8 Sexual abuse and exploitation of children
and child pornography
| (a)
(31448)
8155/10
COM(10) 94
(b)
(32024)
14279/10
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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
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| Legal base | Articles 82(2) and 83(1)TFEU; QMV; co-decision
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| Document originated | (a) 29 March 2010
(b) 1 October 2010
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| Deposited in Parliament | (a) 30 March 2010
(b) 8 October 2010
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| Department | Justice
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| Basis of consideration | EM of 14 October 2010; Ministers' letters of 29 September, 13 October, and 21 October 2010
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| Previous Committee Report | HC 428-i (2010-11), chapter 23 (8 September 2010)
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| To be discussed in Council | JHA Council, 2-3 December
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| Committee's assessment | Legally important
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| Committee's decision | (a) Not cleared; further information awaited
(b) Cleared
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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.
Conclusion
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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