4 Sexual abuse and exploitation of
children and child pornography
| (30519)
8150/09
COM(2009) 135
+ ADD 1
+ ADD 2
| Draft Council Framework Decision on combating the sexual abuse, sexual exploitation of children, and child pornography, repealing Framework Decision 2004/68/JHA
Commission Staff Working Paper: Impact Assessment
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| Legal base | Articles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
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| Document originated | 25 March 2009
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| Deposited in Parliament | 1 April 2009
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| Department | Justice |
| Basis of consideration | EM of 16 April 2009
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information awaited
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Background: existing regional and international instruments
in this field
4.1 At EU level, Council Framework Decision on "combating
the sexual exploitation of children and child pornography"[11]
requires approximation of Member State legislation to criminalise
the most serious forms of child sexual exploitation and pornography;
to extend domestic jurisdiction extra-territorially for the prosecution
of these crimes when committed abroad by an offender who is a
national of an EU Member State; and to provide for a minimum of
assistance to victims. The Framework Decision came into force
in 2006. The proposed draft Framework Decision would repeal and
replace the current Framework Decision.
4.2 At Council of Europe level,[12]
a Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (the CoE Convention) was opened for signature
in October 2007. It has been ratified by two CoE Member States
but has not yet entered into force. It will do so once five States,
including three CoE Member States, have ratified it.
4.3 At UN level, the Optional Protocol to the Convention on
the Rights of the Child on the Sale of Children, Child Prostitution
and Child Pornography of 2000 sets the international standard.
Seven EU Member States have not ratified the Protocol.
Legal base
4.4 Title VI of the EU Treaty contains the legal base for
EU action on offences against children. Article 29 EU says that
the Union's objective is to provide its citizens with a high level
of safety in an area of freedom, security and justice through
police and judicial cooperation in criminal matters. Offences
against children are singled out as a particular objective. Article
31(1)(e) EU states that common action on judicial cooperation
in criminal matters includes adopting measures establishing minimum
rules on both the constituent elements of criminal acts and penalties
"in the fields of organised crime". Article 34(2)(b)
authorises the Council to adopt Framework Decisions for the approximation
of the laws of the Member States. Framework Decisions are binding
as to the results to be achieved but leave Member States discretion
how to give effect to them; they do not entail direct effect.
Need for further EU legislation — the Commission's explanatory
memorandum
4.5 The Commission considers that the existing Framework Decision
needs updating and reinforcing. In its explanatory memorandum
of March 2009, the Commission states that "[d]espite a lack
of accurate and reliable statistics, studies suggest that a significant
minority of children in Europe may be sexually assaulted during
their childhood, and research also suggests that this phenomenon
is not decreasing over time, rather that certain forms of sexual
violence are on the rise". It comments that the EU's policy
to prevent and combat offences against children "should be
done by building a more coherent framework for combating these
crimes under the third pillar and by increasing its effectiveness.
Specific objectives would be to effectively prosecute the crime;
to protect victims' rights; to prevent child sexual exploitation
and abuse; and to establish effective monitoring systems."
4.6 With regard to child victims, the Commission reports that
"the main cause of this phenomenon is vulnerability resulting
from a variety of factors. Insufficient response by law enforcement
mechanisms contributes to the prevalence of these phenomena, and
the difficulties are exacerbated because certain forms of offences
transcend national borders. Victims are reluctant to report abuse,
variations in national criminal law and procedure may give rise
to differences in investigation and prosecution, and convicted
offenders may continue to be dangerous after serving their sentences.
Developments in information technology have made these problems
more acute by making it easier to produce and distribute child
sexual abuse images while offering offenders anonymity and spreading
responsibility across jurisdictions. Ease of travel and income
differences fuel so-called child sex tourism, resulting often
in child sex offenders committing offences abroad with impunity.
Beyond difficulties of prosecution, organised crime can make considerable
profits with little risk."
4.7 In terms of existing legislation in EU Member States,
the Commission comments that national legislation covers some
of these problems, but only "to varying degrees". National
legislation "is not strong or consistent enough to provide
a vigorous social response to this disturbing phenomenon".
4.8 In relation to the existing Framework Decision the Commission
concludes that "[a]lthough the requirements have generally
been put into implementation, the Framework Decision has a number
of shortcomings. It approximates legislation only on a limited
number of offences, does not address new forms of abuse and exploitation
using information technology, does not remove obstacles to prosecuting
offences outside national territory, does not meet all the specific
needs of child victims, and does not contain adequate measures
to prevent offences."
4.9 So the Commission proposes a replacement Framework Decision
to include the following new elements:
"- On substantive criminal law in general
"Serious forms of child sexual abuse and exploitation currently
not covered by EU legislation would be criminalised. This includes,
for instance, the organisation of travel arrangements with the
purpose of committing sexual abuse, something particularly relevant,
but not exclusively, in the context of child sex tourism. The
definition of child pornography is amended to approximate it to
the CoE Convention and the [UN] Optional Protocol.
