2 Prosecuting FGM
21. It has been a crime to carry out
FGM in the UK for almost 30 years, and for more than a decade
it has been illegal for a UK citizen or permanent resident to
aid, abet, counsel or procure the carrying out of FGM abroad on
a UK national or permanent resident. Yet until 2014 there had
not been a single FGM-related prosecution in the UK. The Government
told us it was frustrated by the lack of progress.[29]
Other witnesses highlighted the importance of a successful prosecution
for the message it would send to practising communities. For example,
the International Association of Women Police told us that "a
successful prosecution, along with the publicity surrounding it,
could assist women within affected communities to resist pressure
to subject their daughters to FGM".[30]
The Health Minister told us: "a number of successful prosecutions
would send an important signal that the law is taken seriously
and will be enforced".[31]
In this Chapter we look at the work the Crown Prosecution Service
(CPS) has undertaken to date to investigate FGM cases. We also
examine the reasons why it has proven difficult to achieve a prosecution,
and the steps the CPS is taking to address the situation.
Cases considered by the Crown
Prosecution Service to date
22. Whilst there have been several police
investigations since the criminalisation of FGM, the CPS told
us it was not until 2010 that it received its first referral from
the police. Since then it has examined 14 cases. In the first
case the decision was taken not to charge on the basis that the
victim had given several different accounts of what happened.
The reviewing CPS lawyer concluded that, without any supporting
evidence and with the victim accepting that some of her accounts
were false, no charges could be brought.[32]
In 2012, a case referred to the CPS by the police for advice involved
the allegation that a girl might have been at risk of FGM. However,
the police investigation did not find sufficient evidence that
she was at risk, and so no further action was taken. Another case
in 2013 resulted in no further action because the victim withdrew
her allegation. The CPS told us that, due to the victim's health
and vulnerability, it would not have been appropriate to use a
witness summons, and so there was no further action. In a further
case the CPS considered the allegation made by a newspaper that
two doctors in Birmingham were willing to undertake FGM on girls.
Again, however, insufficient evidence led to no further action.
23. In 2014, the CPS has been examining
a further 11 cases, seven of which are new cases, and four are
a re-review of old cases from the Metropolitan Police Service,
where the police or prosecutors had originally decided that no
further action should be taken. It includes the first case outlined
above. In March the CPS determined that there was insufficient
evidence to proceed with three of the four re-reviews, and one
of the new cases. One of the re-reviews included a case where
the suspect was alleged to have contacted an FGM helpline to request
FGM for his two daughters. On 21 March 2014, the Director of Public
Prosecutions announced her intention to bring the first ever prosecutions
under the Female Genital Mutilation Act 2003.[33]
The case is currently sub judice.
Why it has been difficult to secure
a prosecution
24. The main reason why the CPS has
struggled to achieve a prosecution until this year is because
there have been very few investigations by the police. For example,
between 2010 and 2013, the Metropolitan Police recorded just 20
referrals made to it as an FGM crime. The police and others told
us two factors contributed to the small number of investigationsa
reliance on victims or witnesses to report to the police, which
they are unlikely to do, and the failure of health, education
and social care professionals to refer cases to the police where
they suspect FGM to have taken place.
25. A number of interlinked factors
contribute to the low level of reporting by victims themselves.
First, they are usually very young when it takes place, with the
majority being under the age of 10, and some under five.[34]
As such, they are unlikely to realise that was has happened is
a crime. Second, older girls will have been taught to think of
the procedure as a positive thing, representing their rite of
passage into adulthood, and again may not view FGM as a crime.[35]
Third, even where the child subsequently becomes aware that a
crime has been committed against them, they may be reluctant to
give evidence against their parents and relatives for fear of
losing them.[36] For
most children their experience will have taken place in what is
otherwise a loving and caring environment. Fourth, victims may
face huge social pressure from their families and communities
to remain silent, fearing reduced marriage prospects, ostracism,
and at worst violence if they try to speak out.[37]
This pressure may be amplified for women and girls who are new
to the UK, and so may already feel isolated. Fifth, the prospect
of giving evidence at trial has the potential to be hugely traumatic
for the individual concerned. The risk to the victim may be so
great that it is not in their interest for a prosecution to go
ahead. Overall, as the Director of Public Prosecutions put it:
"if you wait for the archetypal young girl to come through
the door to tell you what has happened to her [
] that is
not going to happen".[38]
26. Even when a woman or girl comes
forward, the CPS told us it can be difficult for the police to
build sufficient evidence to mount a prosecution. Investigators
may face silence from the community, or the woman may have come
forward some years after the act had taken place. If the procedure
occurred outside the UK it can be difficult to obtain reliable
and admissible evidence from the country in which it took place.
