Drug companies celebrate collapse of price-fixing case
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The Serious Fraud Office suffered a huge defeat yesterday with the collapse of
its £25 million, six-year investigation into alleged price fixing among drug
manufacturers.
The Court of Appeal in London rejected the SFO?s appeal against the striking
out of its indictment in July this year against five pharmaceutical
companies.
The decision, reached in less than 1½ hours, raises a question mark over the
future of such lengthy and complex investigations by the SFO.
The investigation dwarfs any other undertaken by the office. At one stage it
involved every lawyer and every accountant at the SFO, its entire forensic
computing unit and 100 police officers from the National Crime Squad as well
as the entire Metropolitan Police fraud squad.
The SFO?s new Director, Richard Alderman, has indicated that he would prefer
to focus resources on preemptive and preventative measures.
Prosecutors had alleged that the defendants ? Goldshield, Ranbaxy, Norton
Healthcare, Kent Pharmaceuticals and Generics UK ? conspired to defraud the
NHS of £120 million by fixing the price of drugs, including the blood
thinner warfarin and antibiotics. Criminal charges were brought after raids
on 30 homes and offices in 2002.
Price fixing was not a specific offence until the Enterprise Act 2002. Because
the allegations referred to the period 1996-2001, the charges were brought
instead under the common law offence of conspiracy to defraud. However, the
law lords ruled this year that price fixing alone did not amount to
conspiracy to defraud.
The SFO returned to the Crown Court seeking to amend and represent its case in
the light of the House of Lords ruling that cartels were not illegal at the
time of the alleged offences. This was rejected in July.
Douglas Day, QC, for the SFO, said in the Court of Appeal that cartel
activity, when aggravated by other features, could amount to a ?conspiracy
to defraud?. The appeal judges ? Lord Justice Latham, Mr Justice Andrew
Smith and Mr Justice Macduff ? yesterday rejected that argument.
The total costs both of the SFO and of the companies is estimated to have run
to more than £50 million.
The Court of Appeal?s decision was a victory for the companies and executives
targeted by the SFO?s investigation, codenamed Operation Holbein, which
began six years ago.
Keith Hellawell, the chairman of Goldshield, said: ?This judgment provides the
company with certainty that the allegations are now in the past.?
The SFO said: ?This means that the prosecution comes to an end. The SFO will
fully consider the implications of the ruling in due course when it receives
the reasoned judgment.?
Anthony Barnfather, head of regulatory investigations at Pannone LLP, who
played a lead role in the case, acting for John Clark, of Kent
Pharmaceuticals, said: ?This is the final hammer blow for the SFO in this
much derided prosecution.?
Mr Alderman said last night: ?I am not surprised at the decision. I thought
long and hard about whether to appeal. What turned it for me were the
victims, who would have wanted a final authoritative judgment from the Court
of Appeal before we abandoned the case.?