Couple ask Court of Appeal to declare female genital mutilation conviction a miscarriage of justice

Eoin Reynolds

A husband and wife who successfully appealed their convictions for the female genital mutilation (FGM) of their then one-year-old daughter say new evidence shows they were subjected to a miscarriage of justice.

Lawyers for the parents, who cannot be identified to protect the identity of the child, said examinations of the child since their first trial have proven that the girl was not subjected to FGM at all.

Hugh Hartnett SC, for the child's father, said experts retained by the defence had established as a matter of fact that no such procedure took place and that experts who gave evidence for the prosecution were wrong.

Mr Hartnett said his client was convicted of FGM in circumstances where it can now be proven that no crime took place. The purpose of the legislation governing miscarriages of justice, he said, is to "make just an injustice, to compensate a person who has been wrongly convicted."

Mr Hartnett relied on the evidence of Professor Birgitta Essen, a Swedish expert in FGM who viewed a video of a colposcopy carried out on the child in 2019. She said the video showed that FGM had not been carried out.

Professor Essen examined the child in December 2023, after a second trial had ended in a jury disagreement. The examination confirmed that FGM had not taken place, Mr Hartnett said.

Before issuing a certificate of a miscarriage of justice, the Court of Appeal must be satisfied that a newly discovered fact shows there has been a wrongful conviction.

The Director of Public Prosecutions (DPP) is opposing the application for a certificate, arguing that the issue in the trial was simply a difference of opinion between medical experts and that the State acted in good faith.

The couple went on trial at Dublin Circuit Criminal Court in November 2019 having pleaded not guilty to carrying out an act of FGM on their then one-year-old daughter at an address in Dublin on September 16th, 2016.

It was the first trial of its kind in Ireland.

The 43-year-old man and 33-year-old woman also pleaded not guilty to one count of child cruelty on the same day.

They were found guilty of the FGM charge in 2019 and it is this conviction that the couple wish to be declared a miscarriage of justice.

They spent two years in prison before their convictions were quashed when the Court of Appeal found the trial had been "unfair" because of problems with how the parents' testimony was translated to the jury.

A jury was unable to agree a verdict following a re-trial in 2023.

Brendan Grehan SC, for the DPP, on Thursday said experts who were called by the prosecution were being criticised, as they are not in court to defend themselves.

FGM, he said, is a "real thing and a serious crime" and the law against it is designed to protect children, who are vulnerable and cannot speak for themselves.

He added: "It is vital that medical professionals and others 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 gardaí and Tusla.

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

Mr Grehan said the director does not intend to prosecute the parents again, and they are fully entitled to the presumption of innocence. However, he said there is no basis for criticism of the director and any review of the evidence would show there was a "full credible case for the bringing of charges".

Mr Grehan pointed out that in the first trial, the accused did not suggest that the experts who said FGM had taken place were wrong. The defence put forward, he said, that the injury to the girl's genitals was sustained when she fell on a toy, a proposition that was rejected by the experts.

When the Court of Appeal ruled the first trial had been unfair in November 2021, the child was returned to her parents' custody, Mr Grehan said. For the following two years, as they awaited their retrial, the parents made no attempt to have the child examined.

At their retrial, the defence was able to call whatever evidence they wished but "for whatever reason" had not asked their expert to examine the child, Mr Grehan said.

The jury, having heard all the evidence, were unable to agree a verdict.

Mr Grehan said the issue at the trial was the conflicting evidence of medical experts. He said there is nothing unusual in that and such matters are routinely resolved by juries.

This was, he said, a "carriage of justice in line with fair procedures" and a "trial in accordance with law".

Following the second trial, an expert who had given evidence for the DPP retired and said she would not give evidence at a third trial.

The DPP sought the opinion of another expert who looked at all the reports, including the report from the December 2023 examination carried out by an expert retained by the defence.

Having viewed the new report, the DPP decided not to proceed with the third trial, Mr Grehan said.

From the outset of the case, Mr Grehan said the DPP had to rely on the evidence of experts and, having received the new report, entered a nolle prosequi.

There is, Mr Grehan said, "no basis for saying that she did so in anything other than good faith".

Mr Justice John Edwards, presiding, with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, will hear responses from lawyers for the parents on Friday.