Select Committee on European Scrutiny Fourth Report




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

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

Legal base: Articles 31(e) and 34 (2)(b) EU; consultation; unanimity
Deposited in Parliament: (a) 1 May 2001
(b) 13 July 2001
Department: Home Office
Basis of consideration: EM of 11 October 2001
Previous Committee Report: None; but see (22042) 5206/01: HC 28-vii (2000-01), paragraph 11 (28 February 2001) and HC 152-iii (2001-02), paragraph 8 (31 October 2001)
To be discussed in Council: 6-7 December 2001
Committee's assessment: Politically important
Committee's decision: (a) Cleared
(b) Not cleared; further information requested


7.1  The previous Committee considered an earlier version of this proposal in February, as part of a larger document which comprised two Framework Decisions, one related to trafficking in human beings and the other to the sexual exploitation of children and child pornography, and a Communication which set them in context.[29] The two Framework Decisions are now being treated separately. Last week, we cleared the Framework Decision related to trafficking in human beings.[30] At the same time, we cleared the earlier document (22042), since the previous Committee's questions on it had been satisfactorily answered.

The documents and the Government's view

7.2  The documents are amended versions of the text, produced following meetings of the Working Party on Substantive Criminal Law. We concentrate on document (b), as the latest deposited version.

7.3  In his Explanatory Memorandum of 11 October, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) details amendments to the previous texts and tells us that the Government considers them all to be improvements. There are several changes to the definition of child pornography in Article 1 (b), mostly relating to computer-generated or computer-altered images of children. The Minister comments:

    "The Government has taken the view that the inclusion of such images is important so as not to reduce the possibility of prosecution due to a necessity to prove to the criminal standard that a child was abused."

7.4  The Minister tells us that the Government agrees with the exclusion from liability for prosecution (added to Article 3) of persons over the age of sexual consent (but under 18) who produce images of their own bodies for their personal use.

7.5  Article 9 has been replaced by three new paragraphs, along the same lines as those in the Framework Decision on trafficking in human beings.[31] The first paragraph provides that a prosecution or investigation of a trafficking case must not depend on the victim's "report or accusation". The second and third read across to the parallel Framework Decision relating to the standing of victims in criminal proceedings[32] in providing that child victims of trafficking will be considered particularly vulnerable in the terms of that Framework Decision and that, where possible, appropriate assistance will be provided for the victim's family. The Minister tells us that the Government believes these paragraphs appropriately balance the rights of both victims and defendants.

7.6  The Minister comments generally on the policy implications for the UK as follows:

    "The Government is keen to do all it can to combat the sexual exploitation of children and child pornography. Some amendment to the existing laws on indecency will be required in order to implement the Framework Decision as currently drafted. Specifically, the definition of child pornography will require amendment of the provisions in the Protection of Children Act 1978 relating to the age of a child. In addition, amendment will be needed to extend the law to cover those engaging in sexual activities with a 16 or 17 year old child (prostitute) for payment. We are not yet in a position to comment on the responses to consultation on these proposals in Setting the Boundaries, resulting from the review of sexual offences."

Discussion at the Justice and Home Affairs Council, 27-28 September 2001

7.7  Document (b) includes a note from the Presidency identifying certain key questions on the scope of the proposal. These were discussed at the September Justice and Home Affairs Council. The Council Press Release states:

    "In conclusion, the Chairman noted that the responses to the ... questions show a large majority in favour of a broad scope for the Framework Decision. However, many delegations argued in favour of a differentiated approach which would take into account the age of the victim as regards the level of sentences to be imposed, especially when the victim has reached the age of sexual consent. In addition, the Council adopted the general approach of providing for an exception where images of a person over the age of sexual consent are produced, acquired and possessed with the agreement of the person concerned and solely for their own private use.

    "The Council instructed its preparatory bodies to continue their work expeditiously on the basis of the guidelines agreed by the Council, with a view to reaching political agreement as soon as possible."


7.8  We thank the Minister for his Explanatory Memorandum, and note that he considers the amendments to the text are improvements. We have a number of questions:

    (i)  In relation to Article 1, we do not understand how computer-generated or computer-altered images can be evidence or sufficient evidence that a child has been abused (as the Explanatory Memorandum seems to imply). Can the Minister elucidate?

    (ii)  In a letter to Lord Brabazon,[33] the previous Minister stated that the possibility of a definition of "prostitution" was being considered during negotiations on the proposal. We ask the Minister why no definition appears in the draft text.

    (iii)  In a report on another recent document,[34] we commented on the provisions on aggravating circumstances. We note that this document similarly provides for increased penalties where an offence "involves particular ruthlessness". We ask the Minister whether he is satisfied with this very general and subjective formulation, and for his views on how this might be transposed into the law of the United Kingdom.

    (iv)  The Minister tells us that the Government is not yet in a position to comment on the responses to consultation on its proposals in Setting the Boundaries, its report of the Sex Offences Review. Does it intend to take account of these responses in its negotiations on the current proposal? That was certainly the impression given by the previous Minister in her Explanatory Memorandum on the earlier version of the document.[35]

    (v)  We ask the Minister to keep us informed of the progress of negotiations on the scope of the proposal, in the light of the discussions at the September Justice and Home Affairs Council.

7.9  We clear document (a) as it has been superseded. We will wait for the Minister's response before we clear document (b).

29  (22042) 5206/01; see headnote to this paragraph. Back

30  (22341) 8111/01; see HC 152-iii (2001-02), paragraph 8 ( 31 October 2001). Back

31  Ibid. Back

32  (21732) 11855/00; see HC 28-viii (2000-01), paragraph 13 (14 March 2001).  Back

33  Letter of 16 May 2001. Back

34  (22655) 12103/01; see HC 152-ii (2001-02), paragraph 8 (17 October 2001). Back

35  (22042) 5206/01; see headnote to this paragraph. Back

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Prepared 14 November 2001