2 Sexual abuse and exploitation of
children and child pornography
| (a)
(31448)
8155/10
COM(10) 94
(b)
(32322)
—
—
|
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 base | Articles 82(2) and 83(1) TFEU; QMV; co-decision
|
| Department | Justice
|
| Documents originated | (a) 29 March 2010
(b) —
|
| Deposited in Parliament | (a) 30 March 2010
(b) 13 December 2010
|
| Basis of consideration | Minister's letter of 15 December 2010; EM of 15 December 2010
|
| Previous Committee Report | (a) HC 428-i (2010-11), chapter 23 (8 September 2010); HC 428-v (2010-11), chapter 8 (27 October 2010); HC 428-ix (2010-11), chapter 10 (24 November 2010)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
|
| Committee's decision | (a) Cleared
(b) For debate in European Committee B
|
Introduction
2.1 The proposal seeks to establish minimum rules on the definitions
of criminal offences and sanctions for sexual abuse and sexual
exploitation of children and child pornography. It also covers
areas such as making available to employers information about
offenders who are disqualified from activities with children,
the organisation of travel arrangements for the purpose of sexual
offending, assistance to victims during investigations and criminal
proceedings and the blocking of websites containing images of
child sexual abuse. The Directive is wider in scope than the Framework
Decision which it would repeal.
Previous scrutiny
2.2 We reported on this proposal on 8 September, 27 October
and 24 November 2010.[3]
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".
2.3 In the conclusion of our Report on 24 November:
- we noted that the negotiations
have led to a marked improvement in the text, document (a), from
the UK's perspective; we were glad to see that many of the provisions
which had caused us concern were either consistent with common
law practice or could be implemented by Member States through
non-legislative means;
- we gave our agreement to the Minister consenting
to a general approach on this proposal at the JHA Council on 3
December under paragraph (3)(b) of the Scrutiny Reserve Resolution,
which also enabled us to keep the proposal, document (a) under
scrutiny; and
- we asked for the version of the text agreed in
the JHA Council to be deposited with any additional explanations
from the Minister as required.
The Government's view
THE MINISTER'S LETTER OF 15 DECEMBER 2010
2.4 The Secretary of State for Justice (Mr Kenneth
Clarke) wrote to us on 15 December to say that he had deposited
a revised version of the text, document (b), with a new Explanatory
Memorandum, also dated 15 December, in Parliament. His letter
also attached a copy of the UK's Impact Assessment which, he tells
us, indicates that the Directive "will not have any major
impacts for the UK in terms of cost or in affecting our domestic
legislation".
EXPLANATORY MEMORANDUM OF 15 DECEMBER 2010
2.5 The Minister's Explanatory Memorandum reviews
the entirety of the proposal.
Policy implications
2.6 He says the Government supports the text
of the proposal, document (b), agreed at the JHA Council on 3
December. He explains that current domestic legislation in the
UK in this area goes beyond the majority of the requirements in
the proposal. In particular, legislative changes to the Sexual
Offences Act 2003 created similar sex offences (for England and
Wales) and there is similar legislation in Scotland and Northern
Ireland. The outcome of the recent Council negotiations on these
Articles means that the Government believes that UK law is already
compliant.
2.7 The Articles also cover issues such as support
for victims during criminal proceedings, extra-territorial jurisdiction,
the availability of intervention measures and blocking websites
containing images of child sexual abuse. The Government believes
that the UK policy and procedures in these areas already meet
the requirements set out in the Articles.
How this proposal fits with the Coalition agreement
2.8 Maximising security: the Directive
would seek to ensure that there is no advantage for sex offenders
to travel between Member States to commit offences against children
or to misuse the internet, e.g. by use of a webcam. The Government
supports EU level action to prevent child sex offenders from travelling
between Member States to commit offences.
2.9 Protecting civil liberties: the proposal
will ensure that there is a consistently high standard of protection
available to children from sexual exploitation and abuse across
the EU and appropriate support for victims during criminal investigations
and proceedings. The Government supports action to ensure that
children are subject to the same high level of protection and
support across Member States. Some of the offences, as they were
originally drafted, would have inadvertently captured lawful consensual
sexual activity between young people over the age of consent,
as well as between young people and adults aged 18 and over. The
Government has obtained a number of amendments to the Directive
to ensure the approach in the current Framework Decision, which
exempts such activity, is incorporated within the proposal.
2.10 Integrity of the criminal justice system:
the Articles in the Directive do not have any implication for
the integrity of the criminal justice system. The text reflects
the fact that victims are not party to proceedings in the UK.
Analysis of the Directive
2.11 Article 1 — Subject Matter.
This Article sets out the aim of the Directive explaining that
it seeks to establish minimum rules on the definition of offences
and sanctions in respect of the sexual abuse, sexual exploitation
of children, child pornography and the solicitation of children.
