Over 20 years ago, Ernest Pepples, a Brown & Williamson lawyer, dared put the unmentionable to paper—the possibility that the industry might be held criminally liable for its conduct. He wrote: “If we admit that smoking is harmful to heavy smokers, do we not admit that BAT has killed a lot of people each year for a very long time? Moreover, if the evidence we have today is not significantly different from the evidence we had five years ago, might it not be argued that we have been ‘wilfully’ killing our customers for this long period? Aside from the catastrophic civil damage and governmental regulation which would flow from such an admission, I foresee serious criminal liability problems.”

Pepples' anxiety is easily understood. The proposition that the criminal law ought to apply to, and punish, those who knowingly engage in conduct that causes death and disease is hardly novel. It does precisely that, every day of the week, in courtrooms across the globe. But not, so far, against this industry.

There have now been several successful civillawsuits, most notably in the USA. Among its great successes, the US litigation has led to the release of countless previously secret industry documents. These documents have often been described as “incriminating”. But if “incrimination” refers to crime, as it literally does, where have the criminal prosecutions been?

Could tobacco companies be held criminally liable for their conduct, even if it were accepted that they have complied fully with all laws relating specifically to tobacco? This question was debated in May this year by law students from Monash and Melbourne Universities in a moot (simulated) court, organised by the VicHealth Centre for Tobacco Control in conjunction with Vic Health, and run as the inaugural VicHealth Legal Issues in Public Health Challenge. A high profile bench—comprising a former Supreme Court judge, Victoria's current Law Reform Commissioner, and a widely respected emeritus professor of criminal law—heard the case, which took the form of an appeal by a fictional tobacco company against a conviction for conduct endangering life under the Crimes Act 1958 (Vic). The section under which the company was charged (section 22) provides: “A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.” The term “person” includes both natural persons and corporations.

Being a moot court, the judges did not decide the legal issues argued, only the better “mooting” team, and the best individual advocate. However, it was patently clear from the arguments made by the students, and comments from the bench, that the issues were genuine ones. The idea that tobacco is a “legal product” and that therefore the industry cannot be held criminally liable was shown to be specious. The argument that compliance with a specific regulatory scheme is a complete defence to a criminal charge was shown to be a nonsense. The legislative and regulatory background form only part of the circumstances in which issues of criminality have to be assessed.

Of particular interest were two issues: whether the argument about criminality depends on showing that the industry has acted in ways beyond that covered by tobacco legislation and regulations—such as by engineering the product so as to make it more attractive or more addictive, or failing to offer assistance, such as cessation programmes, to people it has addicted as children; and just how far the line of criminality might run—perhaps through to company directors, advertisers, marketing executives, and lawyers.

The moot court represented an initial step towards having the industry's conduct examined in a criminal liability context. On the day after the moot, Victoria's top selling newspaper ran a piece in which a leading criminal law barrister was quoted saying “it is something that will undoubtedly hit the courts at some stage”.

If we begin to think of many current practices of the industry as possibly criminal, we take a major step towards conceiving of tobacco regulation as essential, and as a necessary expression of underlying legal realities, rather than a radical encroachment on a legitimate industry.