Abstract
I first met our late friend and colleague, Scott, at a conference of the European Criminal Bar Association. As I stood in a large reception hall surrounded by colleagues from across Europe, quaffing wine and listening to the polyglot hum of conversation, I had imagined myself to be the only Scots lawyer in the room. My surprise at hearing another clearly Scots accent speaking in English was deepened into astonishment when I realised that the same voice was flitting effortlessly across conversations in at least three different languages. I immediately went over to introduce myself and was warmly welcomed by Scott, not so much as a fellow compatriot but rather as a fellow European lawyer.
As I came to know Scott and was invited to get involved in this journal, I came to see him more and more as a renaissance man and in particular as the latest example of a line of Scottish thinkers and professionals who have long seen the future that lies in the mainland of Europe with its many complexities but even more opportunities. For me, he epitomised what I believe to be a trait that is not exclusively Scottish but is well respected in the land of our birth. In Scotland, that trait is expressed in the saying that, ‘We are a’ Jock Tamson’s bairns’.
It is the belief that we are all bound by our common humanity. The belief that we should refuse to uphold the creed of ‘the other’ because the essential truth is that we are all the same. We all share our Human Rights, but more than that, we all share a Human Obligation to actively do right by our fellow ‘bairns’.
As lawyers, we know all too well that respect for Human Rights is in alarmingly short supply in the World today. As individuals, we know even better that the ethic of actively doing right by other individuals is a much rarer commodity than that. Scott Crosby was the living embodiment of both those qualities in a lawyer. Scott was committed to the idea that the European Union (EU) should be there to make people’s lives better. In particular, it should provide as far as possible a way of improving upon the domestic legal protection available to its citizens, where that fell substantially short of what a modern and democratic polity should provide.
So, in the best traditions of an esteemed legal publication such as this, I have set out the statement of purpose of this article. Now I must produce the sources upon which I rely.
The first reference relates to the journal which was the precursor to this one, The Journal of European Criminal Law (JECL). Scott was very much involved with that publication and indeed thought its role so significant that when it ceased operations, he conceived the New Journal of European Criminal Law.
At Scott’s request, I wrote an article for the first volume of the JECL in 2007 entitled, ‘“Berlusconi” v. “Pupino”: Conflict or Compatibility?’
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Both cases related to Italian citizens (one being that country’s former Prime Minister and the other a nursery teacher there). Both related to preliminary questions arising from criminal proceedings and to attempts by the Italian national authorities to facilitate the prosecutions of the individuals concerned by application of Community law. Both were the subject of decisions of the Grand Chamber of the European Court of Justice (ECJ).
By contrast, one alleged false accounting on a scale so massive that it could, in the view of the Tribunale di Milano, have affected the collective interest in the ‘transparency’ of the corporate market possibly in a way that assumed a ‘Community dimension’. The other case referred to allegations of offences of ‘misuse of disciplinary measures’, whose most serious manifestation was a slight swelling to the forehead of one pupil. Most strikingly, in the former case, the ECJ decided that Community law per se could not be invoked to facilitate the prosecution of Mr Berlusconi, 2 whereas it could in the latter case of Ms Pupino. 3
As someone with close family links to Italy and a passion for the EU as a power for good, Scott was incensed by what he saw as the injustice of the situation and the failure of the ECJ, and by extension the EU, to deliver on what should be its obligation to improve matters. Instead, it appeared to ‘set them in stone’ in all their inadequacy and unfairness. This had to be called out and Scott was determined that it should be. To my pleasant surprise, Scott asked me to write the ‘indictment’ or rather the article for that purpose. It was at this point that things took a radically different turn.
Once I began to analyse the Court’s judgments, I could see that they were each unimpeachable on the merits of the respective cases. More than that, the combined effect of the two decisions was a consistent jurisprudence that trended towards empowering rather than restricting domestic courts.
