Saturday 27 September 2014

Free movement of murderers? EU law aspects of the Alice Gross case

Steve Peers

As British readers of this blog will know, a potential suspect in the disappearance of teenager Alice Gross from her London home is a Latvian man, Arnis Zalkalns, who had a previous conviction for murder in Latvia before moving to the UK. He is now missing and could potentially be in Latvia.

This raises obvious questions: how could a convicted murderer move to the UK, without being stopped or detected? And what could now be done to get hold of Mr. Zalkalns? More broadly, are there any lessons here about measures which the EU could adopt in the future, and/or about how the EU laws currently in force could be applied?

Free movement rules

First of all, how could a convicted murderer move to the UK? He had served his (absurdly short) sentence under Latvian law, so was not a fugitive from justice. But that doesn’t mean that he had the right to move to the UK, or any other Member State. Although UKIP leader Nigel Farage has claimed that ‘We can’t stop people like this entering the country’, this is simply not the case.

The starting point here is the EU’s citizenship Directive, which governs the free movement of EU citizens between Member States. Free movement is not unlimited. Among other things, the Directive provides that free movement can be denied on grounds of ‘public policy, public security or public health’. This applies to entry, exit and stay in a country. The law states that a criminal conviction cannot automatically justify blocking free movement rights, but there is a proportionality test to be applied on a case-by-case basis.

Given that murder is the most serious crime, and that Mr. Zalkalns’ conviction was quite recent, there is obviously an extremely strong case that he could have been refused entry. If he challenged the refusal, it’s hard to imagine that any British court, or the Court of Justice of the European Union (CJEU), would have been sympathetic.

So why wasn’t he refused entry? Presumably because the UK authorities weren’t aware of his murder conviction. There are EU laws on the sharing of criminal records, but they applied only from 2012, some time after he entered the country. In any case, they wouldn’t have helped, since they only oblige the Latvian authorities to inform the UK about any convictions of British citizens in that country.

The deputy Prime Minister, Nick Clegg, has claimed that the limited exchange of criminal records information between EU countries could ‘easily be fixed’.  In fact, the history of building criminal or immigration databases or information exchange systems, either within the UK or the EU as a whole, shows that they are difficult and expensive to establish and operate. But it might be possible to focus on sharing information on a very limited number of the most serious criminal convictions, such as murder and rape, and only as regards persons who were not imprisoned. (People still in jail can obviously not exercise free movement rights).   

It’s not clear if Mr. Zalkalns was on parole from the Latvian system. If so, he presumably breached his parole by leaving the country, and the Latvians should have issued a European Arrest Warrant to get hold of him. Moreover, there’s an EU law in place for transferring probation and parole decisions between Member States. It’s mainly aimed at cases where (for instance) a British tourist has been convicted in Latvia, and wants to return to the UK to serve his or her probation or parole period. The EU could think about revising this law to fully cover cases like Mr. Zalkalns too.

But even if the EU did that, there’s a problem. The UK simply doesn’t want to apply this law: it has failed to do so by the deadline of 2011 (Latvia has applied it), and is going to opt out of its obligations as of December 1st this year. I have warned before that the UK government’s intention to opt out of some EU criminal law legislation might put public safety at risk. This case is a preview of the sorts of problems that might arise.

There’s another aspect to this case worth mentioning. Mr. Zalkalns was arrested in 2009 in the UK, for indecent assault on another teenage girl. This could have been an opportunity for the UK police to send an inquiry to the Latvian authorities (under the EU’s rules on mutual assistance in criminal matters) for any further information about Mr. Zalkalns, on the grounds that it might have helped their investigation into that case. That would have uncovered his criminal record, which would then have been grounds for expulsion from the country.

