Information on goods controlled under the EU Torture Regulation (including licensing of drugs used in execution by lethal injection).
The main legal basis for controls on ‘torture’ goods is the EU Regulation on Products used for Capital Punishment and Torture. This is also known as Council Regulation (EC) No. 1236/2005 or the ‘Torture’ Regulation.
This regulation is part of EU law and is directly applicable in all EU countries, including the UK.
This guide explains which goods are controlled under the regulation and its secondary legislation, and the effect that it has had on existing trade controls.
Goods controlled under torture legislation include export licensing controls on drugs used in executions by lethal injection. The main basis for these controls is the EU Torture Regulation, however there is also a UK national control on export of the drug propofol to the United States.
Controls on torture goods legislation
The EU Regulation on Products used for Capital Punishment and Torture (the Torture Regulation) concerns trade in equipment and products that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. The regulation came into force on 30 July 2006.
The regulation was subsequently amended by Council Regulation (EU) No 1352/2011 on 20 December 2011 and came into force on 21 December 2011. This amendment includes new measures on drugs used for lethal injection purposes.
Associated secondary legislation
The powers concerning licensing, enforcement and penalties are all covered in the Export Control Order 2008.
To keep informed of latest updates about changes to strategic export control legislation, please subscribe to the Export Control Organisation’s (ECO’s) Notices to Exporters.
Details and guidance on implementation
The UK Strategic Export Control Lists include a list of controlled torture goods (EU Human Rights List). If your products are listed (ie have a ‘rating entry’) in the control lists then you will need to apply for a licence. For more information see the guide on the UK Strategic Export Control Lists - the consolidated list of strategic military and dual-use items.
You are advised to obtain your own legal advice where necessary and to ensure that you are referring to the latest version of the legislation.
Details of the Torture Regulation - content and impact on exporters
The EU Regulation on Products used for Capital Punishment and Torture (the Torture Regulation) was introduced in 2006. The UK had already introduced a national ban on certain equipment used in torture following the then Foreign Secretary’s Parliamentary Statement in 1997. Therefore, many of the items on the EU list of licensable equipment were already subject to export control from the UK.
Implementation of the EU Torture Regulation
The EU Torture Regulation made a number of changes to the UK’s national export control legislation at the time of its implementation in 2005. Exporters were notified of all changes via the relevant Notices to Exporters and via an informal consultation and regulatory impact assessment process.
The main changes made were:
- a revised definition of ‘national exclusions from the relaxation on transhipment controls’
- the removal or reduction in scope of a number of goods - previously controlled at a national level under ML7, PL5001, and PL9001 - to avoid any overlap with those applied by the regulation
- the introduction of a new schedule 1A to apply national controls to exports to EU destinations and transhipment for goods the export of which from the EU is controlled directly by the regulation
- the extension of national trade controls to all goods listed in Annexes II and III to the regulation
- a revised definition of certain goods
Since the regulation was first implemented, the UK’s national export legislation has been consolidated in the form of the Export Control Order 2008. This incorporates and updates all the amendments made as a result of the EU Torture Regulation.
Regulating trade in certain kinds of equipment
The EU Torture Regulation details measures to regulate trade in specific equipment. This includes a ban on the export and import of equipment that could only be used for torture or capital punishment and a ban on related technical assistance. There are also provisions to make licensable the export of equipment which could be used for torture but which also has legitimate applications.
The UK Strategic Export Control Lists include a list of controlled torture goods (the EU Human Rights List). This List comprises annexes 2 and 3 of the 2005 EU Torture Regulation.
If your products are listed (or have a ‘rating entry’) in the control lists then you will need to apply for a licence. For more information, see our guide on UK Strategic Export Control Lists: the consolidated list of strategic and military dual-use items.
Any licences issued against provisions of the regulation are valid throughout the EU for a maximum of 12 months from the date of issue.
Article 7 of the regulation allows member states to adopt or maintain national controls as follows:
- prohibitions on the export and import of leg-irons, gang-chains and portable electric shock devices
- authorisation requirements on the export of handcuffs, which have an overall dimension, including chains, exceeding 240mm when locked, measured from the outer edge of one cuff to the outer edge of the other cuff
The UK considered adopting the national options as follows:
- maintaining a national ban, to all destinations, on the export of leg-irons, gang-chains and portable electric shock devices
- maintaining a national export licensing requirement, to all destinations, for handcuffs which have an overall dimension, measured from the outside edge of one cuff to the outside edge of the other cuff, exceeding 240mm and up to 280mm
UK national legislation
The regulation does not include provisions for licensing, penalties or enforcement. These are implemented within UK national legislation, along with the national options identified above and are now incorporated within Export Control Order 2008.