Whereas I had been pleasantly surprised to be asked to write the article, Scott’s surprise at receiving it was less profoundly so. Scott had thought to receive a deconstruction of the judgments as failures, yet I had found them to be the complete opposite. On my analysis, they succeeded both on their individual facts and in developing a progressive and empowering jurisprudence. Nevertheless, this was another occasion when Scott demonstrated his commitment to ethics and professionalism. He had asked me to write the piece. It was not what he had been looking for, but he respected the strength of the analysis and published it as scheduled. We were both vindicated in writing and publishing the piece as it became part of the list of texts in Eur-lex explaining the decision in the Berlusconi case.
My second reference relates to a situation which did not involve the explanation of the law but rather the making and extending of it.
In 2009, I was involved in an extradition case relating to a client who, along with another, was charged with ‘importing’ certain proscribed chemicals into the United States. Neither the client nor the co-accused had done anything actually inside the United States, but their companies had exported to the United States from an EU Member State and in particular from the jurisdiction of Scotland. The client and the other accused were both challenging their extradition to the United States.
Briefly, the available grounds of challenge fell into two categories. One was incompatibility with the ECHR. 4 This was already a well-worn path, which seldom succeeded before the Courts, at least in respect of extradition to the United States. However, there was another way of looking at the problem, namely that such extradition was not compatible with Community law, or otherwise stated EU law that was binding upon the Court.
Counsel for the other party eschewed this approach because as he rightly said at that time it was a ‘third pillar’ issue. Insofar as one might seek to apply Community law on the framework of the ECHR that was correct. However, what if it was pled as a ‘first pillar’ issue? It was this course that I chose to take. In brief, here are the salient points of the submission that was made both orally and in writing to the Court, videlicet:
i. The requested extradition of the Minuter is based upon the premise of the Minuter’s involvement in
ii. By the application of the provisions of the Extradition Act 2003 to this case, the United Kingdom purports to incorporate into its law and that of the wider European Union, provisions of US domestic law that purport to place obligations, restrictions and criminal liability on persons and companies exporting from the EU, whether originating from or passing through the United Kingdom. These provisions purport to be of effect both prospectively and retrospectively. In respect of the United Kingdom they are arbitrarily applied as the enactment, existence or repeal of these provisions is entirely a matter of US and not UK or EU law.
iii. Article 29 of The Consolidated Version of the Treaty Establishing the European Community provides:
‘Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States’.
iv. Article 30 provides that Article 29:
‘shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States’.
v. Regulation (EEC) No 2603/69 of the Council of 20 December 1969 establishing common rules for exports provides by Article 1: ‘The exportation of products from the European Economic 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’.
vi. Said Regulation also provides that no member state can invoke such restrictions without consultation with the other member states through the committee having the responsibility for the oversight of such measures.
vii. The purported order by the Justice Secretary for the extradition of the Minuter in respect of the Minuter’s involvement in the lawful export of materials from the United Kingdom to the United States is a quantitative restriction on the exportation of products from the European Union to a third country and the pursuit of the court proceedings in furtherance thereof is a measure having equivalent effect.
viii. The question arising under Article 234 of the EEC Treaty is whether said Treaty and the Regulation No 2603 thereunder are to be interpreted such as to allow the United Kingdom to unilaterally decide to collaborate with the United States to introduce quantitative restrictions on exports from the United Kingdom and thereby the European Union, by virtue of an agreement between the United Kingdom and the United States in respect of Extradition.
ix. The issue arising is whether the EEC Treaty is to be interpreted as being a superior or inferior source of obligation upon the United Kingdom as compared with the United Kingdom’s Extradition Treaty with the United States in respect of companies exporting goods from the European Union.
Of course, the sands of time, treaty changes and Brexit have changed the situation somewhat today, but at that time the matter for the Court should have been relatively simple. It was obliged to make a reference on the matter to the ECJ. The only problem was that it did not. It heard the words of the submission; it received the written ‘Minute’ containing the words and then it ignored them. It was as if that part of the case had never happened. In fairness, I had had previous experience in our system of oral pleading of key but ‘difficult’ points not being addressed by the Court in its later written judgment. It was for that very reason that these submissions were also made in writing, ‘lest we forget’. Nevertheless, the Court ‘forgot’.
