Couple’s quashed conviction for female genital mutilation declared a miscarriage of justice

Fiona Magennis

A couple have had their convictions for the female genital mutilation (FGM) of their one-year-old daughter, which were quashed after they spent two years in prison, declared a miscarriage of justice.

Their trial was the first of its kind in Ireland and was the subject of an RTÉ documentary late last year.

At the Court of Appeal on Friday, Judge Patrick McCarthy said newly discovered facts disclosed in expert reports show that there has been a miscarriage of justice.

“We find on the balance of probabilities that the applicants are factually innocent,” he said, “For this reason we grant a certificate pursuant to S9 (1) (a) of the Criminal Procedure Act 1993.”

The husband and wife became the first people to be convicted of the charge in the history of the State, after a Dublin Circuit Criminal Court jury found them guilty in November 2019 of carrying out an act of FGM on their daughter at a Dublin address on September 16th, 2016.

Both had pleaded not guilty.

Their convictions were overturned by the Court of Appeal in 2021 after it found the trial had been “unfair” because of “serious and far-reaching inaccuracies” in how the mother and father’s testimony was translated to the jury.

A jury at a retrial in 2023 failed to reach an agreement, and the Director of Public Prosecutions (DPP) subsequently dropped the charges.

The couple, who are originally from a French-speaking region of Africa, subsequently launched a bid to have their quashed convictions declared a miscarriage of justice.

At the hearing in January, lawyers for the parents said that an examination of the child by Swedish FGM expert Prof Birgitta Essen in December 2023 proved that she had never been subjected to the procedure.

The court heard the DPP dropped the charges after a new report commissioned by the State “broadly” agreed with Prof Essen’s conclusions.

Delivering judgment on Friday, Judge McCarthy said the applicants could not have appreciated the significance of the child’s physical condition, which remained unchanged, or properly evaluated the opinions of the prosecution medical witnesses, without being aware of the “conflicting evidence of fact and consequent opinion of Professor Essen”, nor that of the new expert retained by the State.

He said Essen, after examining video footage of the child, had concluded that “no mutilation had taken place” and that the girl’s clitoris was intact.

She also found there was “no video evidence of removal of any genital tissue” and that the background information did not indicate an injury due to the practice of FGM.

Essen conducted a physical medical examination of the child in the company of her mother at a Dublin hospital in December 2023, he noted, and in a subsequent report, she said the clinical examination showed evidence of “intact, uncut external genitalia”.

She also found there were “no signs of female genital mutilation”.

After the physical examination took place, Prof Essen said she could “confidently assert that there was no doubt” that the child “had not undergone any form of genital mutilation”.

The judge said the existence of Professor Essen’s conflicting finding of fact came to the notice of the applicants only after their conviction.

After reviewing additional materials, the State’s expert witness said that her expert opinion was “in line with that of Professor Essen” in judgement of genital anatomy and further that the injuries sustained by the child were “not compatible with FGM”.

The court found that the expert opinions were “so enmeshed” with the factual findings based on examination, that it fell into the exceptional category and accordingly their evidence constitutes a newly-discovered fact.

He said the only evidence before the court was that contained in the reports of Prof Essen and the new expert witness retained by the State.

“These newly-discovered facts show that there has been a miscarriage of justice because, on their evidence, we find on the balance of probabilities that the applicants are factually innocent,” he said.

The judge, who sat with Judge Isobel Kennedy and Judge John Edwards, concluded: "For that reason we grant a certificate pursuant to section 9(1)(a) of the Criminal Procedure Act 1993."

Earlier, Judge McCarthy said that while there was no doubt that competent experts will discharge their obligations “unhesitatingly”, the court wished to emphasise that they should not fear doing so.

“Legitimate differences of fact or opinion have arisen here between doctors – that is all,” he said. “These fall to be resolved by courts.”

During the miscarriage of justice application in January, counsel for the DPP, Brendan Grehan, said experts who were called by the prosecution were being criticised where they are not in court to defend themselves.

He added: "It is vital that medical professionals who have concerns continue to be vigilant in relation to that and report suspicions and not be afraid to report suspicions to the relevant authorities, including gardai and Tusla.

"The message that child protection is paramount should go out and nothing said in argument here should undermine that imperative."

After judgment was delivered, the father’s senior counsel Hugh Hartnett said the issue of costs arise.

Grehan said on behalf of the director that he wanted the opportunity to take instructions and to consider the judgment. He asked that the matter be put back to the last week of term.

Judge Edwards said he would put the matter into the last day of term.