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Bad Medicine: Lessons from an Enduring Alliance between Big Pharma and Global Policing

The challenges of tackling international crime with national law enforcement are legion. John Binns, a partner in the Financial Crime team at BCL Solicitors considers how Interpol’s Operation Pangea illustrates how they can be overcome, in the context of the global fight against illicit medicines.

A World of Problems

What can be done about the sale of illicit medicines? The question illustrates a familiar challenge in the world of law enforcement, in that a problem we as consumers and taxpayers can see as straightforwardly needing tough and enduring action is made harder to solve by two fundamental features of the landscape.

The first of these is legal complexity. The trade-in between counterfeit and otherwise illicit medicines can be categorised in various ways from a legal perspective, broadly depending on the nature of the harms that are involved. Even where the law clearly provides remedies against conduct, which may result from a combination of civil and criminal law, the overlapping provisions and procedures can be unhelpful.

Controlled Drugs

In the UK, and indeed in most jurisdictions, the starting point for tackling many illicit sales of pharmaceutical products will be controlled drug offenses. The Single Convention on Narcotic Drugs 1961 provides the international framework, while the Misuse of Drugs Act 1971 and its schedules set the domestic framework for prohibited acts and the classification of various substances, with various regulations made under it providing detailed rules. Where the actions of an illicit trader in medicines constitute prohibited actions under that legislation and are not covered, or insufficiently covered, by licenses granted under those regulations, criminal investigation and prosecution may be both possible and appropriate.

Counterfeit Medicines

With respect to counterfeit medicines, these may breach intellectual property laws, specifically in connection with the infringement of patents (under the Copyright Designs and Patents Act 1988) and the unauthorised use of trademarks (under the Trade Marks Act 1994), which can be enforced using either civil law routes, litigation in the High Court) or criminal law (prosecution in the magistrates’ courts or Crown Court.

Significantly, the availability of these two routes of enforcement does not entirely depend on who is doing the enforcement. Increasingly, private companies opt to bring private prosecutions in UK criminal courts against those identified as breaching criminal provisions of intellectual property law. While civil litigation may result in substantial damages and payment of costs by the losing party and involve the lower evidential standard of civil proceedings, ‘the balance of probabilities’, as opposed to the criminal standard of ‘beyond reasonable doubt’, there is substantial deterrent value in obtaining a criminal conviction, with all that implies in terms of the offender’s reputation and, if and insofar as individuals rather than corporate defendants can be proved responsible, the threat of imprisonment.