Immediately we were able to seek permission to appeal the matter to the Judicial Committee of the Privy Council (JCPC), which is the forebear to today’s UK Supreme Court as far as Scotland is concerned, we did. It was refused. What was more surprising was that when the JCPC was petitioned for special leave to appeal the matter that too was met with a negative response.
As lawyers have doubtlessly found in many countries through many ages, the provisions of the law are worthless if they are ignored in its application. The particular difficulty here was that there was no means whereby an EU citizen, such as the client in this case, could seize the European Court of a matter if the domestic courts simply did not follow the obligation to make the referral that the law required.
There was only one thing left for me to do.
Contact Scott Crosby.
On being made aware of the situation in this case, Scott too saw the importance and the injustice of the situation. More importantly, he saw a way in which we could try to get past this juridical ‘black hole’. As we understood all too well, there was no way in which an individual could seize the European Court of a case where the domestic courts did not make a reference. The only other entity that could refer a matter, other than the courts, was the European Commission itself. There was no established route whereby an individual could seek to engage the Commission in the process. Scott’s solution to the problem was bold and direct, ‘If no established route exists, then make one’.
None of us in Scotland could even attempt do such a thing, but Scott Crosby could. Equipped with the details of the case and its history, Scott sought and obtained a couple of meetings with officials in Brussels. The response was favourable. As Scott himself put it, the view of the officials he had met with in the Commission was that, ‘this thing has got legs’.
Scott explained that the way forward was to write a letter to the Commission on the matter. Of course, it was a letter that the Commission officials would be waiting for. Thereafter, the Commission would seek an explanation from the domestic courts as to the circumstances of the case. If the Commission found the explanation to be unsatisfactory, it would proceed to make a reference of the case to the European Court itself.
In a matter of days, Scott had not only managed to bring to the attention of the Commission’s officials the nature of the problem but he had also persuaded them to produce a new mechanism to address a fundamental weakness in the system, whereby appropriate cases could be referred to the European Court.
It was a mark of Scott’s conviction that the EU and its various organs should work for the benefit of its citizens, that he put such a concentrated effort into achieving this. Without his professional skill and engagement with the Commission, it is hard to envisage that this could have been done otherwise.
At this point in my account I would like to tell you about the letter that was sent to the Commission and what then happened as a consequence of it. I would like to tell you but I cannot because at this point the stratagem of turning this case into a first pillar Community law issue succumbed to what is frequently the greatest source of weakness in any case: the action of the client.
For professional reasons, I and the rest of the legal team involved at that time were obliged to withdraw from acting for the client before we could proceed with the letter to the Commission. The result was that different lawyers were engaged. They pursued the well-worn ECHR path and the client ended up in the United States. Of course, it is entirely possible that had the ‘first pillar’ approach been adopted that the outcome would have been the same. We shall never know. Personally, I doubt it.
I started this article with a statement of Scott’s qualities. I have set out the factual basis upon which that statement is made. It now only remains for the reader, as arbiter of the submissions made, to determine whether the case for Scott Crosby as Scotus Europae is made.
To sum up, Scott Crosby lived his professional life in accordance with a belief in the importance of people and the potential of the EU to make their lives better that was passionately held. His legacy is to be found in the lasting effects of what he gave us during his life, including this very journal. It is also apparent from what his passing has taken from us. It is no longer apparent to me whom I should turn to for help in matters such as the case described above. It might be said that with Brexit that will not matter. Scott’s homeland has been dragged from the EU, however unwillingly. Be that as it may, I am convinced that Scott’s life and example will prove to be a contribution to making better the lives of the EU’s remaining citizens. I am equally sure that Scott, if he were still here, would join with me in this last wish as a testament to a future that he could see was within our grasp should we choose to take it. That wish is simple and heartfelt. It is that Scott Crosby will not be the last Scotus Europae.