Zagorski & Baze, R (on the application of) v Secretary of State for Business, Innovation and Skills & Anor

The First Claimant, Mr. Edmund Zagorski, is a citizen of the United States of America. In May 1983 he was charged with two homicides in the State of Tennessee. He was convicted and sentenced to death. Mr. Zagorski has been on death row in Tennessee since 27^th March 1984. His execution is currently scheduled for 11^th January 2011.

The Second Claimant, Mr. Ralph Baze, is also a citizen of the United States of America. In 1992 he was arrested for the killing of two police officers in Powell County, Kentucky. He was convicted and sentenced to death in February 1994. Mr. Baze has been on death row in Kentucky since that time. His execution was scheduled for 16^th September 2010 but was cancelled following a stay of execution by the Kentucky Supreme Court. On his behalf it is said that the stay could be vacated and a new execution date set at any time.

Executions in Tennessee and Kentucky, in common with many other States of the USA, are carried out by lethal injection. The required method involves the injection of an anaesthetic, Sodium Thiopental, followed by injections of Pancuronium Bromide and Potassium Chloride. The injection of Sodium Thiopental plays a crucial role because it is meant to act as the anaesthetic that renders the prisoner unconscious before the administration of the other drugs.

By this application for judicial review the Claimants challenge the decisions of the Secretary of State for Business, Innovation and Skills refusing to impose a control pursuant to the Export Control Act 2002 on the export of Sodium Thiopental from the United Kingdom to the United States.

These proceedings have been brought before the court as a matter of great urgency. As a result, the factual and legal issues have developed very significantly. It is therefore necessary to refer in some detail to the history of the proceedings.

By letter dated 28^th October 2010 Leigh Day & Co. (“Leigh Day”), acting on behalf of the First Claimant, wrote to the Defendant, informing him that the State of Tennessee plans to import a quantity of Sodium Thiopental for use in the execution of the First Claimant on 11^th January 2011 and that the drug may be imported from the United Kingdom. It stated that supplies of the drug in the United States are nearly exhausted and that on 25^th October 2010 Mr. Jeffery Landrigan was executed by the State of Arizona, using Sodium Thiopental which had been imported via intermediaries from the United Kingdom. It further stated that Archimedes Pharma UK Ltd. (“Archimedes”) is the only company in the United Kingdom which manufactures Sodium Thiopental. The letter invited the Defendant to confirm by close of business the next day, Friday 29^th October, that he would impose an immediate export ban on Sodium Thiopental. The letter also stated that in the absence of such confirmation an application would be made to the court on Monday 1^st November for judicial review and/or an injunction.

By letter dated 29^th October 2010 the Defendant informed Leigh Day that he was giving the very important issues raised in their letter careful consideration and he aimed to provide a substantive reply early in the following week.

By a further letter sent on the morning of 1^st November 2010 Leigh Day provided further information in relation to the factual circumstances of the Claimant and the proposed method of execution. They set out in greater detail the reasons they considered that an export ban was required. They invited the Defendant to exercise his powers under the Export Control Act 2002. In particular, they invited him to make an order pursuant to sections 2 and 5(4) and paragraphs 2 and 3(2)D(d) of the Schedule, on the basis that the exportation or use of Sodium Thiopental is capable of having as a consequence the carrying out of breaches of human rights or acts which facilitate breaches of human rights. In this regard the letter referred to the length of time the First Claimant had spent under sentence of death and asserted that his execution “would constitute the clearest possible breach of his human rights as protected by the European Convention on Human Rights”. The letter maintained that for the Defendant to refuse to act would be contrary to the clear purpose of the 2002 Act and would be contrary to section 6, Human Rights Act 1998.

By letter dated 1^st November 2010 which responded to both of Leigh Day’s letters, the Defendant stated that the United Kingdom firmly opposes the death penalty in all circumstances as a matter of principle. He stated that he was very concerned about the possibility of drugs from the United Kingdom being used in executions in the United States. He stated that Sodium Thiopental is licensed in the United Kingdom for use as a general anaesthetic and has a number of other legitimate uses. The letter went on to explain that there are no controls on exporting the drug as it does not appear on any EU or UK strategic control list and therefore no export licence is required to export the drug to the United States. The Defendant considered that EU Council Regulation 1236/2005 (“the Torture Regulation”) did not apply to this case. The letter continued:

“It follows that, as things stand, I have no power to prevent individual shipments of Sodium Thiopental. I have considered in the light of your letter whether I should exercise my power under the Export Control Act 2002 to make an Order controlling the export of Sodium Thiopental, whether to the United States or generally. The effect of such an order would be to require any exporter of Sodium Thiopental to seek a licence where the conditions of the Order apply. However, I have reached the conclusion that this would not be justified.

My reasoning for this is as follows. Sodium Thiopental is a medicine. Its primary use is as an anaesthetic. Indeed it appears on the World Health Organisation’s Model List of Essential Medicines. It follows from this that legitimate trade of medical value would be affected by any restriction on the export of this product from the UK. Furthermore, I have considered the fact that an export restriction imposed by the United Kingdom is very unlikely to be effective in preventing any execution from taking place in the United States, given that the drug is generally available and traded globally.”

