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
||Articles 31(e) and 34 (2)(b) EU; consultation; unanimity
|Deposited in Parliament:
||(a) 1 May 2001
(b) 13 July 2001
|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
(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.
The two Framework Decisions are now being treated separately.
Last week, we cleared the Framework Decision related to trafficking
in human beings.
At the same time, we cleared the earlier document (22042), since
the previous Committee's questions on it had been satisfactorily
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
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
7.5 Article 9 has been replaced by three new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.
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
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,
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,
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.
(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
7.9 We clear document (a) as it has been superseded.
We will wait for the Minister's response before we clear document
29 (22042) 5206/01; see headnote to this paragraph. Back
8111/01; see HC 152-iii (2001-02), paragraph 8 ( 31 October 2001). Back
31 Ibid. Back
11855/00; see HC 28-viii (2000-01), paragraph 13 (14 March 2001).
of 16 May 2001. Back
12103/01; see HC 152-ii (2001-02), paragraph 8 (17 October 2001). Back
5206/01; see headnote to this paragraph. Back