Goods that are controlled under the Torture Regulation
The regulation controls trade in goods that could be used for torture or capital punishment, together with related technical assistance.
Prohibited torture goods are listed in the EU Human Rights List (comprising annexes II and III of 2005 EU Regulation). This forms part of the UK Strategic Export Control Lists. For more information and to download a copy of the control lists, see our guide on the UK Strategic Control Lists - the consolidated list of strategic military and dual-use items.
Goods that are banned
The list of goods and supply of technical assistance related to the goods which are banned under the regulation for both import into and export from the EU are in annex 2 to the regulation.
Annex 2 goods designed for the execution of human beings are as follows:
- gallows and guillotines
- electric chairs
- airtight vaults designed for the purpose of execution of human beings by the administration of a lethal gas or substance
- automatic drug injection systems designed for the purpose of execution of human beings by the administration of a lethal chemical substance
- electric shock belts designed for restraining human beings by the administration of electric shocks with a no-load voltage exceeding 10,000 volts
The only exception to the ban on the import and export (and any related technical assistance) of the goods described above is when they are used for public display in a museum in view of their historic significance.
Goods assessed on a case-by-case basis
Goods that are subject to a case-by-case assessment for export from the EU are listed in annex 3 to the regulation. These include:
- drugs used in execution by lethal injection
- batons or truncheons made of metal or other material having a shaft with metal spikes (sting sticks)
- restraint chairs and shackle boards - excluding chairs designed for the disabled
- leg-irons, gang-chains, shackles and individual-cuffs or shackle bracelets - excluding handcuffs which have an overall dimension, including chain, measured from the outer edge of one cuff to the outer edge of the other cuff, between 150mm and 280mm when locked and have not been modified to cause physical pain or suffering
- thumb-cuffs and thumb-screws, including serrated thumb-cuffs
- portable electric shock devices, including but not limited to, electric shock batons, electric shock shields, stun guns and electric shock dart guns having no load voltage exceeding 10,000 volts - excluding items listed in annex II and individual electric shock devices when accompanying their user for the user’s own personal protection
- portable devices for the purpose of riot control or self-protection by the administration or dissemination of an incapacitating chemical substance - excluding individual portable devices, even if containing a chemical substance, when accompanying their user for the user’s own personal protection
- riot control incapacitant sprays pelargonic acid vanillylamide (PAVA)(CAS 2444-46-4) and oleoresin capsicum (OC)(CAS 8023-77-6)
- permission for EU countries to adopt or maintain a prohibition on the export and import of leg-irons, gang-chains and portable electric shock devices, and to impose an authorisation on the export of handcuffs where the overall dimension exceeds 240mm when locked
For the purpose of this regulation only, an export authorisation for goods listed in annex III is not required where:
- the goods only pass through the customs territory of the EU, that is those which are not assigned a customs-approved treatment or use, other than the external transit procedure within article 91 of regulation (EEC) No 2913/92 establishing the Community Customs Code, including storage of non-community goods in a free zone of control type 1 or a free warehouse
- the export is to territories of member states which are both listed in annex 4 to the regulation, and are not part of the customs territory of the community, providing that the goods will be used by the authority in charge of law enforcement in both the country or territory of destination and the metropolitan part of the member state to which that territory belongs
- the export is to third countries, providing that the goods will be used by the military or civil personnel of a member state of the EU, if they are taking part in an EU or UN peace-keeping or crisis management operation in the third country concerned, or in an operation based on agreements between member states and the third countries in the field of defence
Controls on drugs used in execution by lethal injection
The European Union has adopted a new EU-wide control on the export of certain drugs usable in execution by lethal injection.
These controls, which came into force on 21 December 2011, were adopted as an amendment to annex 3 of Council Regulation (EC) 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.
As a result of these EU imposed controls, exporters need to seek appropriate permission from national export control authorities to export to any destination outside the EU ‘short and intermediate acting barbiturate anaesthetic agents including, but not limited to’ the following:
- amobarbital (CAS RN 57-43-2)
- amobarbital sodium salt (CAS RN 64-43-7)
- pentobarbital (CAS RN 76-74-4)
- pentobarbital sodium salt (CAS 57-33-0)
- secobarbital (CAS RN 76-73-3)
- secobarbital sodium salt (CAS RN 309-43-3)
- thiopental (CAS RN 76-75-5)
- thiopental sodium salt (CAS RN 71-73-8), also known as thiopentone sodium
The control also applies to products containing one or more of the above. These controls are intended to apply to finished products - in other words, those that are packaged for human or veterinary use. It is not intended that they should apply to raw materials or to intermediate products (ie products that require further processing to make them suitable for human or veterinary use).
