23 Sexual abuse and exploitation of children
and child pornography
| (31448)
8155/10
COM(10) 94
| 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
|
| Document originated | 29 March 2010
|
| Deposited in Parliament | 30 March 2010
|
| Department | Justice
|
| Basis of consideration | EMs of 13 April, 25 May and 19 July 2010; Minister's letter of 30 June 2010
|
| Previous Committee Report | None; but see (30519) 8150/09 HC 19-xvii (2008-09), chapter 4 (13 May 2009) and (30519) 8150/09 HC 19-xxiii (2008-09), chapter 4 (8 July 2009)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally important
|
| Committee's decision | Not cleared; further information awaited
|
Background: existing regional and international instruments
in this field
23.1 At EU level, Council Framework Decision on "combating
the sexual exploitation of children and child pornography"[96]
(the 2004 Framework Decision) requires approximation of Member
State legislation to criminalise the most serious forms of child
sexual exploitation and pornography; to extend domestic jurisdiction
extra-territorially for the prosecution of these crimes when committed
abroad by an offender who is a national of an EU Member State;
and to provide for a minimum of assistance to victims. The Framework
Decision came into force in 2006. The proposed draft Directive
would repeal and replace the current Framework Decision.
23.2 At Council of Europe level,[97]
a Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (the CoE Convention) was opened for signature
in October 2007. It has been ratified by two CoE Member States
but has not yet entered into force. It will do so once five States,
including three CoE Member States, have ratified it.
23.3 At UN level, the Optional Protocol to the Convention
on the Rights of the Child on the Sale of Children, Child Prostitution
and Child Pornography of 2000 sets the international standard.
Seven EU Member States have not ratified the Protocol.
Previous scrutiny
23.4 The draft Directive is based in part on the
2004 Framework Decision, in part on the Commission's 2009 proposal
for a Framework Decision on combating the sexual abuse, sexual
exploitation of children and child pornography.[98]
The proposal was not adopted by the Council before entry into
force of the Lisbon Treaty and so lapsed.
23.5 Our predecessors first reported on the Commission
proposal on 13 May 2009,[99]
when they recognised that the "importance of reinforcing
legislation for preventing this type of crime and for prosecuting
those who perpetrate it" and "that legislation combating
this type of crime must keep up with changing patterns of offending,
particularly in view of the increased scope for offending offered
by the Internet". But they asked why an EU proposal was necessary
when the CoE Convention had only recently been opened for signature;
whether provisions on investigative procedure and the needs of
child victims would endanger the independence of the police and
prosecution service; whether the then Government would agree to
the provision on extra-territorial jurisdiction based not only
on the nationality of the offender but also of the victim; and
whether the minimum periods of imprisonment for maximum penalties
set out in the proposal would not have the effect of fettering
the role of the judiciary in deciding sentences.
23.6 The then Parliamentary Under-Secretary of State
at the Ministry of Justice (Lord Bach) wrote on 1 June in response
to the previous Committee's Report.[100]
On the co-existence of this proposal for an EU Framework Decision
on combating the sexual abuse of children with the Council of
Europe Convention on the same subject, the Minister stated:
"The main difference of course with regard to
the Convention is that all EU Member States are obliged to give
effect to the Framework Decision. In respect of the particular
area of the sexual exploitation of children, and the growing misuse
of the Internet, which enables transnational sexual abuse of children,
we consider that the changes proposed in the Framework Decision
reinforce the drive to combat the sexual exploitation of children.
We would therefore expect the Framework Decision to further strengthen
the international legal framework against the sexual exploitation
of children but not detract from the CoE Convention."
23.7 Regarding the investigative independence of
the police and prosecution service the then Minister stated that
the Government shared the previous Committee's concerns that some
of the provisions were wide-ranging and prescriptive and believed
it was vital that EU legislation took account of different national
systems. The Government's concerns lay chiefly in relation to
Articles 14 and 15. For example, it thought that the right of
a child victim to legal aid was only appropriate where the child
victim was a party to legal proceedings; it was not appropriate
in the UK where the victim's interests were represented by the
prosecution. The Government intended to press for that provision
to be amended accordingly. The Minister said that the Government
would also seek to amend Article 15(3) so that the child's right
to give evidence without being present in court was subject to
judicial discretion.
