Documents considered by the Committee on 27 October 2010 - European Scrutiny Committee Contents

8 Sexual abuse and exploitation of children and child pornography




COM(10) 94




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

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

Legal baseArticles 82(2) and 83(1)TFEU; QMV; co-decision
Document originated(a) 29 March 2010

(b) 1 October 2010

Deposited in Parliament(a) 30 March 2010

(b) 8 October 2010

Basis of considerationEM of 14 October 2010; Ministers' letters of 29 September, 13 October, and 21 October 2010
Previous Committee ReportHC 428-i (2010-11), chapter 23 (8 September 2010)
To be discussed in CouncilJHA Council, 2-3 December
Committee's assessmentLegally important
Committee's decision(a) Not cleared; further information awaited

(b) Cleared

Previous scrutiny

8.1 We reported on this proposal on 8 September.[61] In so doing, we recognised the importance of having effective legislation in place in the EU to ensure that those who commit serious crimes against children can be prosecuted and punished in every Member State. And we saw the deterrent effect this would have. But we thought that, in laying down additional detailed common rules on the prevention of these crimes and the protection of their victims, the Commission had lost sight of the original purpose of legislating in this field at the level of the EU, and in so doing over-interpreted the EU's powers under Title V of the new Treaty on the Functioning of the European union (TFEU) — "Area of Freedom, Security and Justice".

8.2 So we agreed with the Secretary of State for Justice (Kenneth Clarke) when he said in his Explanatory Memorandum of 19 July that some of the additional rules contained in the proposed Directive, particularly on victim care and support, should be discretionary rather than obligatory. We also agreed with him that proper account should be taken in Brussels of the characteristics of the common law system, as Article 82(2) TFEU requires.

8.3 We also had the following additional concerns, which we asked the Minister to address.

  • We doubted the adequacy of the legal base of Article 82(2) TFEU as cited in the proposal. In our opinion it should specify which of sub-paragraphs (a)-(c) is applicable. As it stands, the legal base could cover all three, and we did not see how 82(2)(a) and (b) — "mutual admissibility of evidence" and "the rights of individual in criminal procedure" — could provide a legal base for this proposal.
  • We noted that Article 10 of the proposal asks Member States to take the measures necessary to disqualify those convicted of sexual offences against children from being allowed to work with children. And Article 10(4) in particular asks Member States to ensure that similar disqualifications in another Member State are "recognised and enforced". We shared the Minister's reticence about agreeing to be bound by these rules, but also asked him to say whether he thought this mutual recognition (as opposed to approximation) provision should be supported by the citation of Article 82(1)(a) as a legal base.
  • We asked the Minister to point us to the legal bases in the TFEU which give the EU power to pass legally binding rules on treatment programmes for offenders or suspected offenders (Article 20) and blocking access to websites which contain child pornography (Article 21).
  • In Article 9 the proposal sets minimum levels for maximum sentences for sexual offences against children consistently with Article 83(1) TFEU, which permits the EU to "establish minimum rules [...] concerning sanctions". Where we had a concern, however, was Article 9(2), which requires Member States to punish aggravated offences "by effective, proportionate and dissuasive penalties which are more severe penalties than those foreseen in Articles 3 to 6 for the basic offence". Whilst we shared the Minister's concerns that this would fetter judicial discretion in the passing of criminal sentences, we also wanted to know whether he thought the EU had the power under Article 83(1) TFEU and in the light of the case law of the Court of Justice on criminal penalties to oblige national courts to punish aggravated offences with "more severe penalties". If he did think the EU has this power, we asked him to explain how Article 9(2) would be implemented in domestic legislation (in view of the fact that the Commission now has infringement powers in the JHA field).
  • The Minister said at paragraph 44 of his Explanatory Memorandum that Article 16 of the proposal "requires Member States to take extra-territorial jurisdiction where the victim of the offence is one of its own habitual residents or nationals". We noted, however, that Article 16(3) of the proposal deposited in Parliament says that a Member State "may decide that it will not apply" jurisdiction on the basis of the residence or nationality of the victim. We asked the Minister to confirm that he was mistaken and that Member States do indeed have a discretion whether to exercise jurisdiction on the basis of the residence or nationality of the victim under the current proposal.