It also explains that the Directive aims to strengthen the prevention
of the crime and the protection of its victims. The Government
is content with this Article.
2.12 Article 2 — Definitions. Article
2 establishes the definitions for the purposes of the Directive
and has changed since the proposal was first published on 30 March.
The definition of 'pornographic performance' has also been amended
to clarify that it is only intended to capture "organised"
performances that are "aimed at an audience", this amendment
was made as Member States were concerned that pornographic performances
should not capture pornographic performances by children within
personal relationships. In comparison with the existing Framework
Decision, the Government further notes that definitions also now
appear in respect of 'child prostitution' (taken in the main from
the 2007 Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Abuse) and the 'age of consent'
for sexual activity, although it is left for Member States to
decide on the relevant age. The term "child pornography"
has also been defined. UK legislation meets the requirements of
these definitions and the Government is able to accept this Article.
2.13 Articles 3-6 — Sexual Abuse, Sexual
Exploitation, Child Pornography and Solicitation Offences.
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.
2.14 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.
2.15 Offences concerning sexual abuse, sexual
exploitation and child pornography are also found in the existing
Framework Decision, but the sphere of conduct covered by the proposed
Directive is wider. 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.
2.16 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
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.
2.17 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 UK 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.
2.18 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.
2.19 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.
2.20 Instigation, aiding and abetting attempt
and preparatory offences — Article 7. As with Framework
Decision 2004/68/JHA, 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. The Government can accept this amended
Article.
2.21 Consensual sexual activities between
peers — Article 8. Article 8 has been expanded from
the original proposal to expressly provide that it is for Member
States to decide whether certain specified offences govern consensual
sexual activities between peers who are close in age and degree
of development or maturity. It also now provides Member States
with the discretion to exclude from some of the offences acts
involving a child who is over the age of consent and adults as
long as no abuse or exploitation is involved. Recital 7 has been
amended to make clear that the Directive is not intended to govern
Member States' policies on consensual sexual activity in which
children may be involved and can be regarded as normal discovery
of sexuality in the course of human development.
2.22 The Government is now content that the revised
recital 7, and the exemptions contained in Articles 8 and 5 cover
the exclusions that were required in order to bring the criminal
law provisions of the Directive in line with domestic legislation.
2.23 Aggravating circumstances — Article
9. 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 and, although
Northern Ireland has no formal sentencing guidelines of its own,
these guidelines are taken into account where appropriate in Northern
Ireland sentencing decisions. Northern Ireland is considering
whether they wish to establish their own Sentencing Council. In
Scotland, sentencing is a matter for the judiciary who are able
to take into account the aggravating circumstances listed when
sentencing. Scotland is establishing a Sentencing Council which
may look into this area. 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.
2.24 Disqualification arising from convictions
— Article 10. Article 10, which concerns the availability
of information about individuals disqualified from working with
children, has been significantly amended. Subsections (2), (3)
and (4) were deleted as Member States could not agree on these
proposals or believed that the issue so important that separate
more detailed work would be required (mutual recognition rules
require more detail, including grounds for non-recognition and
protections for the individuals concerned). However, Article 10
still obliges all Member States to set up a disqualification regime
— we already have the Vetting and Barring Scheme in the
UK — and keep records of such disqualifications. It no longer
requires this information to be put into the criminal record.
The text permits Member States flexibility in where they record
this information. Article 10(1a) also now requires that Member
States ensure that employers are entitled to be informed about
convictions for child sex offences or disqualifications. In light
of the difficulties raised on this issue, the Government can agree
to these changes but notes that there is a continued need for
further work at EU level on this issue.
2.25 Legal persons — Articles 11 and
12. These Articles provide for the liability of legal persons
for the substantive offences in the Directive and for sanctions
in respect of legal persons. Similar Articles are contained in
current Framework Decision (Articles 6 and Article 7). These are
standard paragraphs for such an instrument and the Government
can accept this wording.
2.26 Victims — Articles 13. Article
13 has been amended to take into account changes to the earlier
criminal law Articles. It now states that Member States shall
provide for the possibility of not prosecuting child victims even
where such victims were involved in the offences in Articles 4(2),
(3), (4) and (5) (prostitution and pornographic performance offences)
and 5(7) (production of child pornography) where the victim was
compelled to commit the act concerned. In the UK there is prosecutorial
discretion in relation to all prosecution decisions including
those concerning defendants who are also victims. The Government
can now accept this Article.
2.27 Investigation and prosecution, reporting
of suspicions — Articles 14 and 15. Articles 14 and
15 require Member States to enable investigations and prosecutions
to take place, irrespective of whether the victim has made a complaint,
and also to ensure that suitable covert techniques and technology
to help identify victims is available. Member States are to ensure
that confidentiality obligations do not prevent professionals,
such as doctors and teachers, from reporting suspected offences.