23.8 The then Minister commented
that the provisions on extra-territorial jurisdiction were significantly
different to the 2004 Framework Decision, and the Council of Europe
Convention, both of which included greater flexibility for Member
States in respect of requirements to establish jurisdiction over
offences taking place outside their territory. The Minister said
that he wanted the flexibility of the existing instruments to
be maintained.
23.9 Turning to maximum penalties, the Minister stated
that he shared our predecessor's view of the importance of preserving
the judiciary's discretion in deciding sentences based on the
particular circumstances of each case. But because the proposal
only prescribed "minimum maximum" sentences, (i.e. "at
least 6/10/twelve years"), the UK could have a higher maximum
for the individual offence but not a lower one. As with any other
offence in the UK judges have discretion to impose any sentence
they think appropriate up to the maximum prescribed by legislation. This
provision, the Minister concluded, was therefore no different
from any other offence which carries a maximum sentence.
The current proposal
LEGAL BASE
23.10 The proposed legal base is Articles 82(2) and
83(1) of the Treaty on the Functioning of the European Union (TFEU).
23.11 Title V of the Treaty on the Functioning of
the European Union (TFEU) concerns the EU's area of "freedom,
security and justice". Within it Article 82(2) TFEU provides
that "to the extent necessary to facilitate mutual recognition
of judgments and judicial decisions and police and judicial cooperation
in criminal matters having a cross-border dimension" the
EU can establish "minimum rules" which must "take
into account the differences between the legal traditions and
systems of the Member States. But these minimum rules can only
apply to "(a) mutual admissibility of evidence between Member
States; (b) the rights of individuals in criminal procedure; (c)
the rights of victims of crime" and (d) any other aspects
of criminal procedure which the Council has identified in advance
by a decision".
23.12 Within Title V, Article 83(1) TFEU allows the
EU to establish minimum rules concerning "the definition
of criminal offences and sanctions in the areas of particularly
serious crime with a cross-border dimension resulting from the
nature or impact of such offences or from a special need to combat
them on a common basis". The areas of crime covered by Article
83(1) are: "terrorism; trafficking in human beings and sexual
exploitation of women and children, illicit drug trafficking,
illicit arms trafficking, money laundering, corruption, counterfeiting
of means of payment, computer crime and organised crime."
ARTICLE 1 — SUBJECT MATTER
23.13 This Article explains that the Directive seeks
to establish minimum rules on the definition of offences and sanctions
in respect
of the sexual exploitation of children, and that it also aims
to introduce common provisions to strengthen the prevention of
the crime and the protection of its victims.
ARTICLE 2 — DEFINITIONS
23.14 Article 2 sets
out the definitions for the purposes of the Directive. These repeat
those in the existing Framework Decision but also incorporate
additional definitions of "child pornography" and "child
prostitution" from the CoE Convention, and a new definition
of "pornographic performance". A "child" is
any person below the age of 18 years.
23.15 Child pornography is defined as:
- "any material that visually
depicts a child engaged in real or simulated sexually explicit
conduct; or
- "Any depiction of the sexual organs of a
child for primarily sexual purposes; or
- "any material that visually depicts any
person appearing to be a child engaged in real or simulated sexually
explicit conduct or any depiction of the sexual organs of any
person appearing to be a child, for primarily sexual purposes;
or
- "realistic images of a child engaged in
sexually explicit conduct or realistic images of the sexual organs
of a child, regardless of the actual existence of such child,
for primarily sexual purposes".
23.16 Child prostitution
is defined as the "use of a child for sexual activities where
money or any other form of remuneration or consideration is given
or promised as payment in exchange for the child engaging in sexual
activities, regardless of whether this payment, promise or consideration
is made to the child or to a third person".
23.17 Pornographic performance is defined
as "the live exhibition, including by means of information
and communication technology:
- of a child engaged in real
or simulated sexually explicit conduct; or
- of the sexual organs of a child for primarily
sexual purposes".
