Lee, R v

For the offence created by section 85(5)(b) of the Medicines Act 1968, the relevant person is the person who carries on the business in the course of which the medicinal product is supplied. A locum pharmacist engaged to work in another's pharmacy does not, without an order under section 106(2), carry on that business merely by practising as a pharmacist.

By contrast, section 64 applies directly to the person who supplies a medicinal product pursuant to a prescription. Where a guilty plea to an unsafe conviction admits the facts of an alternative offence charged on the indictment, the Court of Appeal may substitute a guilty plea and conviction for that offence under section 3A of the Criminal Appeal Act 1968.

A self-employed locum pharmacist checked medication dispensed on a prescription. A label for prednisolone was mistakenly attached to a box containing propranolol. The patient took the propranolol, collapsed and was admitted to hospital, but later died from natural causes unrelated to the error.

At the Central Criminal Court, the appellant pleaded guilty to supplying a medicinal product in misleading packaging contrary to sections 85(5)(b) and 91(1) of the Medicines Act 1968. She received a suspended sentence of imprisonment. A separate count alleging supply of a product not specified in the prescription, contrary to section 64, was left on the file.

The appeal concerned whether a locum pharmacist supplied the product in the course of a business carried on by her for section 85(5). It also raised whether the court should substitute a conviction for the section 64 offence after allowing the appeal.

1. Appeal allowed. The conviction under sections 85(5)(b) and 91(1) of the Medicines Act 1968 was unsafe and was quashed. The appellant did supply the product and the package was objectively likely to mislead. However, section 85(5) applies only where the supply occurs in the course of a business carried on by the supplier.

2. The statutory scheme distinguishes the person who carries on a pharmacy business from a person who carries out a transaction on that person's behalf. Section 132(1), which includes a professional practice within “business”, prevents a professional proprietor from denying that a professional practice is a business. It does not answer whose business was carried on when the product was supplied.

3. On the agreed facts, Tesco Pharmacy, rather than the locum pharmacist, carried on the relevant business. Section 106(2) confirms that distinction: it permits an order to treat an employer's business as a business carried on by the person engaged by the employer. No such order had been made. The appellant was consequently incapable of committing the section 85(5)(b) offence.

4. The court exercised its power under section 3A of the Criminal Appeal Act 1968 to substitute a conviction under section 64(1), read with section 64(5), of the Medicines Act 1968. Applying the two-stage approach in R v R and others [2006] EWCA Crim 1974, the alternative offence was charged on the indictment and the guilty plea admitted facts proving it. The appellant had supplied propranolol, not the prednisolone specified by the prescription.

5. The original suspended custodial sentence was manifestly excessive. The substituted offence did not pass the custody threshold. A fine of £300 was imposed, payable within 28 days, with 14 days' imprisonment in default.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction under sections 85(5)(b) and 91(1) of the Medicines Act 1968, and substituted a conviction under section 64.
• Central Criminal Court: The Recorder of London accepted a guilty plea to the section 85(5)(b) offence and imposed three months' imprisonment suspended for 18 months, with 12 months' supervision. The section 64 count was left on the file.