Select Committee on European Scrutiny Thirty-Seventh Report


17 Prohibitions arising from convictions for sexual offences against children

(26163)

14207/04

Initiative of the Kingdom of Belgium with a view to the adoption by the Council of a Framework Decision on the recognition and enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children

Legal baseArticles 31(1)(a) and 34(2)(b) EU; consultation; unanimity
DepartmentHome Office
Basis of considerationMinister's letter of 5 October 2005
Previous Committee ReportHC 38-ix (2004-05), para 5 (23 February 2005), HC 38-iv (2004-05), para 6 (19 January 2005); and see (26048) 13742/04: HC 38-i (2004-05), para 15 (1 December 2004) and (26219) 15281/04: HC 38-iii (2004-05), para 10 (12 January 2005)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information on progress awaited

Background

17.1 We considered this proposal, made by the Kingdom of Belgium, on 19 January and 23 February 2005. We noted that it provided for the recognition and enforcement of prohibitions imposed under Article 5(3) of Framework Decision 2004/68/JHA following a conviction for one of a number of offences concerning the sexual exploitation of children and child pornography under that Framework Decision.

17.2 The proposal requires the competent authorities of the enforcing State to recognise any prohibition "without any formalities being required", unless it invokes one of the grounds under Article 7 for refusing recognition or enforcement, one of which grounds is that the penalty is "time-limited" under the law of the enforcing State, and the offence is one which would be subject to the jurisdiction of that State under its own criminal law. The then Minister informed us that the Government considered that the intention was to refer to offences which were time-barred, but that clarification would be sought during the negotiations.

17.3 The Minister also agreed with us that the proposal created "the possibility of some confusion" on the question of whether the proposal applied in the case of all persons subject to a prohibition, irrespective of their nationality or residence, and that the Government would explore this matter, and the application of the proposal to third-country nationals, in the negotiations.

17.4 We noted that the proposal applied only to prohibitions arising from convictions for sexual offences, and not from convictions for violence against children or drug offences. We considered that there might be a case for causing the proposal also to apply to prohibitions arising from convictions for cruelty or other kinds of ill-treatment. We recognised that extending the proposal to cover prohibitions for offences other than those under Council Framework Decision 2004/68/JHA might raise questions of definition, but we considered that if a court has imposed a prohibition following a fair trial, the nature of the crime was less important as far as protecting children was concerned than the fact of the prohibition and the possibility of its recognition in other Member States. We held the document under scrutiny pending further information from the Minister on the progress of the negotiations.

The Minister's reply

17.5 In his letter of 5 October 2005 (received by us on 21 August 2006) the then Parliamentary Under-Secretary of State at the Home Office (Paul Goggins) informs us of the results of consultation carried out by the Government. The Minister states that most respondents have been broadly supportive of the Government's approach to the proposal, but that they have also raised a number of interesting points to which the Government will be giving further consideration.

17.6 The Minister's summary of the responses to the consultation indicates that respondents were in favour of the mutual recognition of prohibitions across the EU, but that a number identified legal and practical problems which might make agreement or implementation difficult. A majority of respondents agreed that the proposal could be extended to cover prohibitions arising from convictions for violence or drug offences, but others noted that there had been no approximation of offences of violence against children under Council Framework Decision 2004/68/JHA from which to draw a definition of the offences which would be covered. Several respondents were concerned that, if the proposal were not extended, Member States might not recognise prohibitions imposed on child sex offenders who killed their victims and who were convicted only of murder.

17.7 The Minister also notes that a majority of respondents agreed with the Government's suggestion that the scope of the proposal might be expanded to include prohibitions imposed by administrative means (i.e. other than by court order), but that some had reservations over the lack of harmonisation of administrative systems and the lack of safeguards compared with those provided by the judicial process.

Conclusion

17.8 We thank the Minister for his letter and for his summary of the consultation exercise.

17.9 We shall look forward to a further account of progress on this proposal in due course. In the meantime, we shall hold the document under scrutiny.




 
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