ARTICLES 3-6 — OFFENCES
CONCERNING SEXUAL ABUSE, SEXUAL EXPLOITATION, CHILD PORNOGRAPHY
AND SOLICITATION OF CHILDREN FOR SEXUAL PURPOSES
23.18 Articles 3 to
6 lay down minimum rules on conduct which would constitute a criminal
offence; they also set the minimum level for maximum penalties
for each offence (minimum maximum penalties). The sphere of conduct
covered by the proposed Directive is wider than that of the current
Framework Decision, to take account of new forms of offences,
particularly in relation to information technology, and the proposed
minimum maximum penalties are generally significantly higher in
order to make them "effective, proportionate and persuasive",
according to the Commission's explanatory memorandum.
Sexual abuse
23.19 The proposed rules on conduct and minimum maximum
penalties for the sexual abuse of children are as follows:
- "Causing, for sexual purposes,
a child who has not reached the age of sexual consent under national
law to witness sexual abuse or sexual activities, even without
having to participate, shall be punishable by a maximum term of
imprisonment of at least two years.
- "Engaging in sexual activities with a child
who has not reached the age of sexual consent under national law
shall be punishable by a maximum term of imprisonment of at least
five years.
- "Engaging in sexual activities with a child,
where:
- (i) abuse is made of a recognised
position of trust, authority or influence over the child shall
be punishable by a maximum term of imprisonment of at least eight
years; or
- (ii) abuse is made of a particularly vulnerable
situation of the child, notably because of a mental or physical
disability or a situation of dependence shall be punishable by
a maximum term of imprisonment of at least eight years; or
- (iii) use is made of coercion, force or threats
shall be punishable by a maximum term of imprisonment of at least
ten years.
- "Coercing a child into
sexual activities with a third party shall be punishable by a
maximum term of imprisonment of at least ten years".
Sexual exploitation
23.20 The proposed rules on conduct and minimum maximum
penalties for the sexual exploitation of children are as follows:
- "Causing a child to participate
in pornographic performances shall be punishable by a maximum
term of imprisonment of at least two years.
- "Profiting from or otherwise exploiting
a child participating in pornographic performances shall be punishable
by a maximum term of imprisonment of at least two years.
- "Knowingly attending pornographic performances
involving the participation of children shall be punishable by
a maximum term of imprisonment of at least two years.
- "Recruiting a child to participate in pornographic
performances shall be punishable by a maximum term of imprisonment
of at least five years.
- "Causing a child to participate in child
prostitution shall be punishable by a maximum term of imprisonment
of at least five years.
- "Profiting from or otherwise exploiting
a child participating in child prostitution shall be punishable
by a maximum term of imprisonment of at least five years.
- "Engaging in sexual activities with a child,
where recourse is made to child prostitution shall be punishable
by a maximum term of imprisonment of at least five years.
- "Coercing a child to participate in pornographic
performances shall be punishable by a maximum term of imprisonment
of at least eight years.
- "Recruiting a child to participate in child
prostitution shall be punishable by a maximum term of imprisonment
of at least eight years.
- "Coercing a child into child prostitution
shall be punishable by a maximum term of imprisonment of at least
ten years".
Child pornography
23.21 The proposed rules on conduct and minimum maximum
penalties for child pornography are as follows:
- "Acquisition or possession
of child pornography shall be punishable by a maximum term of
imprisonment of at least one year.
- "Knowingly obtaining access, by means of
information and communication technology, to child pornography
shall be punishable by a maximum term of imprisonment of at least
one year.
- "Distribution, dissemination or transmission
of child pornography shall be punishable by a maximum term of
imprisonment of at least two years.
- "Offering, supplying or making available
child pornography shall be punishable by a maximum term of imprisonment
of at least two years.
- "Production of child pornography shall be
punishable by a maximum term of imprisonment of at least five
years".
Solicitation of children
23.22 The proposed rules on conduct and minimum maximum
penalties for the solicitation of children for sexual purposes
are as follows:
- "The proposal, by means
of information and communication technology, by an adult to meet
a child who has not reached the age of sexual consent under national
law, for the purpose of committing any of the offences referred
to in Articles 3 (3) and Article 5 (6), where this proposal has
been followed by material acts leading to such a meeting, shall
be punishable by a maximum term of imprisonment of at least two
years".
