5 PROHIBITIONS ARISING FROM
CONVICTIONS FOR SEXUAL OFFENCES AGAINST CHILDREN
(a)
(27964)
11434/06
—
(b)
(27965)
13524/06
—
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Draft Framework Decision on the recognition and enforcement in the
European Union of prohibitions arising from convictions for sexual offences
committed against children
Draft Framework Decision on the recognition and enforcement in the
European Union of prohibitions arising from convictions for sexual offences
committed against children
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| Legal base | Articles 31(1)(a) and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office
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| Basis of consideration |
Minister's letter of 19 April 2007 |
| Previous Committee Report |
HC 41-ii (2006-07), para 6 (29 November 2006) and see HC 34-xxxvii (2005-06), para 17 (11 October 2006); HC 38-ix (2004-05), para 5 (23 February 2005), HC 38-iv (2004-05), para 6 (19 January 2005)
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| To be discussed in Council
| No date set |
| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
5.1 We considered the current versions of the proposal on 11 October
and 29 November 2006. The version set out in document (a) 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.
Competent authorities of the enforcing State were to recognise
any prohibition "without any formalities being required"
unless one of the permitted grounds for refusing recognition or
enforcement was invoked. The proposal would apply to prohibitions
arising from convictions for sexual offences, but not to convictions
for violence against children or for 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.
5.2 The version set out in document (b) provides
for the assimilation of a foreign prohibition to the like prohibitions
in national law, rather than for the recognition and enforcement
of the foreign order. Accordingly, Member States would be required
to give equivalent legal effects to foreign prohibitions as they
would to domestic convictions where these included a prohibition.
Member States would not be required to give effect to a foreign
prohibition if such prohibitory orders were not known in the national
law.
5.3 Both versions apply in the case of convictions
for an offence under Articles 2, 3 and 4 of Council Framework
Decision 2004/68/JHA of 22 December on combating sexual exploitation
of children and child pornography,[9]
and do not therefore apply to other kinds of offences against
children, such as those involving violence or the supply of proscribed
drugs. Both texts employ identical definitions of the concepts
of "conviction", "criminal record" and "prohibition"
and require Member States to ensure that any conviction handed
down in another Member State is given legal effects equivalent
to a national conviction whenever a person seeks employment or
exercises professional activities in relation to the supervision
of children, as referred to in Article 5(3) of Council Framework
Decision 2004/68/JHA.[10]
5.4 We noted that the Government supported the proposal
based on the principle of mutual recognition which, in essence,
would mean that an individual who was prevented from working with
children in one Member State as a result of a conviction would
be similarly prevented from working with children in another Member
State. The Government considered the mutual recognition and enforcement
of prohibitions from working with children to be beneficial for
the protection of children and that it endorsed this approach
rather than that of assimilation.
5.5 We considered the Minister's logic to be hard
to fault, since Member States are already obliged by Council Decision
2004/68/JHA to introduce prohibitory measures for the purposes
of Article 5(3) of that provision. We were less persuaded of the
merits of mutual recognition and enforcement of measures which
are imposed by administrative means, rather than by bodies exercising
judicial functions. We asked the Minister to inform us of which
approach was to be proceeded with.
The Minister's reply
5.6 In her letter of 19 April 2007 the Parliamentary
Under-Secretary of State at the Home Office (Joan Ryan) provides
us with further information on the course of the negotiations.
The Minister informs us that the objectives underlying the two
versions of the proposal will be pursued by amending the draft
Framework Decision on the organisation and content of criminal
records.
5.7 The Minister further explains that, given the
difficulty of reaching agreement on the recognition of prohibitions,
the Presidency has issued a paper to canvass the views of Member
States on their understanding of the concept of assimilation and
of how it would work in practice. In the light of information
from the Member States, the Presidency (and Belgium, which had
introduced the proposal for mutual recognition) have reached the
view that neither mutual recognition nor assimilation would provide
a solution. Instead, the Presidency has proposed that the best
way to achieve the objective of the original initiative would
be "to focus on the efficient exchange of information on
convictions which resulted in professional disqualification, and
that the appropriate vehicle would be the draft Framework Decision
on organisation and exchange of criminal records".
5.8 The Minister adds that this approach was considered
by Member States in March, when it was agreed that obligations
to request an individual's criminal record from the State of nationality,
and to respond to such requests, would be incorporated into the
draft Framework Decision on criminal records. It was also agreed
that, wherever professional disqualifications are entered into
the criminal records, there should be an obligation on Member
States to share that information. The Minister comments that this
would only cover judicial disqualifications contained on the criminal
record, and would not require Member States to exchange information
about administrative prohibitions.
5.9 Concluding, the Minister comments as follows:
"Unfortunately, it is not clear whether
work on the Framework Decision on prohibitions will continue in
its own right, given the amendments to the draft Framework Decision
on criminal records. We are waiting to hear from the Presidency
on the next steps and will update you in due course. The Government
will, of course, strongly support any continuation of this work".
Conclusion
5.10 We thank the Minister for her letter. In
many ways, this is a disappointing outcome, since it is not clear
that abandoning the present proposal in favour of amendments to
the draft Framework Decision on the organisation and exchange
of criminal record information will provide the same degree of
protection for the vulnerable as a system of recognition and enforcement
of prohibitions on working with children. That Framework Decision
does not, for example, apply to convictions against nationals
of third countries, so this would be a gap to be addressed in
some way.
5.11 Since it is not clear whether work will continue
on the present proposals we shall continue to hold them under
scrutiny, pending further information from the Minister. We also
have the draft Framework Decision on criminal record information
under scrutiny and will look forward to considering how amendments
to that proposal will achieve the objectives presently sought.
9 OJ No. L 13 of 20.01.04, p.44. Back
10
Article 5(1) of the Framework Decision requires Member States
to take the necessary measures to ensure that a convicted person
is "temporarily or permanently prevented from exercising
professional activities related to the supervision of children".
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