The relevant national export licensing authority responsible for administering these controls in the UK is the Export Control Organisation (ECO), part of BIS. The ECO is responsible for licensing items that are judged to be of a ‘strategic’ nature including goods used in torture applications.
Why these controls have been put in place and background about UK national controls on drugs used for lethal injection
The UK opposes the death penalty in all circumstances as a matter of principle and has led the way in introducing controls in this area. The UK originally imposed a national control on the export to the USA of sodium thiopental in November 2010. These controls were subsequently extended in 2011 to include controls on a further 3 drugs potentially used in execution by lethal injection - namely: potassium chloride, pancuronium bromide and sodium pentobarbital. At the same time, the UK has also been actively urging the EU Commission to implement an EU-wide control on the export of drugs used for lethal injection.
The EU-wide measures have been introduced collectively in order to ensure that controls imposed by individual EU member states can’t be circumvented by the movement of drugs across the EU. These measures will also help UK exporters competing against others.
The EU regulation supersedes the original UK measures taken to introduce national controls on drugs used for lethal injection in the United States, insofar as they apply to sodium thiopental and pentobarbital. The national controls on export to the USA of pancuronium bromide and potassium chloride remain in force.
Export controls in relation to other regulatory controls
As an exporter you should be aware that the export controls imposed by Council Regulation (EU) No 1352/2011 are in addition to any existing regulatory controls applying to the supply or export of these drugs, including under the Misuse of Drugs Act 1971 (as administered by the Home Office).
It is an exporter’s responsibility to ensure that all regulatory requirements are complied with and to apply for licences from all individual relevant regulatory authorities as necessary.
UK national export licensing control on propofol
On 10 August 2012, a new UK national control was introduced on the export of the drug propofol to the United States. This control was introduced as part of a range of amendments to the UK’s main export control legislation - the Export Control Order 2008. The amendments appear in the Export Control (Amendment) (No 2) Order 2012 (SI 2012/1910).
Paragraph 3 of the 2012 order added propofol to the list of human and veterinary medicinal products that are prohibited for export to the USA where it is in a form suitable for injection or for preparation of an injection.
As of 10 August 2012, any person seeking to export propofol from the UK to the US requires an export licence issued by the ECO. The ECO will refuse a licence if the stated end use is execution or if it considers that there is an unacceptable risk that the drug will be diverted for use in execution. The control covers both direct and indirect export of products from the UK to the US. The indirect control applies when the initial destination is not the US but the exporter knows that the goods will be re-exported and that the ultimate destination is indeed the US.
Applying for an export licence for drugs used for execution purposes
Applying for an export licence
To comply, UK exporters impacted by the European wide controls on drugs used in execution by lethal injection need to take the following steps:
- check whether the drugs you propose to export are specified in annex III of Council Regulation No 1236/2011..
- if the items are specified you will need to apply for an appropriate licence from the ECO in addition to any other separate licensing requirements administered by either the UK’s Home Office, the Medicines and Healthcare Regulatory Agency (MHRA) or the Veterinary Medicines Directorate (VMD).
The UK government recognises that these drugs are essential medicines which might also be used for legitimate end-use purposes, eg for use in anaesthesia or animal euthanasia. In this context, is important that these controls do not place unnecessary burdens on legitimate trade.
The ECO have put in place special licensing arrangements via a paper-based application system which is explained further below.
Applying for an Open Individual Export Licence
For exports to all destinations other than the 11 specified below an Open Individual Export Licence (OIEL) is available. An OIEL is a concessionary licence type. The OIEL, if granted, would permit the export of unlimited quantities of the drugs specified in paragraph 4.1 of annex 3 of the Torture Regulation any consignee for a period of 2 years.
