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Concerns raised over CPS impact on Lee appeal

by News team

Serious concerns have been expressed by the Pharmacists' Defence Association over the actions of the Crown Prosecution Service during Elizabeth Lee’s recent appeal court hearing.

In a letter sent this week to CPS chief executive Peter Lewis and pharmacy minister Earl Howe, the PDA calls on the CPS to agree a date for publication of protocols giving guidance on how the law relating to single dispensing errors should be interpreted — which were first promised nearly a year ago but have yet to be published.

The PDA claims that during last week’s appeal court hearing, after conferring with a CPS legal representative, the prosecution announced that talks on the protocols had reached an impasse and their release was not imminent.

This effectively derailed the defence prepared by Mrs Lee’s legal team which, the PDA says, “sought on two occasions to use the imminent release of the CPS protocols to secure a more favourable outcome” (see Panel).

According to the PDA, the prosecution team said that they had no idea how long it would take for release of the protocols, and indicated they could take as long as a year.

PDA Union general secretary, John Murphy, said the CPS’s assurances that it understands the need for protocols and is actively seeking to deliver them do not match its actions.

“During the appeal hearing, they had an opportunity to embody their words into actions, they could have allowed the defence efforts to use the imminent release of the protocols to produce a more favourable outcome for Elizabeth Lee, but they chose not to.

“Worse still, they even told the judges that they would ensure that Elizabeth Lee would face further CPS attention in the event that the judges left her original Section 64.1 offence [supplying the wrong product] in abeyance — as was the request of the defence,” he said.

“In light of what happened in the Court of Appeal, it is no longer acceptable to continue with the old message that ‘the protocols are imminent’,” said Mr Murphy. In its letter the PDA has asked the CPS to give an accurate assessment of the current status of the protocol, so that the PDA can decide what advice it needs to offer pharmacists to help them minimise their risk of prosecution.

The CPS was unable to provide a response to the PDA’s criticisms, but a CPS spokeswoman told The Pharmaceutical Journal: “The CPS, the Medicines and Healthcare products Regulatory Agency and the Department of Health have drafted interim guidance for crown prosecutors to safeguard the public while ensuring that dispensing errors are dealt with in a proportionate way.

“This guidance is still under discussion and will be published once agreed.”

Appeal court defence

Elizabeth Lee’s 2009 conviction for a dispensing error was made under Section 85.5 of the Medicines Act 1968, for supplying a medicinal product with a misleading label on the package. The Section 64.1 offence of supplying the wrong product was left in abeyance.

PDA chairman Mark Koziol told The Pharmaceutical Journal that during last week’s High Court appeal of the conviction, the defence team’s first argument was for the appeal to be delayed until publication of the CPS protocols— which the authorities had constantly indicated was imminent.

“Our plan A was to play our strongest card which is to ask, because these guidelines are imminent, what public interest there was in the proceedings. I felt the judges appeared very sympathetic to that view, but the suggestion was stopped dead when the prosecution barrister spoke to the CPS officer and entirely disabused the judges on the imminence of the guidelines,” he said.

At a later stage in the trial it became clear that Mrs Lee’s original conviction for a labelling offence was likely to be successfully overturned, and attention would be turned to the Section 64.1 (wrong product supplied) offence that had previously been left in abeyance, said the PDA.

“The defence team argued that the judges should continue to leave this offence in abeyance, [that] Elizabeth Lee had not previously pleaded guilty to it and that, if it was left fully alone, then the effect of the CPS protocols (when they came) would mean that the CPS would not be proceeding with a prosecution.

“Had the judges agreed with this, then Elizabeth Lee would have left the court with no remaining criminal conviction,” it said.

Mr Koziol explained: “The prosecution said they would pursue a prosecution on the Section 64.1 charge in that case, and would not have tolerated it lying on the table, which closed down the options.”

He said that, because Mrs Lee did not want to endure the stress of further court appearances, the judges did not rule for the case on the Section 64.1 offence to be heard, leaving the overturned Section 85.5 conviction to be substituted with the Section 64.1 offence.

Citation: The Pharmaceutical Journal URI: 11012947

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  • Mark Koziol

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