"- On new criminal offences in the IT environment
"New forms of sexual abuse and exploitation facilitated by
the use of IT would be criminalised. This includes knowingly obtaining
access to child pornography, to cover cases where viewing child
pornography from websites without downloading or storing the images
does not amount to 'possession of' or 'procuring' child pornography.
Also the new offence of 'grooming' is incorporated closely following
the wording agreed in the CoE Convention.
"- On criminal investigation and initiation of criminal proceedings
"A number of provisions would be introduced to assist with
investigating offences and bringing charges. A mechanism to coordinate
prosecution in cases of multiple jurisdictions is included, but
may be superseded once the Proposal for a Framework Decision on
conflict of jurisdiction in criminal proceedings is adopted.
"- On prosecution of offences committed abroad
"Rules on jurisdiction would be amended to ensure that child
sexual abusers or exploiters from the EU face prosecution even
if they commit their crimes outside the EU, via so-called sex
tourism.
"- On protection of victims
"New provisions will be included to ensure that victims have
easy access to legal remedies and do not suffer from participating
in criminal proceedings.
"- On prevention of offences
"Amendments would be introduced to help prevent child sexual
abuse and exploitation offences, through a number of actions concentrating
on previous offenders to prevent recidivism, and to restrict access
to child pornography on the internet. The aim of restricting such
access is to reduce the circulation of child pornography by making
it more difficult to use the publicly-accessible Web. It is not
a substitute for action to remove the content at the source or
to prosecute offenders."
The draft Framework Decision
ARTICLE 1 — DEFINITIONS
4.10 Article 1 sets out the definitions for the purposes of
this Framework Decision. These are generally in line with the
existing Framework Decision but also incorporate definitions of
"child pornography" and "child prostitution"
from the CoE Convention, and a new definition of "pornographic
performance". A "child" is any person below the
age of 18 years.
ARTICLES 2-6 — OFFENCES
4.11 Articles 2 to 6 set out offences covering
sexual abuse of children (Article 2), sexual exploitation of children
(Article 3), child pornography (Article 4) and the solicitation
of children for sexual purposes (Article 4). Article 5 covers
liability of secondary parties for instigating, aiding and abetting
the above crimes, and also liability of principals for attempts
and "preparatory offences".
ARTICLE 7 — PENALTIES AND AGGRAVATING CIRCUMSTANCES
4.12 Article 7(1) prescribes a maximum penalty
for the above crimes of "at least six years"; and of
"at least ten years" (Article 7(2)) when their commission
involves any of the following aggravating circumstances: the child
has not reached the age of sexual consent under national law;
the offence was committed against a child in a particularly vulnerable
situation, notably because of a mental or physical disability
or a situation of dependence; the offence was committed by a member
of the family, a person cohabiting with the child or a person
having abused his or her authority; the offence was committed
by several people acting together; the offences are committed
within the framework of a criminal organisation within the meaning
of Framework Decision 2008/841/JHA; and the perpetrator has previously
been convicted of offences of the same nature. Article 7(3) prescribes
a maximum penalty of "at least twelve years" where the
offence "endangered the life of the child" or where
the offence involved "serious violence or caused serious
harm to the child". Article 7(4) provides that Member States
may, depending on a risk assessment on the offender, apply other
sanctions or measures alongside imprisonment, which shall include
intervention programmes or measures as referred to in Article
17.
ARTICLE 8 — DISQUALIFICATION ARISING FROM CONVICTIONS
AND EXCHANGE OF INFORMATION
4.13 Article 8 provides for Member States temporarily
or permanently to exclude people convicted of the offences in
Articles 2 to Article 6 from situations which involve regular
contact with children, after a risk assessment has established
that the person represents a danger and there is a risk of repetition.
Article 8(3) facilitates the exchange of information between Member
States about disqualification from activities with children. Article
8(4) requires measures to ensure recognition of the disqualification
measures by each Member State.
ARTICLES 9 AND 10 — LEGAL PERSONS
4.14 These articles outline corporate liability
for the commission of these crimes. Similar articles are contained
in the existing Framework Decision (Articles 6 and Article 7).
ARTICLES 11, 12, 14 AND 15 — VICTIMS
4.15 Articles 11 and 12, along with Articles
14 and 15, represent
a much greater focus than in the existing Framework Decision on
the needs of child victims. Article 11 states that Member States
shall provide for the possibility of not prosecuting or imposing
penalties on child victims even where such victims were involved
in the offences in Articles 2 to 6 (for example being a 'child
prostitute'). Article 12 sets out measures which would help enable
investigations to take place, including in the absence of a complaint
being made by the victim, or where a complaint has been withdrawn.