Applications should be made in writing (signed by a director or company secretary) on your company or organisation’s official headed notepaper to:
Head of Special Casework Licensing Unit
Export Control Organisation
1 Victoria Street
The application must include the following:
- name and full address of UK exporter
- Companies House registration number
- full contact details, including job title of person submitting the application
- the address where records relating to exports made under this licence will be kept if different from above
- a description of the items to be exported
- a description of the types of customers with whom you will be dealing
- a statement confirming whether or not the chemicals to be exported are subject to control under the Misuse of Drugs Act; if they are, the application must include a further statement confirming that they will not be exported without the prior approval of the Home Office Drugs Licensing Unit:
I certify that the goods which are subject of this export licence application are:
a. not intended for re-export or re-transfer to a destination not listed in the Schedule to this licence; and
b. are not intended for use in the carrying out of execution by lethal injection and will not be re-exported or otherwise sold or transferred if it is known or suspected they are or are likely to be used for such purposes
- all applications must also be signed and dated by a Director or Company Secretary
You must comply with all the terms and conditions of the licence including the requirement to obtain from each consignee, prior to first export, a written statement or undertaking which states the intended end-use of the goods and confirms that they will not be used for execution by lethal injection and will not be re-sold or re-exported if it is known that they will be so used.
You must also keep detailed records of all exports made under the licence. The records may be kept in any form but must contain sufficient detail to allow the following information to be identified for each export:
- a description of the goods
- the date of the export
- the quantity and value of goods exported
- the name and address of the consignee
If you are granted use of an OIEL, you will be subject to compliance audits conducted by the ECO Compliance Unit. For more details read our guide on compliance and enforcement of export controls.
Applying for a Standard Individual Export Licence
If you intend to export to any of the 11 destinations that are known to carry out executions by lethal injection then you will need to apply for a Standard Individual Export Licence (SIEL). You also need to take this action when the export is to a destination not listed below but you know that the ultimate destination is one of those listed.
The 11 destinations are:
- American Samoa
- People’s Republic of China
- Northern Mariana Islands
- United States Minor Outlying Islands
- United States of America
- Virgin Islands, United States
You need to apply for a Standard Individual Export Licence via SPIRE.
The completed application form should be supported by an end-user undertaking (EUU), which should be from the end-user (signed by a director or company secretary) on their headed notepaper stating:
- from whom the goods have been ordered (ie UK exporter)
- to where and whom the goods are to be consigned
- description and quantity of goods ordered
- for what end-use the goods are intended and by whom
- that the goods are not intended for re-export or re-transfer from the end-use destination
- that the goods are not intended for use in carrying out of execution by lethal injection and will not be re-exported or otherwise sold or transferred if it is known or suspected they are or are likely to be used for such purposes.
All applications for a SIEL will be assessed on a case-by-case basis. A licence will not be issued where we assess there is a risk that the drugs may be used in executions by lethal injection.
Licences available for goods controlled by the EU Torture Regulation
You will need an export licence if your products are listed in the EU Human Rights List (which forms part of the UK Strategic Export Control Lists).
The type of licence required depends on the destination and the nature of the export. Exporters can apply for either a SIEL, an OIEL or register for an Open General Export Licence (OGEL). The majority of licence applications for torture goods are made via SPIRE.
If, however, you are exporting drugs which are specified by Council Regulation (EU) No 1352/2011 then special paper-based licensing arrangements are in place.
Export and import licences
If you need further help in deciding if your goods need an export licence, have a look at Do I need an export licence?.
The 2006 regulations are required to provide licensing, enforcement and penalty provisions in respect of import of technical assistance related to goods listed in annex 2 to the regulation.
For more information email the BIS Import Licensing Branch helpline: firstname.lastname@example.org.
EU Torture Regulation Q&As - scope of goods used
Here are some frequently asked questions about the scope of the European Union (EU) Regulation on Products used for Capital Punishment and Torture (the Torture Regulation).
1) Does the regulation weaken national export control restrictions?
The scope of the controls in the regulation is generally greater than the former UK controls. For instance, there are now controls on gallows and guillotines, electric chairs, air-tight vaults, thumb cuffs and thumb screws. The regulation raises the level of export control across Europe as many member states previously had no controls in this area.
2) Why was it necessary to remove national controls once the regulation entered into force?
Competence on the export of goods listed in the Regulation now rests with the EU. As the Regulation is directly applicable in all EU member states, overlapping national legislation was revoked. This does not reduce the level of control, but simply ensures that EU and national legislation mesh together properly.
3) Why can’t we simply add extra torture equipment to our national legislation where this is identified as not covered by the regulation?
The regulation is now the prime source of European controls on the export of goods used for capital punishment or torture. To be most effective, agreement to control the export of such goods should be sought from all the EU member states.
4) The list of controlled goods is very limited, there must be many items which can be used for capital punishment or torture and are not listed. Will member states be able to introduce a wider range of military, security and police equipment into the EU trade regulation?
The list of goods in the regulation was proposed by the European Commission and negotiated with the member states in the council. The preamble (23) in the regulation indicates that the list of goods in the regulation should be kept under review and articles 12 and 15 set out the procedures for making changes.