The following day, 2^nd November 2010, the Claimant issued an application for permission to apply for judicial review and an application for urgent consideration. On the same day Mr. Justice Calvert-Smith granted permission to apply for judicial review, ordered that the matter be expedited and heard on the first available date and in any event by 19^th November 2010.

The factual basis on which these proceedings were commenced is set out in the first witness statement of Mr. Paul Bottei, an Assistant Public Defender in the State of Tennessee, who represents the First Claimant there. He explained that Hospira is the only company in the United States licensed by the Food and Drug Administration (“FDA”) that manufactures Sodium Thiopental. Hospira has suspended production and will not make any more at least until the first quarter of 2011. Thirty six States in the United States use lethal injection as one or the exclusive method of execution. He believed that the State of Tennessee had only one “dose” of Sodium Thiopental available. There were two men scheduled to be executed before Mr. Zagorski. It was Mr. Bottei’s belief, founded on a document received in response to a Public Records Act request, that the State of Tennessee was currently seeking to secure additional supplies of Sodium Thiopental from a foreign source. The document showed that the State of Tennessee was seeking to obtain initially 20 vials of 500 mg Sodium Thiopental and a total of 40 grams Sodium Thiopental for a purchase price of $18,000. The name of the broker or agent who was intended to supply the drugs has been redacted in the document. However Mr. Bottei considered that it was highly probable that the State of Tennessee was seeking to purchase these drugs from England. In this regard he pointed, first, to the fact that the Attorney General of Arizona announced in late October 2010 that Arizona had purchased Sodium Thiopental from the United Kingdom which was used in the execution of Mr. Jeffrey Landrigan. Secondly he believed that drugs purchased for executions in California may have come from the United Kingdom.

Mr. Bottei submitted that if the State of Tennessee had not obtained a supply of Sodium Thiopental by 11^th January 2011 it would be unable to execute the First Claimant under its Lethal Injection Protocol on that date. The importance of Sodium Thiopental is that it is part of a protocol that has been approved, with limitations, by the US Supreme Court in Baze v Rees 553 US 35 (2008). There the Supreme Court held that a protocol calling for the injection of 2 grams of Sodium Thiopental, 50 mg of Pancuronium Bromide and 240 milliequivalents of Potassium Chloride could be constitutional in certain circumstances. According to Mr. Bottei various issues nevertheless remain unresolved. One is whether the drug has been legally secured for a particular execution. In the case of Jeffrey Landrigan the United States District Court entered a stay of execution which was upheld by the Ninth Circuit Court of Appeals given uncertainty about the source of the drug and whether it met the requirements of Baze. However on 26^th October 2010 in Brewer v. Landrigan (No. 10A416, Oct. 26, 2010) the US Supreme Court (by 5 votes to 4) vacated the stay stating:

“The application to vacate the order by the district court granting a temporary restraining order, presented to Justice Kennedy and by him referred to the Court is granted. There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it is left to speculate as to the risk of harm. See order granting Motion for a Temporary Restraining Order in Landrigan v Brewer, No. CV/10/02246/PHX/ROS (D Ariz.), Doc. 21, p. 15 (“[T]he Court is left to speculate…whether the non-FDA approved drug would cause pain and suffering”). But speculation cannot substitute for evidence that the use of the drug is “sure or very likely to cause serious illness and needless suffering”. Baze v Rees, 553 US 35, 50 (2008) (quoting Helling v McKillney 509 US 25, 33 (1993)). There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.”

In a second witness statement dated 8^th November 2010 Mr. Bottei deals with a second Public Records Act response received by his office from the Tennessee authorities on 4^th November 2010. The original disclosure indicated that Tennessee had sufficient Sodium Thiopental for only one execution and included an email referencing a “sales agreement” dated 30^th September 2010 that indicated that a further supply of Sodium Thiopental would be ready for shipment in eight to ten weeks. The Tennessee authorities have now disclosed two additional documents dated 30^th September 2010 which are sales order forms for 80 vials of Sodium Thiopental at a cost of $18,000 and 60 vials of Sodium Thiopental at a cost of $13,500. The newly disclosed documents also show that three additional doses of Sodium Thiopental (each of which comprises of 20 vials of 500mg) were obtained by the State of Tennessee by the 26^th October 2010. In the light of this, Mr. Bottei now accepts that it seems that the State of Tennessee has obtained sufficient Sodium Thiopental to execute four prisoners. These executions would include the execution of the First Claimant on 11^th January 2011. The order does not disclose the source of supply. Mr. Bottei concedes: “At present there is no information available as to the immediate and ultimate sources of the drug in that order or the supply chain.”

However, Mr. Bottei questions whether this further supply of Sodium Thiopental has been lawfully obtained by the State of Tennessee and indicates his intention to argue before the US courts that it cannot be used in the Claimant’s execution since it was unlawfully obtained. For this reason he believes that it continues to be of importance for the Claimant that the possibility of the drug being obtained in the United Kingdom be closed. He also points to the fact that there are currently close to 90 prisoners on death row in Tennessee and that the State of Tennessee will need to obtain additional supplies of the drug in order to carry out executions in the future. He also draws attention to press reports that other States have run out of Sodium Thiopental and may be seeking to replenish their stock of the drug through purchases from overseas.