These include staying a prosecution until the victim has become
an adult; ensuring that rules on confidentiality applied by children's
services do not hinder the reporting of any of the crimes listed
in Articles 2 to 6; allowing for the possibility of covert investigations
into computer networks; and the identification of victims by investigators
by analysing child pornography material.
4.16 Article 14 seeks to ensure that Member States
provide a range of assistance to address the need of child victims.
This includes a presumption that a victim is a child when his
or her age is uncertain; the appointment by a court of a special
representative for the child victim in the absence of parents
or guardians; short- and long-term actions to assist the child
victim in their "physical and psycho-social recovery"
following a specific assessment; and free legal counselling and
free legal representation in criminal proceedings. Article 15
sets out a list of procedures Members States should follow when
child victims are interviewed with a view to bringing criminal
proceedings, and stipulates that videotaped interviews may be
used as evidence in a criminal court, that a judge may order court
hearings to be in camera, and that the child victim may be heard
in the court room without being physically present (for example
by video-link).
ARTICLE 13 — JURISDICTION AND CO-ORDINATION
OF PROSECUTIONS
4.17 Article 13 sets out requirements for States
to establish jurisdiction over prosecutions for offences covered
by Articles 2 to 6. It extends the extra-territorial jurisdiction
to prosecute these crimes to the nationality or permanent place
of residence of the victim as well as offender, and removes the
discretion contained in Article 8(2) of the existing Framework
Decision for Member States not to assert jurisdiction where an
offence is committed outside its territory. Article 13(5) addresses
cooperation between Member States where more than one Member States
has jurisdiction to prosecute.
ARTICLE 16 — RISK ASSESSMENT
4.18 Article 16 is a new Article which requires
Member States to ensure that persons convicted of the offences
set out in Articles 2 to 6 are made subject to an assessment process
to establish what danger they present, their risk of re-offending
and the subsequent need for an intervention programme and/or disqualification
from working with children.
ARTICLE 17 — INTERVENTION PROGRAMMES OR MEASURES
4.19 Article 17 is a new Article which seeks
to ensure that all Member States have intervention or treatment
programmes available for individuals who may sexually offend against
children. It sets out requirements for access to such programmes
by offenders, those charged with offences and those who fear they
might commit offences.
ARTICLE 18 — BLOCKING OF WEBSITES CONTAINING
CHILD PORNOGRAPHY
4.20 Article 18 is a new
article which requires Member States to take
the necessary measures to enable judicial or police authorities
to block access by internet users to internet pages containing
or disseminating child pornography.
MISCELLANEOUS
4.21 Articles 19 and 21 are procedural, repealing
the existing Framework Decision and requiring implementation of
the new Framework Decision within two years of its adoption.
The Minister's Explanatory Memorandum of 16 April
4.22 In his Explanatory Memorandum of 16 April,
the Parliamentary Under Secretary of State at the Ministry of
Justice (Lord Bach) provides an overview of the Government's response
to each Article of the proposed Framework Decision. In sum, the
Minister is broadly supportive of the proposal subject to certain
concerns being met in the Council working group negotiations.
4.23 Offences (Articles 2 — 6):
The Minister comments that the conduct covered in Articles 2 to
6 is wider than in the existing Framework Decision. For example,
the provisions on aiding and abetting have been expanded to include
preparatory offences so that organising travel arrangements with
the purpose of sexual tourism are covered. He also notes that
the new proposal does not contain the same protections for those
above the age of consent but still under the age 18, thus it may
inadvertently criminalise legal sexual activity. The Minister
will seek to rectify this.
4.24 The Minister comments on Article 5 on "grooming"
in particular. He reports that this type of activity was made
illegal in the United Kingdom in 2004 (Sexual Offences Act 2003)
and in 2005 (The Protection of Children and Prevent of Sexual
Offences (Scotland) Act 2004). Whilst welcoming the provision,
the Minister notes that the wording of the Article restricts solicitation
to situations where it is carried out only "by means of an
information system" (i.e. computer). It is not apparent to
him why it has been limited in this way: the Government would
prefer a more wide-ranging definition. He also notes that the
offences referred to in Articles 2 to 6 represent a minimum consensus
which does not preclude the UK supplementing them or establishing
higher standards in domestic law.
4.25 Penalties (Articles 7): The
Minister comments that there is a need to have effective and dissuasive
penalties for the offences set out in Articles 2 to 6 and so Article
7 appears unobjectionable. He notes that the suggested maximum
sentences have been increased substantially in this proposal (and
reference to minimum sentences removed). Overall, the Minister
supports the harmonisation of maximum penalties to ensure that
there is no advantage for a criminal in travelling to another
Member State to commit acts of abuse against children. The Government
will however reflect further on the detail of the "intervention
programmes or measures" referred to in Article 7(4).