ARTICLE 7 — INSTIGATION, AIDING AND ABETTING,
ATTEMPT AND PREPARATORY OFFENCES
23.23 As with the 2004 Framework Decision, the proposed
Directive includes provisions in respect of instigation, aiding
and abetting and attempting the offences contained in Articles
3 to 6. Article 7 also includes new provisions specifically covering
dissemination of materials advertising the opportunity to commit
such offences and organising travel arrangements with the purpose
of committing such offences.
ARTICLE 8 — CONSENSUAL SEXUAL ACTIVITIES BETWEEN
PEERS
23.24 Article 8 expressly provides that certain specified
offences do not govern consensual sexual activities between children
or between children and young adults who are close in age and
degree of development or maturity insofar as no abuse is involved.
Recital 7 also makes clear that the Directive is not intended
to govern Member State's 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.
ARTICLE 9 — AGGRAVATING CIRCUMSTANCES
23.25 Article 9 sets out a range of circumstances
which should be considered as aggravating circumstances for the
offences in Articles 3-6, if they do not already form part of
the elements of the original offences. An aggravating circumstance
is any of the following: the child has not reached the age of
sexual consent under national law; the offence was committed against
a child in a particularly vulnerable situation, notably because
of a mental or physical disability or a situation of dependence;
the offence was committed by a member of the family, a person
cohabiting with the child or a person having abused their authority;
the offence was committed by several people acting together; the
offences are committed within the framework of a criminal organisation
within the meaning of Framework Decision on the fight against
organised crime;[101]
the perpetrator has previously been convicted of offences of the
same nature; the offence endangered the life of the child; the
offence involved serious violence or caused serious harm to the
child.
23.26 Article 9(2) provides that if an aggravating
circumstance is present "Member States shall take the necessary
measures to ensure that the offences referred to in Articles 3
to 6 are punishable by effective, proportionate and dissuasive
penalties which are more severe penalties than those foreseen
in Articles 3 to 6 for the basic offence".
ARTICLE 10 — DISQUALIFICATION ARISING FROM
CONVICTIONS AND EXCHANGE OF INFORMATION
23.27 Article 10 provides
for Member States temporarily or permanently to exclude people
convicted of the offences in Articles 3 to Article 6 from situations
which involve regular contact with children, after a risk assessment
has established that the person represents a danger and there
is a risk of repetition. Article 10(3) facilitates the exchange
of information between Member States about disqualification from
activities with children. Article 10(4) requires measures to ensure
recognition of the disqualification measures by each Member State.
ARTICLES 11 AND 12 — LEGAL PERSONS
23.28 These articles outline liability of companies
("legal persons") for the commission of these crimes.
Similar articles are contained in the existing Framework Decision
(Articles 6 and Article 7).
ARTICLES 13, 17, 18 AND 19 — VICTIMS
23.29 Articles 13 and 17, 18 and 19
represent a much greater
focus than in the existing Framework Decision on the needs of
child victims. Article 13 states that Member States shall provide
for the possibility of not prosecuting or imposing penalties on
child victims even where such victims were involved in the offences
in Articles 4 and 5(4) and (6) (sexual exploitation offences and
the distribution, dissemination, transmission and production of
child pornography). 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. Article
19 sets out a list of procedures Members States should follow
when child victims are involved in police investigations or court
proceedings. It stipulates that a special representative for the
child must be appointed when a parent cannot be present; that
child victims have immediate access to free legal counselling
and free legal representation; that videotaped interviews may
be used as evidence in a criminal court, that a judge may order
court hearings to be in camera, and that the child victim
may be heard in the court room without being physically present
(for example by video-link).
ARTICLES 14 AND 15 — INVESTIGATION AND PROSECUTION,
REPORTING OF SUSPICION
23.30 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.
ARTICLE 16 — JURISDICTION
23.31 Article 16 sets out requirements for States
to establish jurisdiction over prosecutions for offences covered
by Articles 3 to 7. As with the 2004 Framework Decision, it extends
the extra-territorial jurisdiction to prosecute these crimes to
the nationality or habitual residence of the offender or where
the offence is committed for the benefit of a company established
in the territory of a Member State. In addition, under this proposal
Member States may also extend extra-territorial jurisdiction to
the nationality or habitual residence of the victim. For internet
offences, the Article stipulates that an offence is committed
in the territory of a Member State where the information or communication
technology is accessed.