In a witness statement dated 8^th November 2010, Mr. Clive Stafford Smith, the Director of the British charity “Reprieve” and a practising lawyer in the United States, emphasises the importance of Sodium Thiopental because it is the anaesthetic which is meant to ensure a painless death. He provides details of the current shortage of Sodium Thiopental in a number of US States and also indicates that it will be argued on behalf of a number of condemned prisoners that the use of unlawfully obtained supplies of Sodium Thiopental would render executions unconstitutional.

On 8^th November 2010 Archimedes, which had been served with the proceedings as an interested party, filed and served an Acknowledgement of Service.

On 9^th November 2010 Leigh Day applied on behalf of Mr. Ralph Baze for permission that he be joined as Second Claimant in the proceedings. Mr. Baze is one of five men facing imminent execution in the State of Kentucky. At present a date for his execution is awaited. The setting of that date is dependent upon the State of Kentucky securing sufficient drugs to carry out the execution by lethal injection. Mr. David Barron, an Assistant Public Advocate in the Kentucky Department of Public Advocacy who acts on behalf of Mr. Baze there, explains in his witness statement that it is a legal requirement in Kentucky that Sodium Thiopental is employed and without it the execution cannot proceed. Mr. Barron explains the grounds of his belief that the State of Kentucky does not apparently have any supplies of Sodium Thiopental with which to conduct the execution and that it is seeking to purchase quantities of Sodium Thiopental from outside the United States and in particular from the United Kingdom. He states that “it seems highly likely that the Kentucky Department of Corrections will seek to obtain the drug from the UK or from another State or supplier who has obtained the drug from the UK”.

At the start of the hearing before me I granted permission to Mr. Baze to be joined as Second Claimant in these proceedings.

On 9^th November 2010 Leigh Day lodged and served witness statements by Maya Foa, a legal intern with “Reprieve UK” and Steven Shafer, Professor of Anaesthiology at Columbia University, relating to the extent of the clinical use of Sodium Thiopental.

On 12^th November 2010 Archimedes filed and served its outline submissions and a witness statement by one of its directors, Mr. Michael Clark. Archimedes explains that it is the only company that is authorised to market Sodium Thiopental within the United Kingdom.

Archimedes does not oppose the application. It has been represented at the hearing before me by Ms. Kelyn Bacon in order that the court may be fully informed of the facts concerning Archimedes’ role in the distribution of Sodium Thiopental and the uses of that product within and, in so far as it is within Archimedes’ knowledge, outside the United Kingdom.

On 27^th October 2010 Archimedes had published the following statement:

“Archimedes Pharma holds a marketing authorisation for Sodium Thiopental, an anaesthetic licensed in the UK for general anaesthesia and other indications. The Company supplies the product in the UK, in accordance with regulations, through the recognised pharmaceutical supply chain, primarily to wholesalers and hospital pharmacies. Consistent with applicable regulations the Company does not have information on specific end purchases or users of its products. The Company neither exports the product to the US for any purpose nor is it aware of any exports of the product.”

The witness statement of Mr. Michael Clark explains that:

Archimedes points out that it has always complied with all relevant legal provisions in relation to the marketing of Sodium Thiopental. Indeed, the contrary is not suggested in these proceedings.

It is convenient to record at this point that although Archimedes is the only marketing authorisation holder for Sodium Thiopental in the United Kingdom other companies may lawfully export Archimedes’ Sodium Thiopental product from the United Kingdom. Archimedes does not, however, have any information on what companies other than itself actually do export its product from the United Kingdom.

In light of the further evidence lodged by the Claimant and the changed circumstances, officials within the Department of Business Innovation and Skills considered that it was right that the Secretary of State should be appraised of these developments. Accordingly a second submission was prepared dated 12^th November 2010. This drew attention, in particular, to the following matters:

The Secretary of State read and considered that submission. His private office confirmed on Monday 15^th November 2010 that he had decided to re-affirm his decision not to impose controls on the export of Sodium Thiopental for the reasons contained in the submission.

The reasons set out in the submission to the Defendant dated 12^th November 2010 and which were adopted by the Defendant may be summarised as follows:

On 15^th November 2010 the Defendant filed and served his Acknowledgement of Service and detailed grounds for resisting the claim in which he reaffirmed the opposition of Her Majesty’s Government to the death penalty in all circumstances but maintained that his decision to refuse to impose an export control order was lawful.

A hearing took place before me on Wednesday 17^th November 2010. Argument could not be completed on that day and the case was adjourned to Monday 22^nd November for further argument, that being the first day on which all counsel were available.

