about 40,000 or 50,000 pages of documents. Clearly that was a very inexact process and in the short time that we had at that particular time it was very rudimentary. So I think if one was to do it properly you would really want to go through it in great detail. A lot of the American lawyers have got enormous coding of documents in terms of what has been made available in America and it is much much easier these days to search and scan all the rest of these technological advances so that if you are trying to follow a particular thread through it is much more easy to do that. I think if the same was achievable in terms of what has happened with the UK then that would be to everybody's advantage.

  1226. I do not know whether you want to comment on the fact that one of the things that came up last week was that the documents in the Guildford depository are not the original documents, they are all photocopies and we did ask why instead of photocopying them they did not scan them on to disc then, but there did not seem to be an answer to that.
  (Mr Day) I do not know enough about what happened in the American litigation to know what exactly was demanded of them.

  1227. Are there any documents which you have had sight of which are not in the public domain and which you feel that this Committee should put in a request to see?
  (Mr Day) It is difficult to be as specific as that. In the end my view would be that you should be demanding all the documents that they have got in relation to the health and safety and if they produce that then I think there are ample people around who would be interested to look through it to try and piece together much more of the jigsaw than we were ever able to achieve.

  1228. I wonder if I could ask you about the issue of passive smoking. Can you imagine any circumstance in which a litigant might bring a case against tobacco companies as a result of damage to health resulting from environmental tobacco smoke either in the workplace or in public places?
  (Mr Day) Passive smoking from a legal viewpoint is quite difficult. Most of the damage caused is relatively small. So with lung cancer I think they are talking about 30 per cent increased risk. To succeed in a court case on lung cancer you would need at least a doubling of risk and that is the same with most of the other passive smoking related cancers and serious illnesses, that the increased risk is not enough to achieve that level of proof that you require in courts of the doubling of risk. I think the only cases that really have a chance in terms of passive smoking are asthma or respiratory cases where you have got something as an existing condition or if it starts the condition off you would have a decent case. Usually that would be against the employer. The odd cases that we have seen succeeding in the 1990s have been against employers and usually local authorities. It may be a bit more of a soft touch in terms of these sorts of claims. I think it is quite tough. By and large my experience has been that employers have been quite sensitive to this issue. If you have got somebody smoking next to you and you have got asthma or another sort of respiratory problems then employers have been quite sensible about ensuring that you are not working alongside them. I think we are likely to get some remaining cases but mainly against the employer, but it may well be a steady trickle rather than any sort of a flood.

  1229. You spoke earlier about the Government being too comfortable with their relationship with the industry. Do you feel that the fact that we operate by voluntary agreements on the issue of smoking in public places is an example of us being in a sense too accommodating to the tobacco industry?
  (Mr Day) I think that is absolutely right. I think the whole approach of the voluntary agreements through the 1950s, 1960s and 1970s was in the end one that worked in the tobacco's companies interests. It meant that they were always in negotiations and discussions. There is always that interplay which meant that the regulators became too familiar and were never too keen to press too hard. I think it was a big mistake to get into bed in that sort of way with the tobacco companies. I think they should have been much firmer and tougher earlier on.

  1230. Do you think there would be any scope for them changing their attitude now and bringing in tougher rules?
  (Mr Day) In some ways we have seen that. I think the last two or three years have seen a much clearer indication from Government that they are prepared to take tougher lines. As the level of nicotine has come down the debate becomes much much more sophisticated, much more difficult. Clive Bates' paper that came to you back in November was talking about this whole debate about compensatory smoking and how in the end it does not make a ha'penny of difference if you are smoking a ten milligram against a five milligram cigarette. In terms of what you can actually do, one can try and drive down the existing levels from its existing maximum, but all the evidence is increasingly suggesting that at this point in time that is very unlikely to make any real difference. You can contemplate what you do about the nicotine, but the advice of many is that you keep the nicotine at the same level. Governments have already looked at advertising, it is in the courts in relation to advertising. In terms of that sort of thing, it is actually quite difficult to say what exactly should be done at this point in time. For me, my view would be (1) the brown paper bag, and (2) I would drive that nicotine level down to nil. If people have to smoke 200 cigarettes a day to get their hits of one milligram so be it for this particular community, but at least if you are a kid starting smoking today on your 0.1 or 0.01 milligram of nicotine then you are not going to get addicted.

  1231. The Americans have been much more successful in terms of pursuing the environmental tobacco smoking issue, have they not?
  (Mr Day) Not on individual cases. As far as I understand it, the odd individual case which has gone to court has not gone very well. The only case that really has been successful was the flight attendants where they had a good victory in terms of the overall situation. That was much more to do with the cost of giving up and the cost of addiction at that time, it was a big complicated class settlement. That did quite well. It is very difficult to contemplate that sort of action here. Indeed, that was probably the most friendly environment in the States, which was a Floridian court. I think if one was to go to the States that is the number one place to litigate. It was the best forum.

  Chairman: Do any of my colleagues have any further questions?

  1232. I have to put a legal one. The Tobacco Manufacturers' Association, and certainly Imperial, when challenged with scientific and medical evidence, would say "Well, we are not doctors, we are not epidemiologists, we do not have a view on this". Is that a defence in law where you are the Chief Executive of a multi-billion pound undertaking employing lots of experts in lots of fields?
  (Mr Day) It is rubbish. The idea you produce a car and say "Well, look we are not experts at producing cars, we just produce them and we leave it to somebody else to test them", that is rubbish.

  Dr Brand: That is what I thought.