The UK works with other EU member states to introduce additional equipment for control under the regulation where appropriate and necessary.
5) Will the national control on electric shock dart guns be maintained?
Yes. The government will maintain its controls on exports on electric shock dart guns to all destinations.
6) By deleting PL5001.g from national controls and relying instead on the more restricted definition contained in the EU trade regulation, will some electro-shock devices cease to be controlled? Eg, electro-shock devices which operate at a voltage level below 10,000 volts?
The reference to no-load voltage exceeding 10,000 volts relates to electric shock dart guns. All electric shock dart guns, whether with a no-load voltage, above or below 10,000 volts, will continue to be controlled in the UK.
7) Will export controls on ‘ordinary handcuffs’ be added to the EU trade regulation?
The regulation is now the prime source of control for handcuffs with the exception of the derogation for handcuffs between 240 and 280 millimetres. It is now for the EU to decide on any changes to the regulation.
8) Will UK national controls on individual cuffs, controlled under PL5001c.5, be maintained; and will the UK encourage the European Commission and EU member states to include this equipment description in annex III of the trade regulation?
The control in the regulation applies to individual cuffs irrespective of size and therefore goes further than PL5001.c 5 control, which is limited by the internal dimensions of the cuffs. Therefore it is unnecessary to maintain the national control.
9) Does the UK government consider that having leg-irons or leg-cuffs in annex III in the EU trade regulation contradicts UK support for article 33 of the United Nations Standard Minimum Rules for the Treatment of Prisoners in relation to the use, and export, of leg-irons or leg-cuffs?
This point was considered during the negotiation of the regulation. Article 7(1) of the Regulation allows member states to maintain national prohibition on these goods. The UK will be maintaining a national prohibition.
EU Torture Regulation Q&As - trade controls and other licensing situations
Here are some frequently asked questions about trade controls and other aspects of licensing under the EU Regulation on Products used for Capital Punishment and Torture (the Torture Regulation).
1) With the regulation now in force, are the existing controls on trafficking and brokering (trade) of ‘torture equipment’ maintained?
Yes. The regulation does not control trade, but the provisions on trade controls in the Export Control Order 2008 are applied to the goods controlled by the regulation, as well as maintaining all existing national trade controls. Therefore, a trade licence will be required before trafficking and brokering can be carried out.
2) Will the UK be working to introduce effective brokering controls across the EU?
The UK supports brokering controls, and continues to apply national trade controls to equipment in the regulation and encourage other EU member states to do the same.
3) Will the UK government use the options in the regulation to ensure that the strict export controls introduced in July 1997 and brokering controls implemented in April 2004 are retained?
Yes. The regulation allows member states to impose stricter controls on the goods which are specified in articles 7(1) and (2). Article 7(1) allows member states to maintain a prohibition on the export of leg-irons, gang chains and portable electric shock devices. Article 7(2) allows member states to impose an authorisation requirement on the export of handcuffs exceeding 240 millimetres when locked. The UK will apply these provisions.
The regulation does not control brokering but the UK will continue to apply trade controls as explained above.
Other licensing situations
1) What about controls on intra-EU transfers?
Now there is a harmonised regime on exports from the EU, there is no need in principle for controls on transfers to other member states. However, they are maintained in certain cases where the UK has tougher controls than the regulation or to maintain previous national controls.
2) Why does the EU regulation only apply to non-EU member states?
As with all EU export regulations, the torture regulation only deals with external trade to and from the EU.
3) What about transhipment controls?
The regulation controls the transhipment in and out of the EU of goods listed in annex II of the regulation. For goods in annex III where transhipment controls currently exist in the UK, these will be maintained where this is possible.
4) The lack of transit controls may be in breach of EU member states’ obligations under the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment?
Transit controls apply in respect of goods in annex II. For goods listed in article 7(1) national transhipment controls can be maintained. The UK will continue to maintain transit controls on article 7(1) goods, ie leg-irons, gang-chains and portable electric shock devices.
5) Does the EU trade regulation control technical assistance whereby person(s) supply such assistance once they have travelled outside the EU territory?
Technical assistance controls apply (see article 3 and 4 of the Regulation) to those annex II goods prohibited for import and export.
6) If an exporter needs further information on the application of the Regulation, where can he or she find this?
You can call the BIS ECO Helpline on 020 7215 4594 or email: email@example.com
BIS Import Licensing Branch Helpline
Home Office Drugs Licensing and Compliance Unit
020 7035 6330 (commercial applicants) or 020 7035 6300 (personal applicants)