Is the lesson from this case that (as Nigel Farage suggests) the UK should leave the EU, to ensure that criminals don’t enter the country? Of course, only a small minority of EU citizens are criminals. UKIP’s own plans call for the admission of 50,000 foreign workers  a year into the UK. Presumably they would also allow in at least a few tourists, students and family members.  And as I pointed out yesterday, their plans regarding asylum would backfire, leading to more asylum-seekers in the UK, not fewer. Furthermore, leaving the EU would mean leaving all the rules currently in place to deal with cross-border criminality, which were applied for instance in the Jeremy Forrest case involving another teenage girl.

European Arrest Warrant

If Mr. Zalkalns is now in Latvia, could the UK authorities issue a European arrest warrant (EAW) to get hold of him? They have been reluctant to do so, on the grounds that an EAW can only be issued where prosecution is certain. According to the UK's Extradition Act, the authorities in the UK can send a European Arrest Warrant (EAW) to another Member State, to ask them to arrest a person and send him back to the UK, as long as 'there are reasonable grounds for believing that the person has committed an offence' which is serious enough to ask for extradition. Also, the police must also have issued an arrest warrant for the same person in the UK. From the information available to the public, it looks as if the police could make the case that there are reasonable grounds to suggest that Mr. Zalkalns might have committed an offence. In any case, it's surely worth a try to see if the Latvian authorities would accept an EAW.  

However, the EU legislation on the European Arrest Warrant uses different words. It says instead that an EAW can only be issued 'for the purposes of conducting a criminal prosecution'. However, it's arguable that arresting someone that the police reasonably believe is a potential suspect in a case is part of 'conducting' a  prosecution, even if at the end of the day the prosecution of that suspect might not go ahead if (for example) he turns out to have a good alibi when questioned. It should also be recalled that the other language versions of the EU law, which are equally valid with the English version, might also point in a more flexible direction, given the nature of other countries' criminal justice systems. 

In any event, the UK authorities could, as an alternative, send a ‘mutual assistance’ request to the Latvians to obtain Mr. Zalkalns for questioning, on the grounds, even if he is not necessarily going to be charged immediately, he may have evidence which could be relevant to the case. In future, the European Investigation Order will speed up this sort of enquiry.

In conclusion, it appears that there are lessons in this case both for the EU and the UK. The EU could supplement its existing rules with a system for exchange of information on the most serious criminal convictions and strengthen , As for the UK, the authorities let pass a number of prior and current opportunities to get hold of Mr. Zalkalns, find out about his criminal record or question him to obtain evidence; and the idea of opting out of the EU rules on the transfer of probation and parole decisions needs to be rethought.

Barnard & Peers: chapter 13, chapter 25


  1. Apparently France altered their extradition laws following the Jeremy Forrest case. Do you have any up to date information about the French extradition processes and any changes in the past two years?

  2. It would seem to me in this day and age some very elementary processes could be undertaken to prevent perverse and violent criminals from free movement within the Bloc, namely prevent the issue of passport, serious criminals should be micro chipped, with severe penalties for the removal or interferences of such, each member state should share info on conviction, of serious criminals.

  3. If one believes in the rule of English law in Rotherham, etc, England, then one has to be aware that on Wednesday 28 October 2015 the relevant rule of English law was set out in UK Statutory Instrument 2006/1003 s 21.(5)(e) that precluded stops on grounds of criminal record alone. Was due to EU Directive 2004/38 Art 27.2 second sentence.

    1. The SI was adopted in 2006 to implement the citizens' rights directive. The clause you are referring to says 'a person’s previous criminal convictions do not in themselves justify the decision'. This does not refer to stops, but to EEA decisions 'on the grounds of public policy, public security or public health'. The rule does not ban a criminal record being taken into account, but is part of the requirement that decisions be taken on a case by case basis. So it does not necessarily follow that it would be illegal to deport an EU citizen with a murder conviction. The problem is that the authorities were unaware of the conviction, as I pointed out in the blog post. 'Rotherham etc' has nothing to do with an offence committed in London; the SI is about (among other things) the immigration law impact of offences committed by (non-UK) EEA citizens and their family members, not offences committed by UK or other non-EEA citizens.