Pharmaceutical Society of Great Britain v Storkwain Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 19 June 1986 |
| Judgment citation (vLex) | [1986] UKHL J0619-1 |
| Date | 19 June 1986 |
| Court | House of Lords |
[1986] UKHL J0619-1
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Templeman
Lord Ackner
Lord Goff of Chieveley
My Lords,
For the reasons given in the speech of my noble and learned friend Lord Goff of Chieveley, with which I agree, I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley, I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
For the reasons given by my noble and learned friend, Lord Goff of Chieveiey. I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Goff of Chieveley, and for the reasons he gives I would dismiss the appeal.
My Lords,
This appeal is concerned with a question of construction of section 58 of the Medicines Act 1968. Section 58(2)( a) of the Act provides as follows:
"(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) of the Act of 1968, it is provided that any person who contravenes (inter alia) section 58 shall be guilty of an offence. The question which has arisen for decision in the present case is whether, in accordance with the well-recognised presumption, there are to be read into section 58(2)( a) words appropriate to require mens rea, on the principle stated in Reg. v. Tolson (1889) 23 Q.B.D. 168, and Sweet v. Parsley [1970] A.C. 132.
The matter has arisen in the following way. On 2 February 1984, informations were preferred by the respondents, the Pharmaceutical Society of Great Britain, against the appellants, Storkwain Ltd., alleging that the appellants had on 14 December 1982 unlawfully sold by retail certain medicines. It was alleged that they unlawfully sold by retail, to a person purporting to be Linda Largey, 200 Physeptone tablets and 50 Ritalin tablets; and further, that they unlawfully sold by retail, to a person purporting to be Thomas Patterson, 50 ampoules of Physeptone and 30 Valium tablets. All these medicines are substances controlled under article 3(1)( b) of the Medicines (Prescription Only) Order 1980 ( S.I. 1980, No. 1921); and the informations alleged in each case that the sale was not in accordance with a prescription issued by an appropriate practitioner, contrary to section 58(2) and section 67(2) of the Act of 1968. Before the magistrate, the evidence (which was all agreed) was to the effect that the medicines were supplied under documents which purported to be prescriptions signed by a doctor, Dr. Irani, of Queensdale Road, London; but that subsequent inquiries revealed that the prescriptions were both forgeries. It was submitted on behalf of the appellants that the presumption of mens rea applied to the prohibition in section 58(2)( a) of the Act of 1981; and that, the medicines having been supplied by the appellants on the basis of prescriptions which they believed in good faith and on reasonable grounds to be valid prescriptions, the informations should be dismissed. The magistrate accepted that submission and accordingly dismissed the informations; but he stated a case for the opinion of the High Court, the question for the opinion of the court being whether or not mens rea was required in the case of a prosecution under sections 58(2) and 67(2) of the Medicines Act 1968. On 2 May 1985, a Divisional Court (Farquharson and Tudor Price JJ.) answered the question in the negative, and accordingly allowed the appeal of the respondents and directed that the case should be remitted to the magistrate with a direction to convict. The Divisional Court certified the following point of law as being of general public importance:
"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 defendant in accordance with a forged prescription and without fault on his part."
From that decision, the appellants now appeal with leave of your Lordships' House, the Divisional Court having refused leave.
In order to consider this question, it is first necessary to set out the provisions of the Act of 1968 which are of immediate relevance. Under Part III of the Act of 1968, medicinal products (as defined by the Act) are segregated into three categories. These are: (1) the general sale list, which comprises medicines which can be sold otherwise than under the supervision of a pharmacist; (2) pharmacy only medicines, which can be supplied only under the supervision of the pharmacist; (3) prescription only medicines, which can only be supplied in accordance with a prescription given by an appropriate practitioner. Secton 51 makes provision for the general sale list. Section 53 provides for the conditions under which medicinal products on the general sale list may be sold, and, "subject to any exemption conferred by or under this Part of this Act," prohibits (inter alia) retail sales elsewhere than at a registered pharmacy unless those conditions are fulfilled. Section 52 provides for pharmacy only products, in that, "subject to any exemption conferred by or under this Part of this Act," it prohibits (inter alia) retail sales of any medicinal product not on a general sale list, unless certain conditions are complied with, including a requirement that the transaction is carried out by a person who is, or who acts under the supervision of, a pharmacist. Sections 55, 56 and 57 provide for exemptions from sections 52 and 53. The exemptions in section 55 are for doctors, dentists, veterinary surgeons and veterinary practitioners; those in section 56 are in respect of herbal remedies; and section 57 confers power on the appropriate Ministers to extend or modify the exemptions relating to sections 52 and 53. Prescription only products are legislated for in section 58. Since this is the most relevant section for the purposes of the present appeal, I shall set it out in full:
"(1) The appropriate Ministers may by order specify descriptions or classes of medicinal products for the purposes of this section; and, in relation to any description or class so specified, the order shall state which of the following, that is to say - ( a) doctors, ( b) dentists, and ( c) veterinary surgeons and veterinary practioners, are to be appropriate...
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