Shortly before the resumed hearing on 22^nd November the Defendant served the Third Witness Statement of Mr. Thomas Smith. That statement drew attention to the response from the US Food and Drug Administration (“FDA”) received on 16^th November and which had been before the court at the hearing on 17^th November which stated that “[t]here are no approved or permitted foreign sources of sodium thiopental in the United States”. On further consideration of this document and the FDA’s Compliance Policy on Unapproved Drugs, Mr. Smith considered that it was not immediately clear whether drugs sourced outside the United States can be legally imported or marketed without FDA approval, whether under this policy or otherwise. He therefore sought clarification from the FDA. The response from the FDA, received in the early hours of 22^nd November, stated that the FDA was not in a position to authorise any further response at this time. In these circumstances Mr. Smith concluded that he had to work on the basis that it was at least possible that (a) any US importer seeking to import Sodium Thiopental into the United States for medical uses would be acting unlawfully and (b) there is therefore currently no possibility of lawful trade with the United States in this product for medical purposes. Mr. Smith had then considered whether he could say that this possibility, if true, could not have made a difference to the Defendant’s decision. He decided that he could not say that. In these circumstances he concluded that if, after further research, that possibility was shown to be the true position, he would need to ask the Defendant to reconsider the matter.

At the hearing on 22^nd November, after hearing the parties as to the future conduct of the proceedings I declined the invitation of the Defendant to rule on the rationality of a hypothetical decision in the light of the considerations which would be put before the Defendant when he was deciding whether to exercise his discretion to make an export control order on the footing that there is currently no legally permitted trade in sodium thiopental between the United States and any other country. I granted a further short adjournment to enable the Defendant to establish the true position in relation to the import of the drug into the United States and, if so advised, to reconsider his decision. I adjourned the argument on the rationality challenge to a date to be fixed in the week commencing 29^th November 2010. Later that day I heard an application for interim relief which I refused.

The time available on 22^nd November was then used to complete the argument on the other grounds of challenge, which are essentially points of law, so as to enable me to deliver a preliminary ruling on those points. At the conclusion of the hearing I informed the parties of the outcome on those issues and I now set out my reasons in this judgment.

The Export Control Act 2002 empowers the Defendant by order to make provision for or in connection with the imposition of export controls in relation to goods of any description. (Section 1 (1)). Goods may be described in the order wholly or partly by reference to the uses to which they may be put. (Section 1 (3)). This power is however subject to Section 5 which provides in relevant part:

“5.

General restriction on control powers.

(1)

Subject to Section 6, the power to impose export controls, … may only be exercised where authorised by this section.

(2)

Controls of any kind may be imposed for the purpose of giving effect to any Community provision or other international obligation of the United Kingdom.

(3)

In subsection (2) “international obligation” includes an obligation relating to a joint action or common position adopted, or a decision taken, by the Council under Title V of the Treaty on European Union (provisions on a common foreign and security policy).

(4)

Export control may be imposed in relation to any description of goods within one or more of the categories specified in the Schedule for such controls.

…”

Section 6 provides:

Exceptions from the general restriction.

The Schedule provides in paragraph 2(1) that “export controls may be imposed in relation to any goods the exportation or use of which is capable of having a relevant consequence”. For this purpose a relevant consequence is a consequence (direct or indirect) of a kind mentioned in the Table. The Table includes under the heading “Breaches of international law and human rights”:

“D The carrying out anywhere in the world of (or of acts which facilitate)

…

(d)

Breaches of human rights.”

The Defendant may by order modify the provisions of the Schedule (section 12). A statutory instrument containing a control order made by virtue of Section 6 (1) is required to be laid before Parliament but, unless it is approved by resolution of each House before the end of a period of 40 days beginning with the day on which it is made, shall cease to have effect at the end of that period. (Section 13 (2)). A statutory instrument containing an order under Section 12 modifying the Schedule shall not be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament (Section 13 (4)). A statutory instrument containing an order under Section 1 which is not made by virtue of Section 6 (1) is subject to annulment in pursuance of a resolution of either House of Parliament.

The Export Control Order 2008 is made in exercise with the powers conferred by Section 2(2), European Communities Act 1972 and the Export Control Act 2002. It gives effect, inter alia, to Council Regulation (EC) 1236/2005 (“the Torture Regulation”).

It was common ground before me that the Export Control Order 2008 does not prohibit the export of Sodium Thiopental. Rather, the Claimants maintain the Defendant has acted unlawfully in refusing to exercise his powers under the Export Control Act 2002 to make an order prohibiting its export to the United States.

Export controls fall within the European Union’s Common Commercial Policy under Article 207 of the Treaty on the Functioning on the European Union (“TFEU”) (formerly Article 133 of the European Community Treaty).

Council Regulation (EC) 1061/2009 is the principal EU instrument establishing common rules for exports and regulating export controls. The basic principle is laid down in Article 1:

“The exportation of products from the European Community to third countries shall be free, that is to say, they shall not be subject to any quantitative restriction, with the exception of those restrictions which are applied in conformity with the provisions of this regulation.”

However Article 10 permits Member States to derogate from the basic principle:

“Without prejudice to any other Community provisions, this Regulation shall not preclude the adoption or application by a Member State of quantitative restrictions on exports on grounds of public morality, public policy or public security; the protection of health and life of humans, animals and plants; the protection of national treasures possessing artistic, historic or archaeological value, or the protection of industrial and commercial property.”

Council Regulation (EC) 1236/2005 (“the Torture Regulation”) deals specifically with trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. The recitals to the regulation include the following:

“(3)

Article (2) of the Charter of Fundamental Rights of the European Union states that no one shall be condemned to the death penalty or executed…

a.

