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Inside Life Sciences

Using private prosecutions to tackle counterfeit drugs
Inside Life Sciences

Inside Life SciencesIssue 3 | November 2017

Date
08 November 2017

Gareth Minty Managing Associate (Barrister)

As rights holders, the protection of your brand and IP are of paramount importance.


Using private prosecutions to tackle counterfeit drugs

As rights holders, the protection of your brand and IP are of paramount importance. 

Individuals and organised crime groups that would target your work doubtless weigh up the prospects of success against the chances of being detected and, thereafter, the consequences that will befall them if they do get caught. 

They will be aware of the much-publicised reduction in policing and prosecutorial budgets, and likely will assume that the risk of prosecution – and therefore of imprisonment, and a confiscation order – is one they can live with. But such a calculation fails to take into account the possibility that the victim company may instead elect to bring its own criminal case via a private prosecution. 

However, there are one or two misconceptions surrounding the use of a private prosecution as part of your litigation strategy to combat serious criminality aimed at your company which should be dispelled.

  • You do not have to wait for the police to make a decision whether or not to investigate 

It is open to the victim to seek to commence criminal proceedings as soon as practicable after having been alerted to the offending involved. By bringing a private prosecution, you have the ability to drive forward criminal cases in a way that would not otherwise be available and can improve the likelihood of capturing the best evidence and causing maximum disruption. At the same time, however, you have not exhausted all of your options, and it remains open to you, at a later stage, to request that the Crown Prosecution Service exercise its statutory discretion to intervene and continue proceedings that you have commenced.

  • You do not have to bring the proceedings in your own name

We understand that, for some clients, there is a conflict between wanting to take a hard line whilst at the same time not wanting to do so in such a public fashion. For that reason, we are building effective relationships with professional organisations that will bring not only their expertise and reputation to an investigation, but also their name. As a consequence, the victim company has a choice whether or not to have the criminal proceedings brought in its own name or that of the third party. Either way, you are able to send a strong message to organised criminals that you, the rights owner, are not a soft target.

  • You will not have to pay the defendant's costs, whether you win or lose

If the case is brought and conducted in good faith, with no improper conduct on the part of the prosecutor, the private prosecutor will not have to pay the defendant's costs, irrespective of the outcome of the case. A further significant feature of such proceedings is that the private prosecutor can apply for its own costs, even if the defendant is acquitted. 

  • You do not have to choose between either civil or criminal proceedings

Finally, the interplay between criminal and civil proceedings can sometimes be misunderstood by police officers and victims alike, with the result that there is a myth that a victim of crime must choose between pursuing either one or the other. In fact, there is nothing to prevent a victim electing to utilise criminal and civil processes concurrently, whether that is in relation to the same suspect or, for example, when dealing with an organised crime group in which different approaches may be taken for the various individuals involved, depending on their respective roles and culpability.