ARTICLE 20 — INTERVENTION PROGRAMMES OR MEASURES
23.32 Article 20 mandates
Member States to ensure that persons convicted of the offences
set out in Articles 3 to 6 are made subject to an assessment process
to establish what danger they present, their risk of reoffending
and the subsequent need for an intervention (treatment) programme.
The Article seeks to ensure that all Member States have intervention
programmes available for people charged or convicted of sexual
offences against children, with a view to preventing and minimising
the risks of repeated offences of a sexual nature against children.
Intervention programmes must also be adapted to meet the specific
developmental needs of child offenders. Offenders and suspected
offenders must, where appropriate and in the light of the assessment
made, be fully informed of the reasons for the intervention programme,
consent to participate in it, and have the right to refuse it
in full knowledge of the consequences. The Article further stipulates
when both offenders and potential offenders should have access
to the programme, and that this should be achieved without prejudice
to a fair trial and the presumption of innocence.
ARTICLE 21 — BLOCKING OF WEBSITES CONTAINING
CHILD PORNOGRAPHY
23.33 Article 21 is
a new Article which requires Member States to take the necessary
measures to enable judicial or police authorities to block access
by internet users to internet pages containing or disseminating
child pornography. The Article also states that blocking should
be subject to safeguards, notably users being informed of the
reason for blocking and an appeal process for content providers
where possible.
MISCELLANEOUS
23.34 Articles 22 and 24 are procedural, repealing
the existing Framework Decision and requiring implementation of
the new Framework Decision within two years of its adoption.
The Government's view
EXPLANATORY MEMORANDUM OF 13 APRIL
23.35 During purdah, the then Parliamentary Under-Secretary
at the Ministry of Justice (Lord Bach) deposited a factual Explanatory
Memorandum outlining the details of the Commission's proposal,
which was dated 13 April.
THE MINISTER'S LETTER OF 30 JUNE
23.36 The Lord Chancellor and Secretary of State
for Justice (Mr Kenneth Clarke) wrote on 30 June to say that the
Government had opted into the proposed Directive on 28 June, for
the reasons set out in the Explanatory Memorandum.
EXPLANATORY MEMORANDUMS OF 25 MAY AND 19 JULY
23.37 On 25 May the Minister deposited an Explanatory
Memorandum outlining the new Government's policy on the proposal;
this was supplemented by an Explanatory Memorandum dated 19 July.
23.38 In sum, the Minister is broadly supportive
of the proposal subject to certain concerns being met in the Council
working group negotiations.
23.39 As to whether the proposal complies with the
principle of subsidiarity the Minister comments:
"The exploitation and abuse of children is an
international issue. This is evident in the transnational nature
of 'child pornography' (images of child sexual abuse, particularly
on the internet) and 'sex tourism' (sex offenders who travel).
The EU acted in 2004 to set common minimum standards for many
offences in this area, in part to avoid forum shopping by offenders.
The Commission do not consider that unilateral action on the part
of Member States can effectively tackle the new issues that are
addressed by this Directive.
The Government agrees that a coordinated response
and consistency throughout the EU in combating child sexual exploitation
and abuse is a clear benefit of the proposal".
23.40 The Government considers that the proposal
complies with fundamental rights except in relation to the following
Articles:
- Article 8 of the draft Directive
inadvertently criminalises lawful sexual activity between people
over the age of consent. Were it to remain in the text, this would
be contrary to right to private life under Article 8 ECHR. However
there are exceptions for children over the age of sexual consent
in the existing Framework Decision on child sexual exploitation
and abuse and the Government will seek to ensure that this approach
is incorporated within the final text;
- the rules on sex offender treatment programmes
in Article 20 require that they be available not only to convicted
offenders, but also before a person is convicted, and that this
should be achieved without prejudice to a fair trial and the presumption
of innocence. The Government will seek clarification to understand
how this will be possible in practice; and
- the rules on blocking websites in Article 21
raise issues about the right to freedom of expression under Article
10 ECHR, which applies both to people providing content and (with
some limitations) to people seeking to access it. The Government
is considering whether the appeal mechanism for providers of internet
material, in cases where their websites are put on a blocking
list, is sufficient to deal with, for example, cases where the
legality of the content may be in dispute.