Article 4 of the Charter states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

…

[The “Guidelines to the EU policy toward third countries, on torture and other cruel, inhuman or degrading treatment or punishment”] also provide for third countries to be urged to prevent the use and production of, and trade in, equipment which is designed to inflict torture or other cruel, inhuman or degrading treatment or punishment and prevent the abuse of any other equipment to these ends. They also make the point that the prohibition of cruel, inhuman or degrading punishment imposes clear limits on the use of the death penalty. Therefore and in line with these texts, capital punishment is not to be considered a lawful penalty under any circumstances.

…

(7)

It is therefore appropriate to lay down Community rules on trade with third countries in goods which could be used for the purpose of capital punishment and in goods which could be used for the purpose of torture and other cruel, inhuman or degrading treatment or punishment. These rules are instrumental in promoting respect for human life and fundamental human rights and thus serve the purpose of protecting public morals. Such rules should ensure that Community economic operators do not derive any benefits from trade which either promotes or otherwise facilitates the implementation of policies on capital punishment or on torture and other cruel, inhuman or degrading treatment or punishment, which are not compatible with the relevant EU Guidelines, the Charter of Fundamental Rights of the European Union and international conventions and treaties.

…

(10)

It is also necessary to impose controls on exports of certain goods which could be used not only for the purpose of torture and other cruel, inhuman or degrading treatment or punishment, but also for legitimate purposes. These controls should apply to goods that are primarily used for law enforcement purposes and, unless such controls prove disproportionate, to any other equipment or product that could be abused for the purpose of torture and other cruel, inhuman or degrading treatment or punishment, taking into account its design and technical features.”

The Regulation then lays down the EU rules on trade with countries in such goods. Article 3 provides:

“1.

Any export of goods which have no practical use other than for the purpose of capital punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or punishment, listed in that Annex II, shall be prohibited, irrespective of the origin of such equipment.”

The items listed in Annex II do not include Sodium Thiopental. Indeed the Annex states that it does not cover medical-technical goods. No drugs are included in Annex II.

Article 5 of the Regulation provides in relevant part:

“(1)

For any export of goods that could be used for the purpose of torture and other cruel, inhuman or degrading treatment or punishment, listed in Annex III, an authorisation shall be required, irrespective of the origin of such goods…”

Sodium Thiopental is not included in the list of goods in Annex III. The only chemical substances included are two substances for the purpose of riot control or self protection.

Although it is submitted on behalf of the Claimants that the failure of the Defendant to impose an export ban is contrary to “the principles enshrined in the Torture Regulation” (Grounds of Claim paragraph 33 (ii)), I do not understand it to be contended that the Torture Regulation imposes an obligation on the Defendant to ban the export of Sodium Thiopental. Sodium Thiopental does not fall within either of the two categories of goods addressed by Article 3 (and Annex II) and Article 5 (and Annex III) respectively. The Torture Regulation imposes precise prohibitions on the export of certain specified goods and a requirement to impose authorisational requirements on certain other specified goods. It does not impose a general prohibition on the export of goods which “could be used” for the purpose of capital punishment nor does it require Member States to impose export controls on such goods.

Contrary to the submission of the Claimants (Grounds of Claim, paragraph 24) the 2008 Order does not establish “the principle of controlling the export of goods which might be used in connection with capital punishment”. The 2008 Order deals with certain specified goods which are “designed for” the execution of human beings. The goods so specified in paragraph 1 of Part 1 of the Schedule are those listed in paragraph 1 of Annex II to the Torture Regulation. Thus the 2008 Order does not expand the list of controlled goods beyond those specified in Annex II to the Torture Regulation.

Furthermore, contrary to the Claimants’ submission, the 2008 Order does not deal with an “extremely wide range of goods, including many which have legitimate uses apart from their connection with torture etc.” (Grounds of Claim, paragraph 24.) The 2008 Order deals with a wide range of military goods ( Schedule 2) but only with a limited group of goods which could be used in torture (Schedule 1, paragraphs 2-5 which closely resemble Annex II, paragraph 2 and Annex III, paragraphs 1 and 2 to the Torture Regulation).

It was common ground before me that the treatment which the States of Tennessee and Kentucky respectively have accorded and which they propose to accord to these Claimants constitutes a clear failure to meet the standard set by Article 3 ECHR (which prohibits inhuman or degrading treatment or punishment) and the standard applied by the Privy Council, on appeal from Jamaica, in Pratt v. Attorney General for Jamaica [1994] 2 AC 1 (in which the Privy Council observed that in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute “inhuman or degrading punishment or other treatment”). However, this is far from determinative of the issues which fall for decision on this application for judicial review.

By the time of the hearing on 17^th November three legal grounds of challenge were advanced by Miss Natalie Lieven QC who appeared for the Claimants. She submitted that the failure of the Defendant to act to prevent the export of Sodium Thiopental to the United States when there is strong reason to believe that it will be used for the purposes of executing the Claimants:

In the claim as originally formulated it had been contended on behalf of the Claimants that the failure of the Defendant to act to prevent the export of the drug was an infringement of Articles 2 and 3, European Convention on Human Rights and Article 1 of the Thirteenth Protocol to that Convention and that section 6, Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. That ground was not pursued at the hearing. However it is necessary to address it at this point because it has an important bearing on the Claimants’ arguments on EU law.

