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Importing and distributing active pharmaceutical ingredients

Blog, News 8 Mar 13

A recent rash of cases concerning the importation and distribution of Active Pharmaceutical Ingredients has highlighted the draconian provisions of the Serious Crime Act 2007 and the very lengthy prison sentences that often follow prosecutions pursuant to that Act.

Active Pharmaceutical Ingredients are the substances contained within a medicine used to treat or cure a disease. Some substances treat the disease directly, whilst others, known as excipients serve many functions such as bulking agents to make a tablet a reasonable size or sweeteners to aid the taking of the medicine by masking the taste.

Providing an API has been manufactured in accordance with European Union Good Manufacturing Practice, the possession and sale of API’s will not attract criminal sanctions in the same way the sale or supply of controlled drugs does. However it is the use of API’s such as benzocaine, lidocaine, phenacetin, procaine and boric acid as cutting agents to dilute the purity of controlled drugs by bulking them up that has been the focus of those prosecutions. In the first decision from the Court of Appeal relating to the importation of API’s for use as cutting agents, (R v Watling [2012] EWCA Crim 2894 14.12.12), a sentence of 13 years imprisonment following a guilty plea to an offence under s45 Serious Crime Act 2007 was approved.

Sections 44 and 45 of the Serious Crime Act 2007 make it an offence for a person to do an act capable of encouraging or assisting the commission of an offence either intending to encourage or assist its commission (s44) or believing that the offence will be committed and the act will encourage or assist its commission. S58 dictates that any person convicted under s44 or 45 is liable to any penalty for which he would be liable on conviction of the anticipated offence.

In other words the supplier of the API, notwithstanding it is legally possessed and can be legally sold, will be potentially sentenced as if he were a Class A drug dealer if it can be shown when he supplied the API he believed or intended it to be used to cut Class A drugs.

The risk to the seller of an API therefore, is almost as high as the Class A dealer. However what the recent cases have demonstrated is that the reward is nothing like that of the Class A dealer. For example in the recent case of R v Savva & Others, in one of many transactions, 5kgs of benzocaine was purchased for £1,000 from the defendants by undercover police officers. A purchase of the equivalent quantity of cocaine would be well in excess of £200,000.

Consequentially as the cases referred to below demonstrate, some truly staggering statistics emerge upon analysis of the potential use for the API’s.

  • R v Hartley, Dale & Cawley – Members of a gang who smuggled 36 tonnes of API’s over three years, into the UK were sentenced to 11, 18 and 15 years imprisonment respectively. The street value of the drugs that could have been cut with those chemicals equated to £3.5billion.
  • R v Iqbal Hussain – A defendant was sentenced to 12 years imprisonment for the importation and distribution of enough API’s to cut £1billion worth of Class A drugs.
  • R v Savva & Others – The defendants imported and distributed API’s over a two year period. Three and a half tonnes of API’s were recovered from various storage premises, enough to cut an estimated £246million worth of Class A drugs. Sentences of 8 years and 6yrs 9 months imprisonment were imposed.
  • R v Watling – 13 years imprisonment was approved by the Court of Appeal for an importation of 782kg of benzocaine (with another 1.5 tonnes in the pipeline). An estimated £150million worth of Class A drugs could be cut with this amount of API’s.

Conversely the revenue generated for the API dealer bears no relation to those figures. In R v Savva & Others the Crown were able to demonstrate, with some confidence, that the monies received by the defendants over a two year period did not, in all likelihood, exceed £170,000.

A cursory search of the Internet will reveal numerous sites purporting to sell cheap benzocaine and other API’s in a way that is wholly inconsistent with genuine supply for pharmaceutical purposes. Undoubtedly some of those operating such sites do such under the misapprehension that because it is not illegal to possess or sell them, the fact prospective purchasers may use them for illicit purposes does not concern them.

These recent prosecutions clearly demonstrate that the Serious Organised Crime Agency in combating the drug trade, are targeting the API suppliers as well as the drug dealers. What is also clear is that whilst the figures quoted by prosecutors may appear to be excessive Judges are nonetheless content to sentence defendants, more often than not, to terms of imprisonment in excess of ten years even though the reward for the API supplier is but a fraction of that gained by the Class A dealer.

Blog, News | 8 Mar 13

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