European Scrutiny Committee Contents


4 Sexual abuse and exploitation of children and child pornography

(30519) 8150/09 COM(09) 135 + ADD 1

+ ADD 2

Draft Council Framework Decision on combating the sexual abuse and sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA

Commission Staff Working Paper: Impact Assessment

Legal baseArticles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
Document originated25 March 2009
Deposited in Parliament1 April 2009
DepartmentJustice
Basis of considerationMinister's letter of 1 June 2009
Previous Committee ReportHC 19-xvii (2008-09), chapter 4 (13 May 2009)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information awaited

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"[22] 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,[23] 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.

4.4 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". With reference 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."

4.5 The draft proposal for a replacement Framework Decision therefore:

  • broadens the scope of crimes covered to include the grooming of children on the Internet, viewing (in addition to downloading) child pornography, and acts preparatory to the commission of a sexual offence against a child, for example making travel plans for sex tourism;
  • applies higher levels for maximum penalties, and sets out aggravating offences which increase such levels from 6 to10 and twelve years;
  • pays greater attention to the needs of child victims involved in criminal proceedings and more generally;
  • prescribes rules for the investigation and prosecution of cases to increase the chances of convicting sex offenders;
  • places an obligation on Member States' prosecution authorities to assert extra-territorial jurisdiction to prosecute cases where not only the offender but also the victim is a national or a resident of the Member State;
  • proposes risk assessment and rehabilitation measures for sex offenders, and exchange of information on sex offenders between Member States;
  • requires Member States to take measures to ensure that internet pages containing or disseminating child pornography can be blocked from public access.

Previous scrutiny

4.6 We first reviewed this draft Framework Decision on 13 May.[24] We reported on the details of the proposal and concluded that:

  • We recognised the importance of reinforcing legislation for preventing this type of crime and prosecuting those who perpetrate it.
  • The proposed Framework Decision risked marginalising the recent opening for signature of a Council of Europe Convention on the Protection of Children against Sexual Exploitation and Abuse, which the Commission suggested "arguably constitutes the highest international standard for protecting children against sexual abuse and exploitation to date".
  • Articles 11, 12, 14 and 15 contained far-reaching provisions on investigative procedure and the needs of child victims which were overly prescriptive.
  • Article 13 obliged Member States to assert extra-territorial jurisdiction on the basis of the nationality of the victim, whereas the UK traditionally asserted extra-territorial jurisdiction on the basis of the nationality of the offender.
  • The minimum maximum terms of imprisonment of, respectively, six, ten and 12 years depending on aggravating circumstances might fetter the discretion of the judiciary to decide the sentence on the facts of each particular case.

The Minister's letter of 1 June 2009

4.7 The Parliamentary Under-Secretary of State at the Ministry of Justice (Lord Bach) wrote on 1 June in response to the Committee's Report. On the co-existence of this proposal for an EU Framework Decision on combating the sexual abuse of children with the Council of Europe Convention on the same subject, the Minister states:

"The main difference of course with regard to the Convention is that all EU Member States are obliged to give effect to the Framework Decision. In respect of the particular area of the sexual exploitation of children, and the growing misuse of the Internet, which enables transnational sexual abuse of children, we consider that the changes proposed in the Framework Decision reinforce the drive to combat the sexual exploitation of children. We would therefore expect the Framework Decision to further strengthen the international legal framework against the sexual exploitation of children but not detract from the CoE Convention."

4.8 Regarding Articles 11, 12, 14 and 15 the Minister states that the Government shares the Committee's concerns that some of these provisions are wide-ranging and prescriptive and believes it is vital that the EU legislation takes account of different national systems. The Government's concerns lie chiefly in relation to Articles 14 and 15. For example, it thinks that the right of a child victim to legal aid is only appropriate where the child victim is a party to legal proceedings. It is not appropriate in the UK where the victim's interests are represented by the prosecution. The Government intends to press for that provision to be amended accordingly. It will also seek to amend Article 15(3) so that the child's right to give evidence without being present in court is subject to judicial discretion. The Minister informs us the Government will be seeking further information from the Commission about the intention behind the detail of some of these articles and, in due course, will advise us which of these provisions the Government intends to challenge.

4.9 The Minister comments that the terms of Article 13 are significantly different to the current Framework Decision, and the Council of Europe Convention, which include greater flexibility for Member States in respect of requirements to establish jurisdiction over offences taking place outside their territory. The Minister wants the flexibility of the existing instruments to be maintained.

4.10 Turning to Article 7, the Minister states that he shares the Committee's view of the importance of preserving the judiciary's discretion in deciding sentences based on the particular circumstances of each case. But because the Article only prescribes minimum maximum sentences ("at least 6/10/twelve years"), this means the UK can have a higher maximum for the individual offence but not a lower one. As with any other offence in the UK judges have discretion to impose any sentence they think appropriate up to the maximum prescribed by legislation. This provision is therefore no different from any other offence which carries a maximum sentence.

4.11 The Minister concludes his letter by agreeing to keep us regularly updated on the progress of negotiations.

Conclusion

4.12 We are grateful to the Minister for his replies on Articles 11, 12, 14 and 15 and note that the Government will be seeking further information from the Commission "about the intention behind the detail of some of these provisions". We look forward to being informed of which of these provisions it intends to challenge in light of further explanations from the Commission.

4.13 We support the Minister in wishing to maintain flexibility on extra-territorial jurisdiction to prosecute theses offences, and note his other responses.

4.14 We would also be grateful to be kept informed of significant developments in the progress of negotiations, and we shall keep the document under scrutiny.





22   2004/68/JHA. Back

23   The Council of Europe comprises 47 Member States, including the 27 Member States of the European Union. Back

24   See headnote. Back


 
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