4.26 Disqualification and exchange of information
(Article 8): The Minister states that the Government supports
the principle of exchanging and recognising disqualifications
from working with children between Member States but will wish
to ensure that the final draft of the Article reflects workable
mechanisms to achieve this. The Government also supports specific
provision for the exchange of information between Member States
on the conviction of sex offenders.
4.27 Victims (Articles 11, 12, 14 and 15):
The Minister comments that the Government recognises the key importance
of ensuring that victims are at the heart of the criminal justice
system in each Member State. That said, it is vital to ensure
that EU legislation takes account of different national systems.
He therefore broadly welcomes the new focus of these provisions
on the victim, albeit that further work will need to be done to
ensure that these provisions build on existing good practice (including
national practice) and is consistent with existing international
obligations. The UK already has a range of special measures for
children when they participate in court proceedings as victims
or witnesses and the Government will need to consider these alongside
its international obligations.
4.28 Jurisdiction and co-ordination of
prosecutions (Article 13): The Minister reports
that the UK already has some extra-territorial jurisdiction for
child sexual abuse offences. He notes that the provisions in the
proposal go further than those in the existing Framework Decision.
The Government will consider the implications further. The Minister
welcomes all efforts to encourage dialogue between Member States
regarding where criminal proceedings should be brought, and in
particular recognises the importance of Eurojust in helping to
settle any conflicts. However, it will be important to ensure
that there is consistency between the provisions of this Framework
Decision and the Framework Decision on Conflicts of Jurisdiction.
4.29 Risk Assessment (Article 16):
The Government will be comparing these provisions with the current
processes which already exist in the UK but the Minister broadly
welcomes the principle behind the Article.
4.30 Intervention programmes (Article 17):
The Minister welcomes the principle behind this Article and will
again be comparing this approach to the programmes which already
exist in the UK.
4.31 Blocking of websites (Article 18):
The Minister comments that such blocking already occurs in
the UK through voluntary action by the internet industry. The
Government will be seeking further clarification on the wording
of this Article but it strongly supports such action to prevent
access to these images.
Conclusion
4.32 We recognise the importance of reinforcing
legislation for preventing this type of crime and for prosecuting
those who perpetrate it. We similarly recognise that legislation
combating this type of crime must keep up with changing patterns
of offending, particularly in view of the increased scope for
offending offered by the Internet.
4.33 But we note that a Council of Europe
Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (CoE Convention) was only recently opened for
signature, and is yet to come into force. The Commission in its
explanatory memorandum states that this Convention "arguably
constitutes the highest international standard for protecting
children against sexual abuse and exploitation to date".
Given this, we would be grateful to know the Minister's views
on how the proposed Framework Decision will coexist with the CoE
Convention, and also on whether it will have the effect of marginalising
the Convention, making its ratification less pressing for EU States
and, as a consequence, other CoE States. It seems to us that this
is a matter of general importance, if not concern. We raised a
similar point when we recently reported on the draft Framework
Decision on preventing and combating trafficking in human beings,
and protecting victims.[13]
4.34 We look forward to being regularly updated
on the progress of negotiations. We limit ourselves to the following
comments at this stage:
- Articles 11, 12, 14 and
15 of the draft framework Decision contain far-reaching provisions
on investigative procedure and the needs of child victims. Some
of these provisions seek to bind police and prosecutorial discretion
in the investigation and prosecution of these crimes. In our view
this would limit the independence of our national police and prosecution
services. We would be grateful to know whether the Minister shares
this view. Similarly, some of the provisions on the needs of child
victims appear overly-prescriptive and are inconsistent with existing
national provisions. Again, we would be grateful to know from
the Minister in due course which of these provisions the Government
intends to challenge.
- Article 13 of the draft
Framework Decision binds Member States to assert extra-territorial
jurisdiction on the basis of nationality of the victim (as well
as of the offender). We would be grateful to know whether the
Minister intends to agree to this proposal.
- We note that Article 7 proposes
that Member States should ensure that these crimes should be punishable
by imprisonment for a maximum term of imprisonment of not less
than 6 years, 10 years, or twelve years depending on the circumstances.
We are minded to conclude that this might unacceptably fetter
the discretion of the judiciary to decide sentence on the facts
of each particular case. But before we reach a final view, we
should be grateful for the Minister's comments on the question.
4.35 Pending the Minister's replies to our
requests for further information, we shall keep the document under
scrutiny.
11 2004/68/JHA. Back
12
The Council of Europe comprises 47 Member States, including the
27 Member States of the European Union. Back
13
(30513) 8151/09: see HC 19-xv (2008-09), chapter 3 (29 April 2009). Back
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