Minister's letter of 29 September 2010

8.4 In the absence of the Secretary of State for Justice, the Parliamentary Under-Secretary of State for Justice (Crispin Blunt) wrote on 29 September to respond to some of the concerns we had raised and update us on negotiations.

8.5 He explained that Article 8 of the draft Directive had been amended to address concerns highlighted by the Government about how the offences in Articles 3-5 may have inadvertently applied to legal sexual activity involving people over the age of consent. It now makes it clear that Member States may decide whether to criminalise consensual activity involving people over the age of consent where there is no abuse. The Article also allows for Member States to decide how some of the offences are applied in cases which involve certain consensual activity between children. The amendments the Government has sought have a similar effect to the exemptions agreed in the current Framework Decision[62] and the 2007 Council of Europe Convention on Combating the Sexual Exploitation of Children. They are also in line with the guidelines on prosecutorial discretion used by the Crown Prosecution Service in this sensitive area.

8.6 After recent negotiations he understood that Article 9(2) would be deleted from the Directive.

8.7 With regard to Article 16 on extra-territorial jurisdiction, the Committee was correct to note that there was a mistake in paragraph 44 of the Explanatory Memorandum, for which the Minister apologised. It is clear that Article 16 does not compel Member States to apply extra-territorial jurisdiction on the basis of the residence or nationality of the victim. The UK does not extend jurisdiction on this basis, although it does extend jurisdiction in certain cases where the offender is a UK national (or a resident, although there must be dual criminality), such as for offences involving the sexual abuse of children.

8.8 Finally, in light of the progress made during the negotiations on the criminal law offences (Articles 1-13, but not Article 10) the Minister explained that the Presidency was seeking to agree a "partial" general approach at the Justice and Home Affairs Council on 7-8 October in order to take forward negotiations with the European Parliament. As the Government's concerns on these Articles had been addressed the Minister sought our consent to the Minister agreeing in the Council to the partial general approach.

Minister's letter of 13 October

8.9 The Secretary of State for Justice wrote on 13 October to say that the Presidency did not in the end seek a partial general approach on this Directive because of outstanding Parliamentary scrutiny reservations. Instead, it sought informal agreement on Articles 1-9 and 11-13 and concluded that there was a sufficient basis for them to open informal discussions with the European Parliament; the formal negotiations would not commence until the remainder of the text had been discussed and agreed by the Council.

8.10 The Government also deposited the latest text of the criminal law provisions in the proposal (document (b)) on 7 October and the Minister said he had deposited an Explanatory Memorandum (EM) about it. He explained that this document deals with our outstanding concerns in relation to Articles 1-9 and 11-13 and he hoped that we would now agree to lifting the Parliamentary scrutiny reserve on these Articles.

Explanatory Memorandum of 14 October

8.11 The Minister explains that Articles 3 to 6 are concerned with setting minimum rules on conduct which would constitute a criminal offence in respect of sexual abuse of children, sexual exploitation of children, child pornography, and the solicitation of children for sexual purposes. In doing this the Commission is seeking to ensure particularly that a potential offender cannot gain advantage by travelling between Member States to sexually abuse children where these rules are more lenient.

8.12 The Articles also set out minimum maximum penalties for each of the offences in Articles 3 to 6. The approach differs from the current Framework Decision as that instrument allows for a range of minimum maximum sentences for particular types of offences, whereas the proposed Directive specifies a required minimum maximum penalty for each offence. The proposed minimum maximum penalties are generally significantly higher than under the current Framework Decision but in some cases are lower than those contained in the original proposal of 30 March.

8.13 The Government was initially concerned that the offences as drafted in the original proposal would capture consensual, lawful sexual activity involving children who are over the age of sexual consent. A number of amendments have been incorporated in the text, by the revised definition of 'pornographic performance' in Article 2, and by the exemptions in Article 8, to avoid this and to allow Member States to decide on the extent to which they apply the criminal law in this area. Recital 7 has also been amended to make it clear that the Directive does not govern Member States' policies on consensual sexual activity that children may participate in as part of growing up.

