Select Committee on European Scrutiny Twenty-Third Report


COMBATING THE SEXUAL EXPLOITATION OF CHILDREN AND CHILD PORNOGRAPHY


(a)
(22618)
10854/01

(b)
(23239)
7027/02

(c)
(23273)
6039/02

(d)
(23274)
6623/02


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.


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: (b) 15 March 2002
(c) and (d) 5 March 2002
Department:Home Office
Basis of consideration: (a) Minister's letter of 11 December 2001 (copy received 14 March 2002)
(b)-(d) EM of 26 March 2002
Previous Committee Report: (a) HC 152-iv (2001-02), paragraph 7 (7 November 2001)
To be discussed in Council: April 2002
Committee's assessment:Politically important
Committee's decision:(All) Cleared



Background

  10.1  This draft Framework Decision provides for the harmonisation of Member States' criminal law and penalties on the use of children as prostitutes, on their participation in the production of pornography, and on other abusive sexual activity with children.

  10.2  When we last considered it (in November), we raised a number of questions with the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth), and kept the then current document (document (a)), under scrutiny. Although the Minister replied in December, his letter never arrived; a copy was received on 14 March.

  10.3  In the meantime, documents (b), (c) and (d) were deposited. The Minister has provided one Explanatory Memorandum which addresses them all.

The Minister's letter

  10.4  We asked first for an explanation of how computer-generated or computer-altered images could be evidence or sufficient evidence that a child had been abused. In response, the Minister says:

    "The approach adopted in this instrument has been to outlaw anything which appears to be child pornography, with a view to making it absolutely clear that it is not sanctioned. It is not currently necessary in the UK to prove that a real child has been abused for a court to judge an image indecent. Not criminalising such 'virtual' child pornography would, on the other hand, risk creating a potentially huge loophole to be exploited by offenders, since images of real child abuse could be manipulated in order to make them appear to be virtual or to disguise the identity of the offender or the victim, with a view to evading prosecution. As indicated above, this is not so much an issue here, since a court simply has to judge whether a 'pseudo-image', in the language of the Protection of Children Act, is indecent. Rather, the aim is to achieve a consistent view across Europe of what is not acceptable."

  10.5  We also asked why there was no definition of prostitution in the text. The Minister confirms that this option was discussed, but tells us that there was little support for the inclusion of such a definition, and the Government did not consider it was critical to the effectiveness of the proposed measure.

  10.6  We sought the Minister's view of the very general phrase "particular ruthlessness" in relation to aggravating circumstances, and of how it might be transposed into UK law. He replies: "You will be aware that it is for courts in this country to determine the appropriate sentence in a given case in the light of all the circumstances, including aggravating and mitigating factors".

  10.7  Finally, we asked whether the Government intended to take account of the responses to its consultation document, Setting the Boundaries, in negotiating the draft measure. The Minister tells us that a complete analysis of the 700 responses to the document has not yet been completed. However, on occasion, it has been possible to get indications of the broad thrust of responses on particular matters relevant to the draft Framework Decision.

The new documents and the Government's view

  10.8  Document (c) is a revised version of the full text of the draft measure (with the exception of Article 5). Documents (b) and (d) are versions of this problematic Article. Document (b) supersedes document (d) and is thus the latest version of Article 5. Below, we concentrate on the key features of the new text as represented by documents (c) and (b), and on the Government's view of them.

  10.9  Changes have been made to Article 2, which lists the offences concerning sexual exploitation of children. "Recruiting a child into prostitution or into participating in pornographic performances" has been added to the list. The Article has also been amended to make it clear that one of the provisions refers to the buying of sexual services from children rather than consensual relationships in which gifts are offered. The Government supports these amendments.