In the Grounds of Claim the First Claimant maintained that the decision of the Defendant was unlawful “in the face of a real risk that the Claimant will suffer a breach of, inter alia, Article 3 and other Convention rights”. The First Claimant pointed to the positive obligation on States to act to protect life and to prevent violations of Article 3. In particular, Article 3 was said to be relevant because “[i]n Soering v. UK (1989) 11 EHRR 439, the European Court of Human Rights held that extradition to the United States, with the prospect of being held on death row for 6-8 years, would give rise to a breach of Article 3 ECHR.” It was submitted that the applicable test was whether there were substantial grounds for believing that the Claimants face a real risk of violation of their ECHR rights.

At the start of the hearing before me, Miss Lieven accepted, correctly in my view, that these Claimants are not entitled to the protection of the Convention.

Article 1 of the Convention provides:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.”

In Bankovic v Belgium and Others (2007) 44 EHRR 1 the Grand Chamber of the European Court of Human Rights gave an authoritative explanation of the concept of jurisdiction under the Convention:

“59.

As to the “ordinary meaning” at the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State’s exercise of jurisdiction extra-territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States…

60.

Accordingly, for example, a State’s competence to exercise jurisdiction over its own nationals abroad is subordinate to that State’s and other States’ territorial competence… In addition, a State may not actually exercise jurisdiction on the territory of another without the latter’s consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects…

61.

The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case…”

In R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153 the House of Lords accepted that the unanimous decision of the Grand Chamber in Bankovic was an authoritative exposition of the concept of jurisdiction under Article 1. (See Lord Rodger at para 68; Lord Brown at para 108). Furthermore, it is established that courts within the United Kingdom should not construe “jurisdiction” in Article 1 as reaching any further than the existing Strasbourg jurisprudence clearly establishes. (Al-Skeini per Lord Brown at para 107; R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2010] 3 WLR 223 per Lord Phillips at para 60.)

In the present case the obligation of the United Kingdom under the Convention does not extend to securing Convention rights to these Claimants. The Claimants are US citizens convicted and sentenced by US Courts in respect of offences committed in the United States. They are being held in the United States. They face a penalty imposed in accordance of the laws of the United States which will be implemented there. They are not and never have been at any material times within the territorial jurisdiction of the United Kingdom. The fact that the drug may be exported from the United Kingdom and the fact that the decision of the Defendant was taken in the United Kingdom do not serve to bring this matter within the jurisdiction of the United Kingdom for the purposes of Article 1. Furthermore, none of the exceptional extensions of the concept of jurisdiction has any application on the facts of this case.

It should be noted that the Soering principle on which the Claimants rely is entirely consistent with the view of jurisdiction under Article 1 as essentially territorial. The Soering principle applies to acts of a State concerning a person while he or she is on its territory or within its effective control. Thus in Bankovic the European Court of Human Rights observed, at paragraph 68:

“68.

Reference has been made in the Court’s case law, as an example of jurisdiction “not restricted to the national territory” of the respondent State…, to situations where the extradition or expulsion of a person by a Contracting State may give rise to an issue under Articles 2 and/or 3 (or, exceptionally, under Articles 5 and/or 6) and hence engage the responsibility of that State under the Convention…

However, the Court notes that liability is incurred in such cases by an action of the respondent State concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a State’s competence or jurisdiction abroad (see also, the above-cited Al-Adsani judgment, at para 39).”

(See also Al-Saadoon v. United Kingdom (2010) 51 EHRR 9 at paragraphs 123-4.)

Accordingly, it is correctly conceded that these Claimants are not entitled to invoke any rights under the European Convention on Human Rights.

Although the Claimants now accept that they cannot rely on the rights conferred by the European Convention of Human Rights, they maintain that they are entitled to invoke the corresponding rights under the Charter of Fundamental Rights of the European Union (“the Charter”).

The Charter sets out a series of rights, freedoms and principles recognised by the European Union. In particular it recognises the following rights:

“Article 2

Right to Life.

2.

Everyone has the right to life.

3.

No one shall be condemned to the death penalty, or executed.

…

Article 4

Prohibition of torture and inhuman or degrading treatment or punishment.

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 2 corresponds to Article 2 ECHR. Article 4 corresponds to Article 3 ECHR.

Article 51 of the Charter deals with the field of its application.

“Article 51

Field of application

“1.

The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaty.

2.

The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.”

Article 52 provides in relevant part:

“Article 52.

Scope and interpretation of rights and principles

…

2.

Rights recognised by this Charter for which provision is made in the Treaty shall be exercised under the conditions and within the limits defined by those Treaties.

3.

In so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

4.

In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.

…”

Article 51 and Article 52 are, to my mind, concerned with distinct matters. Article 51 gives effect to the principle of subsidiarity by making clear that the Charter applies to Member States only when they are implementing Union law. The provisions of Article 52 (2), (3) and (4), by contrast, are intended to ensure that those rights recognised by the Charter which are derived from the Treaties, from the European Convention on Human Rights or from the constitutional traditions common to Member States respectively are and should remain consistent with the bodies of law from which they are derived.

