Pharmaceutical Society of Great Britain v Storkwain Ltd (1986) 83 Cr App R 359

Storkwain Ltd, a pharmacy, supplied controlled medicines on the basis of forged prescriptions which they believed to be genuine. The House of Lords held that the offence under section 58(2)(a) of the Medicines Act 1968 is one of strict liability and does not require proof of mens rea.

Facts

The Pharmaceutical Society of Great Britain prosecuted Storkwain Ltd, a pharmacy, alleging unlawful retail sale of prescription only medicines contrary to sections 58(2)(a) and 67(2) of the Medicines Act 1968.

The informations alleged that on 14 December 1982 the defendants sold by retail to a person purporting to be Linda Largey 200 Physeptone tablets and 50 Ritalin tablets, and to a person purporting to be Thomas Patterson 50 ampoules of Physeptone and 30 Valium tablets. These medicines were controlled as prescription only medicines under the Medicines (Prescription Only) Order 1980.

The agreed evidence was that the medicines were supplied under documents purporting to be prescriptions signed by a doctor, Dr Irani, but later enquiries revealed both prescriptions were forgeries. The defendants had supplied the drugs in good faith, believing the prescriptions to be genuine.

Before the magistrate, the defendants argued that the presumption of mens rea applied to section 58(2)(a), so that an honest and reasonable belief in the validity of the prescriptions meant no offence was committed. The magistrate accepted that argument and dismissed the informations, but stated a case asking whether mens rea was required.

On 2 May 1985, the Divisional Court (Farquharson and Tudor Price JJ) answered the question in the negative, allowed the prosecutor’s appeal and directed the magistrate to convict, certifying a point of law of general public importance.

Issues

The central issue was whether the prohibition in section 58(2)(a) of the Medicines Act 1968 required proof of mens rea, or whether Parliament had created an offence of strict liability.

The certified question was:

“Whether the prosecution has to prove mens rea where an information is brought under section 58(2)(a) of the Medicines Act 1968, where the allegation is that the supply of prescription only drugs was made by the [defendants] in accordance with a forged prescription and without fault on their part.”

The defendants, relying on the general presumption in favour of mens rea as expressed in Reg v Tolson and Sweet v Parsley, contended that section 58(2)(a) had to be read as including a requirement that the pharmacist lacked an honest and reasonable belief in facts which, if true, would render the supply innocent.

Judgment

Approach to construction and statutory context

Lord Goff (with whom the other Law Lords agreed) identified the question as one of statutory construction of section 58 of the Medicines Act 1968. Section 58(2)(a) provides:

“(2) Subject to the following provisions of this section —

(a) no person shall sell by retail, or supply in circumstances corresponding to retail sale, a medicinal product of a description, or falling within a class, specified in an order under this section except in accordance with a prescription given by an appropriate practitioner; …”

By section 67(2), contravention of section 58 constitutes an offence.

Lord Goff examined the Medicines Act 1968 as a whole to see whether Parliament had indicated when mens rea was to be required. He noted that where Parliament wished to require mens rea, it had done so expressly, for example in section 45(2) and section 46(1)–(3). He then considered section 121 of the Act:

“(1) Where a contravention by any person of any provision to which this section applies constitutes an offence under this Act, and is due to an act or default of another person, then, whether proceedings are taken against the first-mentioned person or not, that other person may be charged with and convicted of that offence, and shall be liable on conviction to the same punishment as might have been imposed on the first-mentioned person if he had been convicted of the offence.

(2) Where a person who is charged with an offence under this Act in respect of a contravention of a provision to which this section applies proves to the satisfaction of the court —
(a) that he exercised all due diligence to secure that the provision in question would not be contravened, and
(b) that the contravention was due to the act or default of another person,
the first-mentioned person shall, subject to the next following subsection, be acquitted of the offence.

(3) A person shall not, without the leave of the court, be entitled to rely on the defence provided by subsection (2) of this section unless, not later than seven clear days before the date of the hearing, he has served on the prosecutor a notice in writing giving such information identifying, or assisting in the identification of, the other person in question as was then in his possession.

(4) This section applies to the following provisions, that is to say, sections 63 to 65, 85 to 90, and 93 to 96, and the provisions of any regulations made under any of those sections.”

He emphasised that section 58 (and also sections 52 and 53) is not among the provisions to which section 121 applies. He regarded this omission as a strong indication that Parliament did not intend any implied mens rea requirement in section 58(2)(a).

