Select Committee on European Scrutiny Seventh Report


COMBATING TRAFFICKING IN HUMAN BEINGS, THE SEXUAL EXPLOITATION OF CHILDREN AND CHILD PORNOGRAPHY


(22042)
5206/01
COM(00) 854

Commission Communication: combating trafficking in
human beings and combating the sexual exploitation of
children and child pornography:

—  Draft Framework Decision on combating trafficking in
human beings; and

—  Draft Framework Decision on combating the sexual
exploitation of children and child pornography.


Legal base: Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
Document originated: 21 December 2000
Forwarded to the Council: 27 December 2000
Deposited in Parliament: 24 January 2001
Department: Home Office
Basis of consideration: EM of 12 February 2001
Previous Committee Report: None
To be discussed in Council: 15 - 16 March 2001
Committee's assessment: Politically important
Committee's decision: Not cleared; progress report requested

The document

  11.1  The document comprises a Communication and two draft Framework Decisions. We report on each separately.

The Commission Communication

  11.2  The Communication briefly describes EU efforts to combat trafficking in human beings and the sexual exploitation of children. It makes particular mention of the DAPHNE[35] and STOP[36] programmes. It also cites the Joint Action[37] in this area, adopted in 1997, whereby Member States agreed to review their relevant criminal law in order to ensure the criminalisation of certain behaviours and to encourage judicial co-operation. In the Commission's view, the Joint Action has not been successful, largely because of the lack of consistent definitions, prosecution policies and sanctions across the Member States. (It will be repealed if the draft Framework Decisions are adopted.)

  11.3  Against this background, the Commission introduces its two draft Framework Decisions. In relation to the first, it emphasises that the proposal covers trafficking in human beings for the purposes both of sexual exploitation and of labour exploitation. It also emphasises that the proposal complements French initiatives concerning the facilitation of illegal immigration,[38] since these are related to the smuggling of migrants, which is not necessarily exploitative.

  11.4  The Communication states that its second draft Framework Decision is intended to improve the Joint Action by ensuring that there are no safe havens in the EU for sex offenders, and by tackling the issue of child pornography on the Internet.

Draft Framework Decision on combating trafficking in human beings

  11.5  This draft Framework Decision is concerned with the approximation of the criminal laws of Member States, including penalties, concerning trafficking in human beings. Such trafficking is to be considered punishable if it involves an element of force, threats, deception, coercion or undue influence. The proposal includes provisions for the punishment of related activities such as instigation, aiding and abetting, and attempt. It lays down a maximum penalty of not less than six years imprisonment which can be increased to a penalty of not less than ten years if the offence involves particular ruthlessness, generates substantial proceeds, or is committed within the framework of a criminal organisation.

  11.6  The proposal also provides for the offences to apply to legal persons (companies) as well as to individuals. Far-reaching provisions on jurisdiction and on extradition have been included in recognition of the international nature of many trafficking activities.

Draft Framework Decision on combating the sexual exploitation of children and child pornography

  11.7  The second Framework Decision is similar in structure and scope to the first. It requires Member States to ensure that sexual exploitation of children — covering involvement with the prostitution of a child, and sexual activity with a child where reward, coercion threats or influence are employed — and involvement with the production, distribution, sale, or possession of child pornography are punishable. The proposal includes provisions for the punishment of related activities such as instigation, aiding and abetting, and attempt. A child is defined in this proposal as someone under eighteen years of age.

  11.8  The draft measure lays down a maximum penalty of not less than four years imprisonment for all the offences except possession of child pornography (where the minimum maximum penalty is one year). Depending on the precise nature of the offence, the minimum maximum penalty can be increased to a penalty of not less than eight years, if aggravating circumstances are involved. Besides those cited in the trafficking measure, examples of such circumstances include the age of the child (if he or she is below ten years old) and, in the case of child pornography, the depiction of a child being exposed to violence or force.

  11.9  The proposal also provides for the offences to apply to legal persons (companies) as well as to individuals, and for sanctions. Far-reaching provisions on jurisdiction and on extradition have been included in recognition of the international nature of many of the activities.

The Government's view

  11.10  In her Explanatory Memorandum, the Minister of State at the Home Office (Mrs Barbara Roche) concentrates on the two draft Framework Decisions, both of which she supports in principle. She points out that the Government is currently reviewing the framework of sexual offences in England and Wales and that the report of the Sex Offences Review, Setting the Boundaries, is out to public consultation.

Draft Framework Decision on combating trafficking in human beings

  11.11  In relation to trafficking in human beings for labour exploitation, the Minister tells us:

    "Article 1 of the proposal relies on national labour standards governing working conditions, salaries and health and safety...However, Article 1 is currently very uncertain in meaning as it is not clear what behaviour under this Article is intended to be criminalised. This is important because 'labour standards' in the UK are predominantly enforced through the civil rather than the criminal law. It will therefore be necessary to clarify the drafting of the Article to ensure it meets these concerns."

  11.12  The Minister emphasises the Government's support for closer approximation of offences and penalties for trafficking in human beings for sexual exploitation. She tells us that one of the recommendations in Setting the Boundaries proposes a specific trafficking offence.

  11.13  Any such new offence or offences would require primary legislation.

Draft Framework Decision on combating the sexual exploitation of children and child pornography

  11.14  The Minister welcomes the Commission's initiative. She points out that the Government will need to consider the draft Framework Decision in the light of the responses to Setting the Boundaries; adoption of the recommendations in that document would meet some of the requirements in the proposal.