8.14 Article 3 sets out a range of offences concerning the sexual abuse of children including in cases involving the abuse of a recognised position of trust. The original Article 3(2) has been divided into Article 3(2) and Article 3(2a) to allow Member States to apply a different level of penalty to each of the offences. Both offences are caught by the Sexual Offences Act 2003 in the England and Wales although the level of penalty in the UK is substantially higher. The 'abuse of trust' offences in Article 3(4) and the 'coercion' offence in Article 3(5) have been amended to allow for a differentiation in penalty depending on whether the victim is above or below the age of consent and the penalties in relation to articles 3(4)(i) and (ii) have been reduced. This behaviour and the levels of penalties are covered by various offences within the Sexual Offences Act 2003, depending on the facts of each case. The Government is able to accept this Article following these amendments.

8.15 Article 4 establishes a range of offences involving child prostitution and pornographic performances. The offences have been restructured in light of requests from Member States; the amendments also allow for different levels of sentencing dependant on whether the victim is aged above or below the age of consent. The Government is content that 'pornographic performance' has been clarified to show that it is not intended to capture consensual sexual conduct within personal relationships, particularly where the 'child' is over the age of consent and that recital 7 and Article 8 (2) allow Member States further discretion in how they apply this offence to non abusive, consensual activity. The Government is able to accept this Article.

8.16 Article 5 outlines the conduct which would constitute offences concerning child pornography (indecent photographs of children). The Article differs from that originally proposed in that there is now a lower minimum maximum penalty for the 'production' offence at Article 5(7) (previously Article 5(6)). The Article also now provides Member States with the discretion to decide whether the Article applies in cases where the person depicted is proven to be aged 18 years or over and in cases of 'virtual' child pornography. The scope of this Article is also affected by the new Article 8(3) which contains protections similar to those which exist in our domestic legislation for individuals who acquire, possess or produce child pornography of children who have reached the age of consent for private use and with the child's consent. The Government is able to accept this amended Article.

8.17 Article 6 is a new offence of 'Solicitation of Children for Sexual Purposes'. This is comparable to the offence (in the law of England and Wales) of 'arranging or facilitating the commission of a child sex offence' and similar to the offence of 'meeting a child following sexual grooming', although the offence in Article 6 is narrower because it has been restricted to conduct involving the use of information and communication technology, and wider in that Article 6 only requires a single communication prior to the meeting whereas the grooming offence in the Sexual Offences Act 2003 requires the offender to have met or communicated with the victim on at least two occasions. The Government does not believe that there is a need to limit this offence to the use of information and communication technology but accepts that this is a minimum standard and can agree to the current wording.

8.18 As with the current Framework Decision, the proposed Directive includes provisions in respect of instigation, aiding and abetting and attempting the offences covered earlier in the Directive. UK legislation already allows for such offences. Article 7 originally contained provisions specifically covering dissemination of materials advertising the opportunity to commit such offences and organising travel arrangements with the purpose of committing such offences but this has now been removed from Articles 1-13. The Government can accept this amended Article.

8.19 Article 8 on consensual sexual activities between peers has been amended as described above.

8.20 Article 9 sets out a range of circumstances which should be considered as aggravating circumstances for the offences in Articles 3-7, if they do not already form part of the elements of the original offences. The original Article 9(2) has been removed and Article 9(1) has been amended to provide for Member States to apply this Article according to their internal law. England and Wales do this by way of sentencing guidelines. In Northern Ireland these guidelines can be taken into account in sentencing decisions. (Northern Ireland is considering whether to establish its own Sentencing Council.) In Scotland, sentencing is a matter for the judiciary which is able to take into account the aggravating circumstances listed when sentencing. (Scotland is establishing a Sentencing Council.) New recital 7(a) makes clear that there is no attempt to fetter judicial discretion. The Government can accept the revised wording of this Article.

8.21 Article 13 on victims has been amended to take into account changes to the earlier criminal law Articles.

Minister's letter of 21 October

8.22 The Secretary of State for Justice writes again, in response to the outstanding queries we had raised and to provide an update on the negotiations in respect of the Articles to which those queries apply. He tells us that an informal agreement was reached at the Justice and Home Affairs Council on the substantive law provisions (Articles 1-13 of the proposal except 10). Negotiations on the remaining Articles will continue with a view to reaching a general approach on the entire text at the JHA Council on 2 and 3 December.