One result of Article 52 (3) is that the Soering principle applies under the Charter in the same way that it applies under the Convention. However, before the Claimants can invoke any of the rights recognised by the Charter they must establish that the decision of the Defendant falls within the field of application of EU law and that the rights recognised by the Charter extend to them. Each of these matters will now be considered in turn.

Field of application.

Article 51 (1) provides that the provisions of the Charter apply to Member States “only when they are implementing Union law”. On behalf of the Defendant it is submitted that the decisions challenged in these proceedings were not taken when implementing EU law.

It is apparent from the EU instruments considered above that the imposition of prohibitions on exports is an area subject to close and detailed regulation by the EU. The power of Member States to act is closely circumscribed by EU rules. This is reflected by the relevant UK legislation. Under the Export Control Act 2002 the power to impose controls on exports may only be exercised on certain specified grounds. One of those is for the purpose of giving effect to any Community provision or other international obligation of the United Kingdom (section 5(2)). Furthermore the power conferred by section 5(4) and paragraph 3(2)D(d) of the Schedule accords with the exception established by Article 10 of Council Regulation (EC) 1061/2009 to the basic prohibition on export controls imposed by Article 1 of the Regulation.

In Case C-260/89 ERT [1991] ECR I-2925 the Court of Justice considered whether Greece, in exercising a power of derogation comparable with that created by Article 10 in the present case, was operating within the scope of Community law so as to require compliance with fundamental rights including Article 10 ECHR. The Court of Justice considered that it had no power to examine the compatibility with ECHR of national rules which do not fall within the scope of Community law. However, where a Member State relied on derogation provisions in order to justify rules which were likely to obstruct the exercise of the freedom to provide services, such justification, provided for by Community law, must be interpreted in the light of the general principles of law and in particular of fundamental rights. Thus the national rules in question could fall within the exceptions only if they were compatible with fundamental rights. (See paragraphs 41-45.) It appears therefore that in exercising such a power of derogation a Member State is operating within the material scope of EU law.

Mr. Chamberlain, on behalf of the Defendant submits, nevertheless, that in the present case the Defendant has decided not to legislate and that it is difficult to see how a Member State, in deciding not to legislate, can be described as “implementing EU law” even if, had it done so, it would have been acting under a power of derogation conferred by the EU Regulation. ERT is distinguishable, he submits, because the decision to derogate in that case was required to be justified.

We are concerned here with the question whether, in taking a decision, the Defendant is acting within the material scope of EU law. The field in question – the imposition of export restrictions – is one occupied by EU law which nevertheless includes a power of derogation to Member States. It would be surprising if the answer to the question whether the Defendant was acting within the material scope of EU law depended on which way his decision went. Nor do I consider that to be the case. Rather, in deciding whether or not to exercise the power of derogation the Defendant is implementing EU law in the sense of applying it or giving effect to it and he is bound to do so in accordance with the fundamental principles and rights which form part of EU law.

For these reasons, I consider that in deciding whether to impose an export ban the Defendant is acting within the material scope of EU law and is “implementing Union law” within the meaning of Article 51 (1).

Jurisdiction

On behalf of the Claimants Ms. Lieven accepts that Article 1 ECHR cannot apply in the circumstances of the present case because the Claimants are not within the jurisdiction of the United Kingdom. However, she submits that reliance on Article 3 ECHR is prevented not by any limit on the obligation found in Article 3 itself but by the limits on the jurisdictional scope of the Convention. Article 4 of the Charter, she submits, is identical in wording to Article 3 ECHR and must, by virtue of Article 52 (3), be interpreted so as to provide protection at least as extensive as that provided by Article 3. Accordingly she argues that it must be construed as including the Soering principle. She then points to the fact that, unlike the Convention, the Charter contains no express jurisdictional limitation akin to that in Article 1 of the Convention. On the contrary, she argues, the scope of application of the Charter is defined by Article 51(1) which indicates that it must be applied by a Member State by respecting these rights when they are implementing EU law. On this basis she submits that “once the territorial limitation of Article 1 ECHR is put aside, as it must be when considering the EU Charter, there is no reason in principle why the proposition that a State must not act as to expose a person to a risk of inhuman or degrading treatment, or torture, should not be equally applicable whether the Claimant is present in the United Kingdom, and facing removal, or is present abroad but faces a risk of exposure to such ill-treatment as a result of a decision by the United Kingdom Government.

I am unable to accept this argument.

For these reasons, I consider that the rights recognised by Articles 2 and 4 of the Charter are co-extensive with the rights in the Convention with which they correspond, not only in terms of their content but also in terms of the scope ratione personae of their application. These provisions of the Charter do not confer any rights on these Claimants.

Finally in this regard, I should draw attention to the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom. This includes the following recital:

“WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;…”

and provides in Article 1(1):

“The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”

The rights recognised in the Union include those conferred by the European Convention on Human Rights. The recital set out above is on its face inconsistent with an extension of those rights of the kind contended for by the Claimants. Similarly, the words of Article 1(1) seem, in their natural meaning, to prevent such an extension. However, while Mr. Chamberlain relies on these provisions in support of his case, he accepts that they cannot be conclusive because there is currently pending a reference by the Court of Appeal to the Court of Justice in R (NS) v. Secretary of State for the Home Department [2010] EWCA Civ. 990 which is likely to determine the true effect of Article 1 of the Protocol. For the same reason, I prefer to found my conclusion on this point on the reasons set out at paragraph 73 above.