  11.15  She continues:

    "The age of consent in Great Britain is 16 and, in Northern Ireland, 17. The activities listed in Article 2 of the Instrument ['offences concerning the sexual exploitation of children'] are thus all currently illegal in England and Wales and Scotland in relation to those under the age of 16 and under 17 in relation to Northern Ireland. Much of the activity covered by Article 2(a) and (b)(i) in relation to those aged 16 and 17 is also currently illegal. However, the provisions outlined in sub-paragraph 2(b)(iii) ['use is made of authority or influence over the child's vulnerability'] are very open-ended and would not currently fall within the UK criminal law. We will therefore seek to clarify the intention behind this provision with a view to adding some precision to the current drafting and to explore the appropriate age level for the various provisions. Prostitution is not illegal in the United Kingdom (though it is illegal to solicit for prostitution). It is not, therefore, illegal to have sex with a 16 or 17 year old for a financial inducement. However, this is one of the areas in which the review of sex offences, Setting the Boundaries, makes recommendations for a new offence of sexual exploitation of a child.

    "In the United Kingdom, there is a complete prohibition on child pornography. Under the Protection of Children Act 1978, it is a criminal offence to take, permit to be taken, distribute, show, advertise or possess for distribution any indecent photograph or pseudo photograph of a child under the age of 16. The legislation does not define indecent and it is left to the courts to interpret its meaning. The Government has recently raised the maximum penalty for this offence in England and Wales to ten years imprisonment and an unlimited fine in the Criminal Justice and Court Services Act 2000. The maximum penalty for the simple possession of child pornography (section 160 Criminal Justice Act 1988) was raised from 6 months to five years in the same Act. The same increases are proposed for the equivalent Scottish provisions.

    "UK law on pornography is drafted in terms of obscenity, for which the threshold used by the courts is very high, and indecent photographs of children under 16, for which the threshold is much lower and which, in effect, covers all depictions of sexual activity with those under 16. (It is left to the courts to define what may be 'obscene', or 'indecent' in any particular case). The Government would therefore need to look very carefully at the implications of these proposals in respect of 16 and 17 year olds. This is an area which will need to be explored carefully in negotiations. Any changes to the law on these points would require primary legislation.

    "The activities listed in Paragraph One of Article 3 ['offences concerning child pornography'] are already punishable by virtue of the Protection of Children Act 1978 and the Civic Government (Scotland) Act 1982 in relation to those under the age of 16. However, the same considerations as in the previous paragraph apply in respect of the definition of a child in Article 1(a). Again, the issues raised will be addressed in negotiation. Any changes to our law would require primary legislation.

    "The recommendations of Setting the Boundaries are relevant in this context since they relate, among other things, to new offences dealing with the sexual exploitation of children. These include new offences which would make it unlawful to use a child under 18 in the making of pornography or in prostitution. [Consideration of these recommendations] will take place once the consultation period has closed (1 March). Thereafter any changes to the law will require primary legislation."

General

  11.16  The Minister also draws our attention to two issues which relate to both proposals. She says:

    "There are Articles in both of these Instruments in which it is proposed that aggravating factors should lead to a different sentencing tariff. While in the laws of the United Kingdom such factors can be taken into account when sentencing, it would not be possible to have different tariffs for the same offence occurring in different circumstances. However, this is not an issue in respect of England and Wales and Scotland since the maxima proposed all fall within those which already exist or are proposed by these Instruments (other than in respect of the definition of a child, where the difficulties stem from the age, rather than any feature of the proposed offence or penalty).

    "There are Articles in both of these Instruments which relate to the victims of trafficking and child sexual exploitation... Support for victims generally has been defined in greater detail in a draft Framework Decision[39] which describes (in 18 Articles) the services and other entitlements available to all victims of crime and which would include these particular groups of victims also. Subject to the Scrutiny Committee being satisfied about its legal base — on which advice is currently being prepared — that Framework Decision will be adopted later this year. During the course of policy negotiations, we have ensured the inclusion of a form of words concerning the standing of victims in criminal proceedings which satisfies both the common law jurisdictions of the UK, where a victim does not have a formal status, and the civil law jurisdictions of most other Member States. As the need for the victim to be given a legal status is again set out here, the Government believes that both this and all other aspects of the victims' Framework Decision, if adopted, should be cross referred to these new draft Framework Decisions."

  11.17  The Minister points out that much of the content in the proposals is covered in Setting the Boundaries, which is currently out to public consultation. She does, however, also intend to consult the Confederation of British Industry and the Small Business Service, as well as End Child Prostitution, Pornography and Trafficking, and Anti-Slavery International. She tells us that the proposals are to be discussed at the March JHA Council, with a view to political agreement being reached at the Council in May.

Conclusion

  11.18  We note the Government's general welcome for these proposals, and support its intention to consider the detail in the light of the response to the recommendations in Setting the Boundaries.

  11.19  We ask for a progress report to cover the following:

    1  the outcome of discussions at the March Justice and Home Affairs Council;

    2  the tenor of the responses to Setting the Boundaries and the effect on the Government's approach to these proposals; and

    3  progress in negotiations on the clarification of Article 1 in the draft Framework Decision on trafficking, and other significant issues.

  11.20  The report should be with us in good time before the May Council. Meanwhile, we do not clear the document.



35  Programme of measures against violence towards children, young persons and women. Back

36  Incentive and exchange programme for persons responsible for combating trade in human beings and the sexual exploitation of children Back

37  OJ No. L. 063, 4.3.1997, p.1. Back

38   (21529) 10675/00; see HC 23-xxxi (1999-2000), paragraph 6 ( 29 November 2000) and (21530) 10711/00; HC 23-xxxi (1999-2000), paragraph 6 ( 29 November 2000).  Back

39   See (21732) 11855/00; HC 28-i (2000-01), paragraph 2 (13 December 2000). Back


 
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