Steve Peers

British readers of this blog are likely aware of the case of missing teenager Alice Gross. A Latvian man, Arnis Zalkalns, is a person of interest in her disappearance. What makes this case more complex is that Mr. Zalkalns had a prior murder conviction in Latvia before relocating to the UK. He has since vanished, possibly returning to Latvia.

This raises several questions: how was a convicted murderer able to enter the UK undetected? What can be done to apprehend Mr. Zalkalns? Are there broader lessons to be learned regarding EU policies and their application in such situations?

Free Movement Rules

First and foremost, how did a convicted murderer freely enter the UK? While he had served his sentence (which was alarmingly short) under Latvian law and wasn’t a fugitive, this doesn’t automatically grant him the right to reside in the UK or any other Member State. Despite claims from UKIP leader Nigel Farage that individuals like Mr. Zalkalns can’t be prevented from entering the country, this is inaccurate.

The foundation of movement within the EU is the Citizenship Directive, which outlines the free movement rights of EU citizens between Member States. However, this freedom is not absolute. The Directive explicitly states that entry, exit, and residency can be denied based on “public policy, public security or public health.” While a criminal conviction doesn’t automatically justify barring free movement, there’s a proportionality assessment conducted on a case-by-case basis.

Given the severity of murder and the recency of Mr. Zalkalns’ conviction, there’s a strong argument for denying his entry. It is improbable that any British court, or even the Court of Justice of the European Union (CJEU), would have overturned such a decision.

The reason for this oversight is likely due to the UK authorities being unaware of his murder conviction. Although EU laws mandate the sharing of criminal records, these laws were enacted in 2012, after Mr. Zalkalns had already entered the UK. Additionally, these laws only require Latvia to disclose convictions of British citizens within their country.

Deputy Prime Minister Nick Clegg has suggested that improving the exchange of criminal records information within the EU would be a straightforward solution. However, history demonstrates that establishing and maintaining criminal and immigration databases, both within the UK and the EU, is a complex and costly endeavor. A more attainable goal might be to prioritize the sharing of information on a limited number of severe convictions, such as murder and rape, specifically for individuals not currently imprisoned, as those incarcerated cannot exercise free movement rights.

It’s unclear whether Mr. Zalkalns was on parole under the Latvian system. If he was, leaving the country would likely constitute a parole violation, and Latvia should have issued a European Arrest Warrant for his apprehension. Additionally, an EU law exists for transferring probation and parole decisions between Member States. While primarily designed for situations such as a British citizen convicted in Latvia wanting to serve their sentence in the UK, the EU could expand this law to encompass cases like Mr. Zalkalns'.

However, even with this change, a problem persists: the UK’s reluctance to implement this law. Despite a 2011 deadline, the UK has not adopted this law (unlike Latvia) and intends to opt out of these obligations by December 1st of this year. This raises concerns about public safety being compromised by the UK’s decision to withdraw from certain EU criminal law legislation, and this case serves as a stark example of potential consequences.

Another notable detail is Mr. Zalkalns’ 2009 arrest in the UK for indecent assault on a teenage girl. This presented an opportunity for UK police to utilize EU mutual assistance protocols to request information about Mr. Zalkalns from Latvian authorities. Such an inquiry, justifiable as part of their investigation, could have uncovered his criminal history, potentially leading to his expulsion from the UK.

Does this case then support Nigel Farage’s suggestion that the UK should leave the EU to prevent criminals from entering? It’s crucial to remember that only a small fraction of EU citizens are criminals. UKIP’s own proposals advocate for admitting 50,000 foreign workers into the UK annually, in addition to tourists, students, and family members. Moreover, their asylum policies could backfire, potentially increasing the number of asylum seekers in the UK. Furthermore, leaving the EU would mean abandoning existing mechanisms for managing cross-border crime, like those used in the Jeremy Forrest case, which also involved a teenage girl.

European Arrest Warrant

Assuming Mr. Zalkalns is currently in Latvia, can the UK secure his return via a European Arrest Warrant (EAW)? UK authorities have been hesitant, citing that an EAW requires prosecution certainty. The UK Extradition Act permits issuing an EAW to another Member State to request the apprehension and return of an individual if “there are reasonable grounds for believing that the person has committed an offence” warranting extradition. Additionally, a UK arrest warrant must already be in place for that individual. Based on publicly available information, it appears that the police could establish reasonable grounds to suspect Mr. Zalkalns of an offense, making an EAW attempt worthwhile.

However, the EU legislation on the European Arrest Warrant uses different wording, stating that an EAW is solely for “conducting a criminal prosecution.” It could be argued that apprehending a potential suspect falls under “conducting” a prosecution, even if formal charges aren’t immediately filed, as further investigation could reveal exonerating evidence. It is also important to note that other language versions of the EU law, equally valid to the English version, might allow for more flexibility, considering the varying criminal justice systems of Member States.

Alternatively, UK authorities could submit a “mutual assistance” request to Latvia to have Mr. Zalkalns brought in for questioning. This is justifiable even without immediate charges, as he may possess information relevant to the investigation. In the future, the European Investigation Order will expedite such inquiries.

In conclusion, this case presents learning opportunities for both the EU and the UK. The EU could enhance existing rules by implementing a system for exchanging information about serious criminal convictions and strengthen existing frameworks. On the other hand, UK authorities missed several opportunities to apprehend Mr. Zalkalns, investigate his criminal background, or question him for potential evidence. Additionally, the UK’s decision to opt out of EU regulations regarding probation and parole transfer warrants reconsideration.

Barnard & Peers: chapter 13, chapter 25