Documents considered by the Committee on 2 February 2011 - European Scrutiny Committee Contents

2   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
Documents originated(a) 29 March 2010

(b) —

Deposited in Parliament(a) 30 March 2010

(b) 13 December 2010

Basis of considerationMinister'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 CouncilNo date set
Committee's assessmentLegally important
Committee's decision(a) Cleared

(b) For debate in European Committee B


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


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".


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.


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

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