Pharmaceutical Society of Great Britain v Storkwain Ltd

The presumption that a statutory offence requires mens rea may be displaced by the language and structure of the legislation. Under section 58(2)(a) of the Medicines Act 1968, selling or supplying a prescription-only medicine otherwise than in accordance with a prescription given by an appropriate practitioner is an offence of strict liability.

A forged document is not such a prescription. An honest and reasonable belief that it is genuine provides no implied defence. The express inclusion of fault requirements and due-diligence defences elsewhere in the statutory scheme, together with the power to create limited exemptions, demonstrates Parliament’s intention that no general mens rea requirement should be implied.

A pharmacist employed by Storkwain Ltd supplied prescription-only medicines under documents which appeared to be prescriptions signed by a doctor. The documents were subsequently found to be forgeries. The magistrate accepted that the pharmacist had acted honestly, reasonably and without fault, and dismissed informations alleging contraventions of sections 58(2)(a) and 67(2) of the Medicines Act 1968.

The Divisional Court, reported at [1985] 3 All ER 4, allowed the prosecutor’s appeal and directed the magistrate to convict. The company appealed to the House of Lords. The certified question was whether the prosecution had to prove mens rea where prescription-only medicines had been supplied under a forged prescription without fault on the supplier’s part.

1. The appeal was dismissed unanimously. Lord Goff of Chieveley delivered the leading speech. Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner agreed with his reasoning. The certified question was answered in the negative, and the Divisional Court’s order was affirmed.

2. Per Lord Goff, the presumption of mens rea recognised in Reg v Tolson (1889) 23 QBD 168 and Sweet v Parsley [1970] AC 132 was displaced by the language and structure of the Medicines Act 1968. Parliament had expressly required mens rea in sections 45 and 46. Section 121 also provided a detailed due-diligence defence for specified provisions, including sections 63 to 65, but omitted section 58. That deliberate contrast showed that no corresponding fault requirement was to be implied into section 58(2)(a).

3. Sections 58(4)(a) and 58(5) reinforced that conclusion. They authorised ministers to create exemptions and to make those exemptions subject to conditions or limitations. An unrestricted implied defence based on honest and reasonable belief would be inconsistent with that power to prescribe narrower exemptions.

4. The Medicines (Prescription only) Order 1980 was consistent with this construction. Article 11 created a confined exemption where due diligence had been exercised and another person’s default caused the contravention. Article 13 imposed detailed conditions which presupposed a valid prescription and created only a limited due-diligence exemption for failure to satisfy those conditions. These provisions were inconsistent with a wider defence implied into section 58(2)(a).

5. Accordingly, a sale under a forged prescription was not made in accordance with a prescription given by an appropriate practitioner. The supplier’s honest and reasonable belief in the document’s validity did not prevent liability. Parliament was entitled to make pharmacists strictly accountable because of their position in controlling the supply of prescription-only medicines. The appeal was dismissed with costs.

1. House of Lords: The company’s appeal was dismissed unanimously. The certified question was answered in the negative, and the Divisional Court’s order was affirmed.

2. Divisional Court of the Queen’s Bench Division: Farquharson and Tudor Price JJ, reported at [1985] 3 All ER 4, held that mens rea was not required. The prosecutor’s appeal was allowed, and the matter was remitted to the magistrate with a direction to convict.

3. Magistrates’ court: The informations were dismissed because the medicines had been supplied in the honest and reasonable belief that the forged prescriptions were valid. A case was stated for the opinion of the High Court.