Last March, the European Commission adopted a Proposal for a Council Framework Decision on combating the sexual abuse, sexual exploitation of children and child pornography, repealing Framework Decision 2004/68/JHA. The European Commission has pointed out that the current Framework Decision only approximates Member States’ legislation on a limited number of offences therefore it does no cover new forms of abuse and exploitation using information technology. Moreover, it does not eliminate obstacles to prosecute offences outside national territory.

According to the European Commission legislation throughout the EU is insufficient to deal with the challenges posed by crimes such as child sexual abuse and child sexual exploitation. Hence, the new proposal is intended to replace the framework decision 2004/68/JHA in order to effectively prosecute those crimes.

The Parliamentary Under Secretary of State at the Ministry of Justice, Lord Bach, is largely supportive of the Commission’s proposal although he has raise some concerns.

It should be recall that there is a Council of Europe Convention against child sexual exploitation and sexual abuse which was opened to signature in October 2007 but it has not yet entered into force. According to the Commission this Convention “arguably constitutes the highest international standard for protecting children against sexual abuse and exploitation to date.” Nevertheless, the Commission believes that the draft framework decision would provide added value to the standard of protection set by the COE Convention.

The Commission proposal imposes more obligations to the EU Member States than the COE Convention as regards the level of penalties, free legal counselling for child victims and repression of activities encouraging abuse and child sex tourism. Moreover, the Commission has stressed that “incorporating provisions from the Convention into EU law will facilitate faster adoption of national measures compared to national procedures for ratification, and ensure better monitoring of implementation.”

However, whereas the European Scrutiny Committee recognizes the importance of strengthening legislation for preventing sexual abuse, sexual exploitation of children and child pornography and for prosecuting those who commit it, it is concerned that the proposed framework decision may marginalize the Convention, “making its ratification less pressing for EU States and, as a consequence, other CoE States.”

The proposal would criminalise serious forms of child sexual abuse and exploitation presently not covered by EU legislation such as the organisation of travel arrangements with the purpose of committing sexual abuse. Moreover, new forms of sexual abuse and exploitation facilitated by the use of the Internet would also be criminalised, which includes viewing child pornography from websites without downloading or storing the images as well as the new offence of "grooming" (on-line solicitation of children for sexual purposes).

According to Lord Bach the proposal “does not contain the same protections for those above the age of consent but still under the age 18, thus it may inadvertently criminalise legal sexual activity.” The Government will seek to amend this provision.

The Commission also proposed an increase on maximum sentences for sexual abuse of children and has removed a reference to minimum sentences. The Member States would be required to take the necessary measures to ensure that these crimes are punishable by imprisonment, depending on the circumstances, for a maximum term of not less than six years, ten years, or twelve years.

Whereas the minister supports the harmonisation of maximum penalties the European Scrutiny Committee believes that “this might unacceptably fetter the discretion of the judiciary to decide sentence on the facts of each particular case.”

The draft framework decision contains several provisions to assist with investigating offences and bringing charges in criminal proceedings which would be facilitated taking into account the difficulty for child victims to denounce abuse and the anonymity of offenders in cyberspace. Hence, Member States would be required to ensure that criminal investigation and the prosecution of such offences are not dependent on a report or accusation being made by the victim.

The proposal would amend rules on jurisdiction so that child sexual abusers or exploiters from the EU face prosecution even if they commit their crimes outside the EU, via so-called sex tourism. Member States are required to take the necessary measures to establish their jurisdiction over the abovementioned offences where: the offence is committed within their territory, or the offender as well as the victim is one of their nationals or have their habitual residence in their territory. The draft Framework Decision binds Member States to assert extraterritorial jurisdiction on the basis of nationality or permanent residence of the victim as well as of the offender. It is important to mention that the UK asserts extraterritorial jurisdiction on the basis of the nationality of the offender.

The Commission has removed the provision of the existing Framework Decision allowing Member States not to assert jurisdiction where an offence is committed outside its territory.

The proposal also includes provisions aiming at ensuring more protection to victims, ensuring that they have easy access to legal remedies and do not suffer from participating in criminal proceedings, for instances by limiting the number of interviews, providing for legal aid or for a special representative.

According to the European Scrutiny Committee some of these provisions on investigative procedure and the needs of child victims “seek to bind police and prosecutorial discretion in the investigation and prosecution of these crimes" which "(…) would limit the independence of our national police and prosecution services.”

The Commission also introduced new provisions in order to help preventing child sexual abuse and exploitation offences. Member States would be required to take the necessary measures to ensure that offenders are subject to an assessment of the danger they posed and risks of repenting sexual offences against children. Under the draft proposal, Member States would have to ensure that effective intervention programmes or measures are made available in order to prevent and minimise the risks of repeated offences of a sexual nature against children.

Where the danger posed by the offenders and the possible risks of repetition of the offences make it appropriate, Member States shall decide to temporarily or permanently prevent convicted offenders from exercising activities involving regular contacts with children.

In order to combat child pornography, Member States would be required to take the necessary measures to allow judicial or police authorities to block access by internet users to internet pages containing or disseminating child pornography.

The proposal legal basis is Article 29, Article 31(1)(e), Article 34(2)(b) of the Treaty on the European Union. Therefore the proposal goes through the consultation procedure and unanimity is required at the Council for the proposal to be adopted.

On 5 June, the Justice Ministers agreed on the principle of strengthening the framework decision against the sexual exploitation of children and child pornography. Although the EU Member States undertook the commitment to boost initiatives and means to fight against sexual abuse and exploitation of children, there are several outstanding issues such as the penalties' system, particularly the severity of the penalties and the issue of the extra territorial jurisdiction in order to combat sex tourism.