8.23 In our first Report we asked whether the text should cite the sub-paragraphs of Article 82(2) TFEU. The Government is content that the text refers simply to Article 82(2) because all three subparagraphs are relevant and notes that the ECJ does not require each subsection of an Article to be cited in legislation like this. So it does not intend to raise this matter in negotiations.

8.24 We requested an indication as to whether Article 10(4) concerning enforcement of employment disqualifications of convicted child sex offenders should be supported by Article 82(1)(a) of the Treaty on the Functioning of the European Union (TFEU). The Government agrees that Article 82(1)(a) should ideally be cited in this context, and it intends to raise this in negotiations. However, according to the Minister it is not essential that all relevant legal bases are cited in Directives, as long as the EU does in fact have the requisite powers in the Treaty.

8.25 In addition, we asked the Minister to point to the legal bases which give the EU power to pass legally binding rules on treatment programmes for offenders or suspected offenders and blocking access to websites containing child pornography. While the Minister agrees that the Union cannot require Member States to harmonise their laws in these areas, the Union could use the general crime prevention legal base in Article 84 TFEU to impose some obligations in these areas. The Government intends to raise this in negotiations.

8.26 The Minister does not accept that intervention programmes in Article 20 can be considered a "sanction," even in respect of convicted offenders, so he agrees with us that this proposal is not supported by Article 83(1) TFEU as a legal base. However, intervention programmes can be considered to be crime prevention measures under Article 84 TFEU rather than sanctions, and an EU-wide requirement that all Member States take some action in this area (short of harmonising their laws) would support Member State action in relation to such measures. It would help the UK if other Member States also rehabilitated people convicted of sex offences, who of course are free to travel to the UK after they have served their sentences. The Government will seek appropriate amendments to this Article.

8.27 With regard to Article 21 on blocking websites containing child pornography, the Minister supports the policy of blocking websites, which is an important mechanism for preventing the distribution of child pornography on the internet. The Government will therefore seek to amend the wording so that Member States are merely required to support internet blocking, which would be in line with the scope of Article 84 TFEU. As with the points above, the Government considers it desirable but not essential for Article 84 TFEU to be cited as an additional legal base.


8.28 We thank both Ministers for the information they have provided since we last reported on this proposal.

8.29 On the revised criminal law provisions, document (b), we are particularly pleased to note that Article 9(2) on penalties for aggravated offences has been deleted — this struck us as a step too far in the setting of criminal tariffs by the EU — and replaced by recital 7(a), which we hope sets a useful precedent. We are also grateful to the Minister and his officials for not agreeing to a partial general approach on document (b) during Parliamentary recess. Having considered the revisions made, we are now content to clear document (b) from scrutiny.

8.30 We note that the Minister will raise in negotiations a number of the concerns we had about citation of the correct legal bases, the aim being to add Articles 82(1) and 84 TFEU as legal bases. We are grateful for this: given that a supranational source of binding criminal law and procedure is such a sensitive area for the UK, as for any State, we think it important that the power conferred on the EU to pass such laws, and the legislative procedure which the EU institutions have to follow in passing such laws, is correctly cited. As the Minister will know, the legal base which is cited will also determine whether the subsidiarity early warning mechanism for national parliaments under Protocol 2 is applicable. However, the Minister does not agree, saying in his letter of 21 October that "it is not essential that all relevant legal bases are cited in Directives, as long as the EU does in fact have the requisite powers in the Treaty". We ask the Minister to provide us with the necessary further support for this remark, as we consider it highly significant.

8.31 The Minister also says that it is not necessary to cite the sub-paragraphs in Article 82(2) TFEU and that the ECJ does not require "each sub-section of an article to be cited in legislation like this". We would be grateful for reference to the ECJ's judgments on legislation like this on which the Minister relies in making this remark. We also note in passing that 82(2)(d) is a quasi-passerelle clause and a non-legislative act, and ask the Minister whether, were this to form the basis for EU action in the future, he thinks it would need to be cited in full as the legal base, rather than simply Article 82 TFEU.

8.32 The Minister said in his letter of 29 September that he would provide us with a full Regulatory Impact Assessment as soon as possible, which we look forward to receiving.

8.33 Pending the Minister's replies to the above, we shall keep the remainder of the proposal, document (a), under scrutiny.

61   See headnote. Back

62   2004/68/JHA. Back

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