Member States must also encourage such reporting under Article
15. The Government is content with these Articles.
2.28 Jurisdiction — Article 16.
Article 16 sets out requirements for states to establish jurisdiction
over the substantive offences in Articles 3-7. It has been amended
from the original proposal and now only requires Member States
to take extra-territorial jurisdiction where the offender is one
of its nationals (with no limitation for dual criminality) or
where the offence is committed in its territory. Article 16 now
reflects the approach taken in the 2004 Framework Decision and
Council of Europe Convention on Combating the Sexual Exploitation
of Children (2007). Member States can (as now) also take extra-territorial
jurisdiction to residents or cases where the victim is their national
should they wish to do so. The Government can support the text
of this Article, as it gives it the flexibility it wishes to retain.
2.29 Victims — Articles 17, 18 and 19.
Articles 17 and 18 require that Member States provide a range
of support and assistance to address the need of child victims
during and after criminal proceedings. The UK is compliant with
Article 17. Article 18 has been amended to clarify the victims'
rights concerned and no longer contains a reference to long-term
support. The Government can, therefore, support these Articles.
2.30 Article 19 sets out a list of procedures
Members States should follow when child victims are involved in
police investigations or court proceedings. Some are at the discretion
of the police or the judiciary, respectively. Others the UK complies
with already. Amendments have been made to the Article to reflect
the fact that in the common law system, victims are not party
to proceedings and therefore do not need legal representation
or a special representative. The Government is therefore content
with this Article.
2.31 Sex Tourism Article — 19a.
Article 19a is a new Article which outlines measures Member States
must take to help prevent sex tourism. The UK already has legislation
in place which makes illegal the arranging of sex offences against
children anywhere in the world. In addition, law enforcement and
the travel industry in the UK also work together to help highlight
concerns about sex tourism and discourage its growth. The Government
is content with this Article.
2.32 Intervention programmes or measures —
Article 19a and Article 20. Article 20 has been divided into
two separate Articles to cover preventative intervention measures
and programmes and intervention measures or programmes available
in the course of or after criminal proceedings. During negotiations
and through the introduction of Recital 10d, it has been clarified
that Member States have full flexibility to decide what sort of
intervention measures or programmes are necessary and the circumstances
in which offenders or potential offenders may have access to them.
Member States are not obliged to make these measures or programmes
available on request. The Government can support this approach.
2.33 Measures against websites containing
child pornography — Article 21. Article 21 has been
amended and now requires Member States to take the necessary measures
to remove web pages hosted in their territory that contain or
distribute child pornography. The Article also requires that Member
States ensure that it is possible to block access by internet
users in their territory to pages containing child pornography
(i.e. the Member States must not prohibit blocking). This blocking
should be subject to safeguards, notably users being informed
of the reason for blocking and an appeal process for content providers
where possible.
2.34 The UK internet industry operates a notice
and take down service for child sexual abuse websites hosted in
the UK. It also operates a voluntary blocking system which restricts
access to such websites hosted outside the UK for users in the
UK. Article 21 has been changed to allow for the various approaches
taken by Member States towards this policy and permits non-legislative
measures such as the industry self-regulation used in the UK.
The Government can now accept this article.
2.35 Repeal of Framework Decision 2004/68/JHA
— Article 22. Article 22 is a new Article which repeals
the Framework Decision the Directive is replacing. The UK Government
can accept the content of this Article.
Conclusion
2.36 We thank
the Minister for his letter and Explanatory Memorandum, and note
the improvements to the text he has highlighted. We mention in
passing that we think it right to leave the question of mutual
recognition of Member States' disqualification measures arising
from convictions for these offences to a separate instrument,
because we agree with the views of some Member States that the
issue of mutual recognition of disqualification measures is sufficiently
distinct and complex to require a separate proposal with a separate
legal base.
2.37 This proposal addresses an important
subject and introduces obligations on national enforcement authorities,
courts, and court services in the criminal justice field. We therefore
think it should be debated in European Committee B. The Minster
says in his Explanatory Memorandum that UK legislation and practice
in this area already meets the requirements in the instrument.[4]
We would be grateful to the Minister if in the debate he could
focus on the implementation obligations for each of the relevant
Articles in England and Wales and explain how they would be met
by existing national law and/or practice, including judicial practice.
2.38 We clear document (a) from scrutiny as
it has been superseded by document (b), the version of the proposal
agreed at the JHA Council in December. We recommend document (b)
for debate in European Committee B.
3 See headnote. Back
4
See paragraphs 2.6 and 2.7 of this chapter. Back
| 