Role of ministerial orders and exemptions

Lord Goff then relied on section 58(4)–(5), which empowers ministers to create exemptions and to attach conditions. Section 58 provides, in part:

“(4) Without prejudice to the last preceding subsection, any order made by the appropriate ministers for the purposes of this section may provide —
(a) that paragraph (a) or paragraph (b) of subsection (2) of this section, or both those paragraphs, shall have effect subject to such exemptions as may be specified in the order;
(b) that, for the purpose of paragraph (a) of that subsection, a medicinal product shall not be taken to be sold or supplied in accordance with a prescription given by an appropriate practitioner unless such conditions as are prescribed by the order are fulfilled.
(5) Any exemption conferred by an order in accordance with subsection (4)(a) of this section may be conferred subject to such conditions or limitations as may be specified in the order.”

He reasoned that these provisions allow ministers, by order, to carve out carefully limited exemptions, including in respect of cases where there is no fault. This statutory scheme was difficult to reconcile with an implied general defence of honest and reasonable mistake being read directly into section 58(2)(a).

Support from the Medicines (Prescription Only) Order 1980

Lord Goff found that the relevant secondary legislation, the Medicines (Prescription Only) Order 1980, was drafted on the footing that section 58(2)(a) created strict liability. He declined to decide whether the Order could be used as an aid to construction but treated it as confirming that ministers had not understood the section as containing an implied mens rea requirement.

Article 11 of the Order provides:

“The restrictions imposed by section 58(2)(a) (restrictions on sale and supply) shall not apply to the sale or supply of a prescription only medicine by a person who, having exercised all due diligence, believes on reasonable grounds that the product sold or supplied is not a prescription only medicine, where it is due to the act or default of another person that the product is a product to which section 58(2)(a) applies.”

Lord Goff observed that this is a narrower exemption than the broad implied defence of honest and reasonable mistake urged by the defendants, and it is confined to the case where the seller wrongly believes the product is not prescription only.

Similarly, article 13(3) of the Order states:

“The restrictions imposed by section 58(2)(a) (restrictions on sale and supply) shall not apply to a sale or supply of a prescription only medicine which is not in accordance with a prescription given by an appropriate practitioner by reason only that a condition specified in paragraph (2) is not fulfilled, where the person selling or supplying the prescription only medicine, having exercised all due diligence, believes on reasonable grounds that that condition is fulfilled in relation to that sale or supply.”

Again, this confers a limited due diligence defence, but only where a specified condition related to dispensing procedure has not been met. Both articles were described as inconsistent with any broad implied mens rea requirement in section 58(2)(a) itself.

Rejection of the defendants’ arguments

Mr Fisher for the defendants argued that a conviction carried a stigma and that Parliament, had it wished to impose liability on a blameless pharmacist deceived by a forged prescription, would have said so expressly. He also pointed to section 28 of the Misuse of Drugs Act 1971, which affords a specific defence of lack of knowledge or suspicion regarding a fact necessary for conviction, and contended it would be anomalous if such a defence were available for more serious drug offences but not for this regulatory offence.

Lord Goff rejected these submissions in light of the internal structure of the Medicines Act and the specific pattern of express mens rea requirements and express defences. He considered that Parliament had deliberately imposed a stricter regime on pharmacists supplying prescription only medicines.

In endorsing the reasoning of the Divisional Court, he expressly adopted the following passage from Farquharson J:

“… It is perfectly obvious that pharmacists are in a position to put illicit drugs and perhaps other medicines on the market. Happily this rarely happens but it does from time to time. It can therefore be readily understood that Parliament would find it necessary to impose a heavier liability on those who are in such a position, and make them more strictly accountable for any breaches of the Act.”

All members of the House (Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman, Lord Ackner and Lord Goff of Chieveley) agreed that the appeal should be dismissed for the reasons given by Lord Goff.

Implications

The House of Lords held that the offence created by section 58(2)(a), read with section 67(2), is one of strict liability. The prosecution does not have to prove mens rea where a pharmacist supplies prescription only medicines on the basis of a forged prescription, even if acting in good faith and without fault.

The decision confirms that the general common law presumption of mens rea can be displaced where the statutory scheme, read as a whole, indicates a legislative intention to impose strict liability, particularly in the context of public health and safety regulation.

The case illustrates that Parliament may address fairness concerns not by general implications of fault-based liability but by specific, limited statutory defences and exemptions conferred either directly in the Act (such as section 121) or via delegated legislation (such as articles 11 and 13 of the 1980 Order).

Practically, the decision underscores the heavy responsibility on pharmacists to ensure compliance with the prescription only medicines regime and demonstrates that honest and reasonable reliance on apparently valid but forged prescriptions will not exonerate them from criminal liability under section 58(2)(a).

Verdict: Appeal dismissed; the order of the Divisional Court was affirmed, the certified question was answered in the negative (no requirement for the prosecution to prove mens rea under section 58(2)(a)), and the appellants were ordered to pay the respondents’ costs.

Source: Pharmaceutical Society of Great Britain v Storkwain Ltd (1986) 83 Cr App R 359