Select Committee on European Scrutiny Twenty-Fifth and Twenty-Sixth Report


COMBATING THE SEXUAL EXPLOITATION OF CHILDREN AND CHILD PORNOGRAPHY


(23380)
7797/02

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: 12 April 2002
Department:Home Office
Basis of consideration: EM of 19 April 2002
Previous Committee Report: None; but see (23274) 6623/02: HC 152-xxiii (2001-02), paragraph 10 (10 April 2002)
To be discussed in Council: 25-26 April 2002
Committee's assessment:Politically important
Committee's decision:Cleared



Background

  12.1  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.

  12.2  When we considered earlier versions of the proposal (at the beginning of this month), we cleared them, since negotiations seem to be proceeding on satisfactory lines. We noted, however, that more work remained to be done on Article 5, which deals with penalties and aggravating circumstances.

  12.3  The Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) has now deposited a new document, and an Explanatory Memorandum.

The document and the Government's view

  12.4  The Minister helpfully summarises the main ways in which the new document differs from its predecessors, as follows:

    "Article 5 (Penalties and Aggravating Circumstances) now provides that the minimum maximum penalty may fall within a range of penalties rather than for single minimum maximum figures. The Government supports the use of penalty ranges, which have the merit of reconciling effective approximation of penalties while providing sufficient flexibility to allow Member States to maintain the coherence of their national penalty systems. The JHA [Justice and Home Affairs] Council on 25-26 April is expected to decide the precise parameters of each penalty range. However, as presently drafted, Article 5.1 would require that any offences referred to in Articles 2, 3 and 4 be subject to a minimum maximum penalty between either 1 and 2, or 1 and 3 years, while the offences specified in Article 5.2(a) would be subject to penalties of at least between 5 and 10 years. For the offences set out in Article 5.2b, the minimum maximum penalty between 5 and 10 years applies only to offences affecting a child below the age of sexual consent, where one of the specified aggravating circumstances applies. The term 'gross negligence', used in the last text [in relation to endangering the life of a child], has been replaced by 'recklessness'.

    "The Government welcomes the inclusion of child pornography offences in Article 5.2. As the ranges relate to minimum maximum penalties, they would not preclude Member States from applying penalties higher than the upper limit of each range.

    "Article 8.6 has been added in view of concerns that the existence of a statute of limitations in a Member State (i.e. time limit on the prosecution of offences) may prevent the prosecution of an offence where the victim did not complain about the offence at the time that it took place. The United Kingdom does not have a statute of limitations and has no objection to the inclusion of this paragraph.

    "A new recital has been added to the preamble stating that 'victims who are children should be questioned according to their age and stage of development for the purpose of investigation and prosecution of offences falling under this Framework Decision'. This corresponds to existing UK practice."

  12.5  The Minister tells us that the Government supports the amendments. The Presidency is likely to aim for political agreement on the Framework Decision at the Justice and Home Affairs Council later this week, depending on whether Member States still have outstanding national parliamentary scrutiny reserves on it.

Conclusion

  12.6  The proposed penalty ranges seem to us unnecessarily complicated (especially the inclusion of an upper limit to a minimum maximum penalty, given that Member States are free to impose heavier maximum penalties anyway). However, we note that the Government supports them and it may well be that they are the only feasible way of achieving a degree of harmonisation in this area.

  12.7  We clear the document.


 
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