23.41 As for overall policy implications, the Minister
says that the Government supports the initiative, and welcomes
the inclusion of wider policy aims within the instrument. He tells
us that current domestic legislation in this area goes beyond
"the majority" of the requirements in the proposal.
In particular legislative changes to the Sexual Offences Act 2003
create similar sex offences (for England and Wales) and there
is similar legislation in Scotland and Northern Ireland. The UK's
sex offender notification requirements, offender management programmes
and special measures for witnesses at trial are all part of UK
law. But depending on the outcome of negotiations, it is possible
that some legislative amendments will be required. He explains
that many of the provisions on supporting victims and witnesses,
whilst not set out in primary legislation, are also part of current
practice and guidance issued by the relevant law enforcement and
criminal justice agencies. The current view of the Government
is that victim care and support requirements should not be mandated
by legislation and as such a more flexible approach should be
considered within the proposal. The Minister then comments on
each Article in turn.
23.42 Definitions (Article 2): The
Minister states that UK legislation is "generally compliant"
with these definitions.
23.43 Offences (Articles 3 — 7):
The Minister comments as an overview that the conduct covered
in Articles 3 to 7 is wider than in the existing Framework Decision.
For example, the provisions on aiding and abetting have been expanded
to include preparatory offences so that organising travel arrangements
with the purpose of sexual tourism are covered. On penalties the
Minister notes that the Articles also set out minimum maximum
penalties for each of the offences. He comments that this approach
differs from the current Framework Decision which allows for a
range of minimum maximum sentences for particular types of offences,
whereas the proposed Directive specifies a required minimum maximum
sentence for each offence.
23.44 Turning to the detail he tells us that the
Government will seek amendments to some of the sexual abuse offences
in Article 3 to ensure that they are compatible with domestic
legislation; on Article 4 that the UK is compliant with the child
prostitution offences but may not comply with the pornographic
performance offences: the Government will seek further clarification
of the conduct to be captured; and on Article 5 on child pornography
that the UK is "largely compliant". Article 6, solicitation
of children for sexual purposes, the Minister says is comparable
to the offence (in the law of England and Wales) of 'arranging
or facilitating the commission of a child sex offence' and 'meeting
a child following sexual grooming', although the Minister tells
us that 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 will seek clarification on the limited use of information
and communication technology.
23.45 Consensual sexual activities between
peers (Article 8): The Minister repeats the concerns set
out in paragraph 40 above.
23.46 Disqualification arising from convictions
(Article 10): The Minister states that the Government
supports these requirements, and wants to be able to request this
information about foreign offenders, to protect children in the
UK if offenders come to the UK. The Government does not, however,
support Article 10(4), which requires the automatic recognition
and enforcement of the disqualification measures by each Member
State. The UK has a sophisticated 'Vetting and Barring' scheme
for individuals who work with children (which is currently being
reviewed) and already makes its own assessment of the risk to
children posed by individuals who have been convicted of sex offences
in other countries, however it does not hold barring information
on the criminal record. The Government will seek a more flexible
approach to the holding of disqualification information and the
mutual recognition rules for disqualifications.
23.47 Victims (Articles 13, 17 and 18):
The Minister says that the UK is compliant with Articles 13, 17
and 18 although in Article 18 it intends to seek clarification
of the duty to provide support for child victims for "an
appropriate time after criminal proceedings."
23.48 Protection of child victims in criminal
investigations and proceedings (Article 19): The Minister
says that some of the procedures set out in this Article are at
the discretion of the police or the judiciary; others the UK complies
with already. But two raise concerns: the use, in narrow circumstances,
of a special representative (where the parents are absent or have
a conflict of interest) and access to free legal representation,
including for the purpose of claiming compensation, for child
victims. He explains that victims do not receive legal aid in
the UK because they are not party to proceedings, and compensation
is provided either by offenders (and is requested by the CPS during
the trial) or by the Criminal Injuries Compensation Authority,
which provides assistance to applicants. Special representatives
are appointed at the discretion of the police and the judiciary
(it is not mandatory as currently envisaged in the Article) which
assists in enabling the support to be tailored to the needs of
individual victims. The Government will push strongly for an amendment
which takes account of the fact that victims are not party to
criminal proceedings in all legal systems. It is also of the view
that special representatives should not be mandated by legislation
as the needs and wishes of the victim should be respected; it
will seek a more flexible approach in the
text but will explore the implications of primary legislation
on a permissive basis and report back to the Committee.
