Edmund Zagorski and Ralph Baze are on death row in the US. Both are due to be executed according to protocols which require the use of sodium thiopental to anaesthetise them prior to execution by lethal injection. For several months there has been a shortage of sodium thiopental in the US and several US states have been trying to source the drug elsewhere. The Claimants asked the Secretary of State for Business, Innovation and Skills to impose export controls on sodium thiopental under the Export Control Act 2002. They relied on the EU Charter of Fundamental Rights and, alternatively, an equivalent common law right; they also alleged that the decision not to impose export controls was irrational.
Mr Justice Lloyd Jones indicated on 22 November that he would dismiss the Claimants' arguments under the EU Charter and the common law and refused interim relief. Today, he gave a detailed judgment holding that the rights in the EU Charter derived from the ECHR do not extend to those outside the jurisdictional scope of Article 1 ECHR and that it would be illegitimate to recognise a common law right with any wider personal scope. Argument on the rationality challenge was due to be heard today.
However, over the weekend, the Secretary of State considered new evidence gathered by the parties during the course of last week as to the extent of legitimate medicinal trade in sodium thiopental with the US. He noted, on the basis of that evidence, that it is not currently lawful to import sodium thiopental into the United States for medical purposes. That meant that an order controlling the export of sodium thiopental should not have any adverse impact on patients in the US or on UK exporters. In the light of that, he decided that, although not required to do so, he would now make an order controlling the export of sodium thiopental to the US. He also instructed his officials to explore with the EU Commission and Parliament, and with other Member States, the possibility of introducing controls on an EU-wide basis.
The judgment is here.
Martin Chamberlain and Victoria Wakefield appeared for the Secretary of State. Kelyn Bacon appeared for Archimedes Pharma UK Ltd, the UK marketing authorisation holder for Thiopental.