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
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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 | Minister's letter of 1 June 2009
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| Previous Committee Report | HC 19-xvii (2008-09), chapter 4 (13 May 2009)
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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"[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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