  1233. You have made reference to the discovery process from your point of view. Would you be willing to make available all documents to the Committee for the inquiry?
  (Mr Day) At the moment part of the deal is that all our documents are locked up, unusable, uncontactable, even by me. I think you would have—

  1234. We need to seek advice on this.
  (Mr Day) If I was to be released from my previous undertaking or even additional undertakings that we discussed previously.

  1235. We are back to letters from the tobacco companies.
  (Mr Day) Yes.

  Dr Brand: Perhaps if we had an undertaking that Mr Day can release whatever information he believes to be relevant.

  Chairman: We need to look at this in respect of whether this is regarded as evidence from you. That is a helpful answer. Audrey, do you want to pursue that point?

  1236. Yes. Sometimes as well as the legal privilege in the sense that you have described—and I know my colleague described at an earlier session about documents likely to be involved in litigation—they are also sometimes, just in passing, referring to trade secrets. I noticed that some of the documents that I looked at when we went to Guildford were lying on top of boxes which had been "deprivileged"—that is their word not mine—and I looked at them and they mostly related to patent applications. I was mystified. Could you give any guidance on whether there is any legal standing on this question of keeping trade secrets documents hidden and how patent applications came to be privileged or deprivileged?
  (Mr Day) Clearly patent applications, in a sense, are what you can readily get in the Patent Office so I presume what you are talking about are the documents which lead up to the making of the patent application. Clearly all of these different companies are trying to get a market advantage and therefore produce a product that is more attractive than their competitors. I would have thought that it does not go very far in the sense that it does not take the brains of a giant for one manufacturer to find the trade secrets of the other by getting the cigarette and then investigating it and finding out exactly what is in it and deciding whether there is any advantage to them to trying to use the same sort of methodology. I would not have thought for myself that there are very significant issues to deal with trade secrets and all that. Clearly as time goes on that becomes less and less significant. It may be that there is some argument with regard to things over very recent times in terms of the commercial advantage but, again, it seems to me, that the benefit of having things made public is of a much greater significance. It does not seem to me, from my limited knowledge of what they may be talking about, that in terms of comparing the up and down of that, there is anything other than the emphasis should be on making the things public.

  1237. It seems as if the word archives is used, some people almost have a reflex action of adding the word "dusty" prior to archives so all archives are dusty archives. I wondered what problems you found in relation to searching because of the lack of proper indexation? What we were told was that the files, of which there are a very great many, are indexed but the documents within the files are not titled or indexed or anything. For example, in the demonstration that we were being given I asked for disease to be the search word. Eight million pages they have got, they turned up 69 entries relating to disease. I think they turned up about 100 relating to health. It strikes me that there is considerable difficulty. We did ask Dr Yach from WHO if he could guide us as to how we could ask for the documents in any selective way. He said he could not, he said ask for the lot. You seem to have given us the same advice really, am I right in thinking that?
  (Mr Day) To be fair I think it would be very difficult to say "We just want documents relating to cigarette technology" or something like that. I do not think they themselves have it in that sort of structure. What happened for us, to give you a feel for it, we had a team of 20 going through document after document. We have what we call "objective" and "Subjective" coding. The "objective" coding was simply the title of the paper, the name of the paper, the date it was written, that sort of thing, about four or five key things along the lines of that which you said. We then had "subjective" coding which had a number of key words, things like disease, tar, nicotine. Our subjective code is their job because we received the objective coding from the defendants alongside the documents. We had each document with the objective title and then we had to have one of our team of 20 look at every single document and then subjectively code it so you could search against each of those words. It may be they were doing the same thing, it may be that their lawyers were doing exactly the same job that we were doing, in fact I would be rather surprised if they were not. It may be you could twist the arm of Ashurst, Morris, Crisp and Simmons & Simmons to provide you with the work that they have already done. Indeed, if you were able to get me released, we could provide you with the same so you could search against the key words which was where we were getting to. We have only done it for about a third of the documents so it was, from our view, rather an oblique exercise. Still in anybody's time it was still quite a major job. I think it would be unrealistic, to be frank, to expect that you lot were ever going to have that ability. I think the great public service you can do is by achieving that, then I think there are people around who would have the interest and the time and energy to then start doing the searching.

  1238. You would like to be released from this undertaking to keep these things boxed away safe, not only from fire but everybody else?
  (Mr Day) If you could have me released from any of my undertakings I should be a very happy man. Living in purdah on these things is not an easy life. Trying to remember all the time what you are saying and discussing, it is a very difficult part of life. My mood is now a year later not that it is a mistake to have done it, because in the end it is the only way of protecting the individual claimants from being bankrupted, but that it is enormously difficult. The fact that me and John Pickering, the other main lawyer involved, are probably the only two people who have gone to the effort, outside of the tobacco industry, of going through a lot of these documents, and we are now stopped from ever following that through, stopped from pursuing any potential claim, I think has a wider public importance to us. For me, looking aside from my own personal view, I think it is an indication from the industry that they feel we are two significant people who could do something about this that they have blocked.

  1239. Clearly you do not think your archives would be too dusty.
  (Mr Day) Not too dusty at all. The only point I would add, and it comes back to your point about Imperial, is that one of the rather disturbing things is that somebody who came into Imperial in the late 1980s destroyed a lot of documents, had a big fire, so there may be a lot of fire dust on the documents, but beyond that I am not sure.

  1240. I am conscious that your freedom of expression will be curtailed the moment you leave this room. Before you leave, are there any burning issues that you would have expected us to press you on which we have not but you feel need to be on the record while you are free to put them on the record?
  (Mr Day) I think you have certainly explored everything I had hoped you would. I am very optimistic that the report you eventually produce will make a real change to society as far as tobacco is concerned.

  Chairman: Mr Day, we are most grateful for your co-operation with our inquiry. Thank you very much.