  10.10  Significant changes have also been made to Article 3, which addresses offences concerning child pornography. The Minister draws our attention to Article 3.2 in particular, saying:

    "Article 3.2 now reads, 'A Member State may exclude from criminal liability conduct relating to child pornography:

      (1)  'referred to in Article 1(b)(ii) where a real person appearing to be a child was in fact 18 years of age or older at the time of the depiction.' This allows for not providing punishment for cases of child pornography depicting a real person who was 18 years or older.

      (2)  'referred to in Article 1(b)(I) and (ii) where, in the case of production and possession, images of persons of the age of sexual consent or older are produced and possessed with their agreement and solely for their own private use.' This is a new paragraph proposed by the United Kingdom, which ensures that Member States are not required to criminalise the production and possession of pornographic material by children who have passed the age of sexual consent, when carried out with their agreement and for their own private use.

      (3)  'referred to in Article 1(b)(iii), where it is established that the pornographic material is produced and possessed by the producer solely for his or her own private use, as far as no pornographic material as referred to in Article 1(b)(I) and (ii) has been used for the purpose of its production.' The Government has accepted this provision on the grounds that it does not provide for an exemption from the criminalisation of the dissemination or sale of virtual child pornography, nor does it provide an exemption from the criminalisation of the production or possession of such material where a real child, or person appearing to be a child, has been used in its production. Furthermore, the exemption for private production or use of virtual child pornography is optional and does not require the United Kingdom to change existing domestic legislation which does penalise such activity."

  10.11  The Minister tells us that Article 5, which deals with penalties and aggravating circumstances, has been amended entirely, but is still under discussion. The latest version (document (b)) proposes three levels of punishment (A, B, C, where A represents the least severe) to reflect the relative seriousness of the different offences outlined in Articles 2 and 3. No specific lengths of imprisonment have as yet been allocated to the different levels.

  10.12  The Minister comments:

    "The Government generally supports this proposal subject to several reservations. We object to the distinction of penalties between 'coercion' and 'profiting..or..exploiting' in Article 2(a) as we believe that exploitation is similar in degree of seriousness to coercion. The Government welcomes the fact that 'abuse of trust' offences in Article 2(c)(iii) have been assigned to Level B rather than Level C. This reflects the existing maximum penalty in the United Kingdom, which is 5 years. Generally, the Government's agreement to the text will depend on what penalty levels are finally decided as corresponding to Levels A, B and C. The Government would not wish the penalty for the lowest tier of offences to be as low as 12 months, but could agree to penalties of the order of 2-5 years."

  10.13  The Minister reminds us that the Framework Decision will have an impact on UK law, as follows:

    "The proposed Framework Decision will require amendment of UK laws defining indecent images so that children of 16 and 17 come within their scope. Amendment will also be needed to extend the law to create new offences including coercing or profiting from a child's involvement in pornographic performances (to the extent that this is not covered by certain existing offences) and engaging in sexual activities with a 16 or 17 year old child (prostitute) for payment. All the other activities, which the Framework Decision requires to be criminalised, are already criminal offences."

  10.14  He tells us that the Framework Decision is scheduled for adoption at the Justice and Home Affairs Council in June.

Conclusion

  10.15  This is clearly proving a difficult proposal to negotiate. The sensitivity of the subject matter makes it particularly important to ensure that a proper balance is struck between the protection of children and the rights of the private individual. We agree with the Minister that the proposed amendments improve the document, and we are grateful for his helpful answer to our first question, which clarifies the issue of "virtual pornography".

  10.16  In relation to the Minister's reply to our question about "particular ruthlessness", we are of course aware that it is for the courts to determine an appropriate sentence for a criminal offence, taking into account any aggravating or mitigating circumstances. However, our concern is that terms such as "particular ruthlessness" ought not to be used in a legislative instrument, because of their vagueness and subjectivity.

  10.17  Although we are aware that more work remains to be done on Article 5, we are now content to clear all the current documents, since negotiations seem to be proceeding on satisfactory lines. We shall, however, wish to scrutinise any further texts before the proposal is discussed at the Justice and Home Affairs Council in June.


 
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