In their written submissions the Claimants submitted, by reference to authorities such as R v. Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115 (per Lord Hoffmann at p. 131); R v. Secretary of State for the Home Department ex parte Pierson [1998] AC 539 (per Lord Browne-Wilkinson at p. 575) and A v. Secretary of State for the Home Department (No. 2) [2006] 2 AC 221 (per Lord Bingham at paragraph 27) that the common law protects fundamental rights outside the terms of the Human Rights Act 1998. They submitted that “the importance of the principle of legality and these fundamental principles of human rights [recognised by the common law] is precisely to cover situations, such as the present case, where the Human Rights Act 1998 does not extend but where there is a decision by a justiciable body which is likely to give rise to a breach of such principles”. (Claimants’ Skeleton Argument, paragraph 51.)

The Claimants submitted that the decisions which are challenged in these proceedings put the Claimants’ and many others’ lives at risk and that “the common law must step in to impose the fundamental principle of the right to life, where for purely jurisdictional reasons the Human Rights Act does not protect that fundamental right”. (Claimants’ Skeleton Argument, paragraph 53.) They submitted that the Defendant’s decisions are unlawful because they fail to protect fundamental human rights and as a result are contrary to the principle of legality.

These submissions were modified substantially during oral argument. In particular, Miss Lieven does not now contend that the asserted common law rights are more extensive than corresponding Convention rights. Nor does she contend that the application of these common law principles necessarily renders a refusal to restrict the export of the drug unlawful. Rather she submits that the common law’s recognition of the fundamental human rights in play here is a very significant consideration in the decision making process.

I require no persuading that the common law can act to protect human rights quite independently of the Human Rights Act 1998. However, the extent of such protection and the relationship of the common law to the statutory rights conferred by the Human Rights Act require careful consideration. For example, beyond the established categories of case where a duty of care is imposed, there is no general, common law duty on Her Majesty’s Government to take positive steps to protect an individual’s life from the actions of a third party. Moreover, the common law has shown a reluctance to remedy apparent lacunae in the ECHR regime.

Thus, for example, in In Re McKerr [2004] 1 WLR 807 the House of Lords held that the adjectival obligation under Article 2 ECHR relating to the investigation of death did not apply as a matter of domestic law to deaths occurring before the commencement of the Human Rights Act 1998. An argument that there was an equivalent common law obligation, not circumscribed by the same temporal limitations, was rejected. In particular, Lord Nicholls (at paragraph 32) considered that such a common law right would accord ill with the legislative intent which was not to create an investigative right in respect of deaths occurring before the Act came into force. As Mr. Chamberlain points out, the position here is analogous. The jurisdictional scope of the Human Rights Act 1998 is the same as that of the European Convention on Human Rights (R (Al-Skeini) v. Secretary of State for Defence [2007] 1 AC 153, per Lord Rodger at paragraphs 57-9; per Lord Carswell at paragraph 96). Al-Skeini interpreted the Human Rights Act as imposing a particular jurisdictional limit on the scope of Convention rights, just as McKerr had interpreted the Act as imposing a temporal one. It is not for the common law to circumvent these limits, whether jurisdictional or temporal.

The Claimants also sought originally to rely on the principle of legality as applied in cases such as R. v. Secretary of State for the Home Department, ex parte Pierson [1998] AC 539 and R. v. Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115. In Simms Lord Steyn expressed the principle in the following terms (at p. 131 F-G):

“In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

However, the difficulty with this argument, to my mind, is that the circumstances of the present case do not provide any scope for the operation of a presumption of interpretation operating as a constitutional principle that, in the absence of express language or necessary implication to the contrary, a result which infringes fundamental rights cannot have been intended.

Miss Lieven came to accept in her oral submissions that the essence of her case on the common law in this context was that the importance the common law attaches to fundamental rights means that they have to be given very considerable weight in any decision making process where they are in play. She accepted that that would not mean that a decision refusing to impose a ban on the export of the drug to the United States would necessarily be unlawful. However, the standards which the court would apply to such a decision would be intensified and an increased level of justification would be required.

It is undoubtedly the case that where fundamental human rights are in play the approach adopted by the court on a legal challenge will be modified. Since the level of scrutiny will depend on the gravity of the issues at stake, the required approach will be one of anxious scrutiny. The more substantial the interference with human rights, the more the court will require by way of justification before it can conclude that the decision is rational. In this way, the intensity of review will be increased and the perameters of rational decision may be narrower. (See generally, R v. Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514 per Lord Bridge at p. 531 F-G; R v. Ministry of Defence ex parte Smith [1996] QB 517 per Sir Thomas Bingham MR at p. 554). These are all matters which will arise for consideration in the context of the Claimants’ challenge on grounds of rationality. However, they do not give rise to any free-standing, common law ground for challenging the decisions in issue.

For the reasons set out at paragraphs 31 to 32, argument on this ground has been deferred.