23.49 Investigation and prosecution, reporting
of suspicions (Articles 14 and 15): The Minister reports
that the UK already complies with these provisions.
23.50 Jurisdiction (Article 16): The
Minister reports that the UK can already take extra-territorial
jurisdiction for UK nationals who commit sexual offences against
children abroad, and also for British residents but only where
dual criminality applies. The Government will seek to have the
approach from the 2004 Framework Decision inserted within the
text, which limits extra-territorial jurisdiction to the nationality
of the offender or to offences committed for the benefit of a
company in the Member State asserting jurisdiction.
23.51 Intervention programmes or measures (Article
20): The Minister says the Government will seek clarification
on the scope of this Article and seek to limit it to those cases
where it necessary and appropriate.
23.52 Blocking of websites containing child
pornography (Article 21): The Minister explains that the
UK internet industry operates a notice and take down service for
child sexual abuse websites hosted in the UK. It also operates
a blocking system which restricts access to such websites hosted
outside the UK for users in the UK. The Government supports blocking
of websites which hosts this type of illegal content but will
seek a more flexible approach that recognises the limits on the
Government's powers to achieve this result. The Directive should
not require something of Member States that is not technically
feasible.
Our assessment
23.53 We recognise the importance of having effective
legislation in place to ensure that those who commit such serious
crimes against children can be prosecuted and punished in every
Member States of the EU. And we see the deterrent effect this
would have. But we think that in laying down additional detailed
common rules on the prevention of these crimes and the protection
of their victims, both of which are matters currently dealt with
at national level in the UK and no doubt other Member States,
the Commission has 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 TFEU.
23.54 So we agree with the Minister when he says
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 agree with him that proper account
must be taken in Brussels of the characteristics of the common
law system, as Article 82(2) TFEU requires. But we have additional
concerns, none of which are addressed by the Minister, and these
are set out below.
LEGAL BASE
23.55 We doubt 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 do
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 would be grateful to know if the Minister shares our views.
23.56 We note 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 share the Minister's
reticence about agreeing to be bound by these rules, but also
ask him to say whether he thinks this mutual recognition (as opposed
to approximation) provision should be supported by the citation
of Article 82(1)(a) as a legal base.
23.57 We ask 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).
MINIMUM PENALTIES
23.58 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
have a concern, however, is 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 share the Minister's concerns that this will fetter
judicial discretion in the passing of criminal sentences, we would
also like to know whether he thinks the EU has 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 does think the EU has this power, we ask 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).
JURISDICTION
23.59 The Minister
says at paragraph 44 of his Explanatory Memorandum of 19 July
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 note,
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 would be grateful if the Minister could confirm that
he was mistaken in his Explanatory Memorandum 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. We would also be grateful if he could say
whether there are any circumstances in which the Government would
consider extending jurisdiction on this basis when implementing
the Directive, and whether there is a precedent for doing so in
existing domestic criminal legislation.
Conclusion
23.60 For ease
of reference, we have summarised our views on this complex proposal
above, under the heading "our assessment", rather than
in the "conclusion." We would be grateful if the Minister
would answer the questions we have raised above.
23.61 In addition, we note that for several
of the Articles, the Minister says that the UK is already "largely
compliant". It is difficult to know exactly what this means,
and we look forward to sight of the full regulatory impact assessment
when it is completed.
23.62 Pending the Minister's replies, we
shall keep the proposal under scrutiny.
96 2004/68/JHA. Back
97
The Council of Europe comprises 47 Member States, including the
27 Member States of the European Union. Back
98
COM (2009) 135 final/2. Back
99
(30519) 8150/09 HC 19-xvii (2008-09), chapter 4 (13 May 2009). Back
100
Reported at: (30519) 8150/09 HC 19-xxiii (2008-09), chapter 4
(8 July 2009). Back
101
2008/841/JHA Back
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