The victim's evidence may also not be reliable enough because
of their age or inability to identify the cutter because of the
traumatic nature of the act.[39]
27. Because of the lower likelihood
of self-reporting, the police are reliant instead on referrals
from other sources. These should include health professionals,
including midwives, GPs, gynaecologists, and paediatricians who
come into contact with women and girls who have undergone FGM
or are seen as at-risk. It also includes education professionals
who may observe girls being taken out of school for an extended
trip to their home country. Where a girl is already flagged as
being at-risk, referrals may come from social care workers. Referrals
may also come via the third sector, especially where a girl feels
unable to approach a person seen to be in authority. However,
the police told us the number of referrals it received from these
sectors was much lower than it would expect given the prevalence
of FGM. The table below provides the figures for the Metropolitan
Police Service between 2010 and 2013. A large proportion of the
referrals (122) during this period related to girls who were seen
as at risk of FGM, therefore requiring preventative safeguarding
activity. As noted above, a relatively small number of referrals
were classified by the MPS as an FGM-related crime.Table
1: Total FGM-related referrals to the MPS between 2010 and 2013
Referral source
| Number of referrals
|
Social care
| 57
|
Police |
44
|
Health |
34
|
Education |
17
|
Other |
9
|
Total
| 161
|
Source: FGM 0025
(Metropolitan Police Service)
28. The low level of reporting by those
frontline practitioners who have a responsibility for child safeguarding
is in part because of a lack of awareness of the indicators of
a girl who might be at risk or has undergone the procedure. Even
when they are aware, professionals may be reluctant to intervene
because of cultural sensitivity and a fear of being seen as racist,
or because they are unsure how to make a referral.[40]
However, this reluctance is based at least in part on a failure
to perceive FGM as a safeguarding issue like other forms of child
abuse. There has been some improvement in the number of referrals
from frontline professionals in the last year. The Met told us
it received 69 referrals in 2013, as opposed to 26 in 2012 and
24 in 2011.[41] But these
figures are still low relative to the likely number of girls at
risk, or who have undergone FGM.
Recent steps by the Crown Prosecution
Service
29. The CPS told us that the lack of
prosecutions for FGM until 2014 was an issue it was very aware
of, and determined to change.[42]
To this end, in 2011 it published the first piece of specific
guidance to prosecutors on dealing with FGM.[43]
This sets out the legislation under which FGM can be prosecuted.
It also emphasises the need to consider the willingness of the
victim to give evidence, the consequences for them of doing so,
and the measures that can be taken to help vulnerable and potentially
intimidated witnesses to give their best evidence in court. As
one witness told us, "it is imperative that women and girls
are protected and supported before, during and after any interaction
with the criminal justice system".[44]
The CPS will consider whether a prosecution is possible without
the victim giving evidence, but the Director of Public Prosecutions
acknowledged to us that in the majority of cases a prosecution
would only stand a chance of success if the victim was prepared
to go to court and give evidence.
30. Special measures available to help
vulnerable witnesses to give evidence include the use of screens,
live links, evidence given in private, the removal of wigs and
gowns by judges and barristers, video-recorded evidence, witness
examination through an intermediary, and aids to communication.[45]
The CPS can also arrange for a court familiarisation visit for
the witness. The Director of Public Prosecutions told us an additional
support for witnesses could be the right to anonymity in the press
and broadcast media, so that they can give evidence without fear
of the general public and people in their communities knowing
what has happened to them.[46]
This is already the case for certain types of case, such as rape,
under the Sexual Offences (Amendment) Act 1992, although FGM is
not explicitly covered by the legislation.
31. In addition to providing support
for witnesses, the CPS has put in place an action plan to increase
the number of prosecutions. Steps taken have included exploring
the possibility of prosecuting offences under other legislation,
and the development of a protocol for the police to refer all
cases of FGM to the CPS for early advice on the lines of enquiry
and evidential issues so that the police can build a strong case.
To facilitate this the DPP has identified lead prosecutors on
FGM in each of the 13 CPS areas and CPS Direct, who will be the
main contact points for police and communities. The CPS told us
that as a result of this work it was now much better prepared
to identify cases where there is sufficient evidence for a realistic
prospect of conviction.[47]
Comparisons with France
32. A further aspect of the CPS action
plan has been to consider the approach taken in other countries
to prosecuting FGM-related cases. France has been a leading example
in this respect, having achieved more than 40 prosecutions since
1979, resulting in the punishment of more than 100 parents and
cutters.[48] There is
no specific law against FGM in France. Instead perpetrators are
prosecuted under general provisions of the penal code, such as
acts involving intended bodily harm, causing permanent infirmity
or mutilation.[49] It
is an aggravating factor in these crimes when they are committed
against a minor. The comparative success of France is in part
thanks to the efforts of a few individuals, including the barrister,
Linda Weil-Curiel, who told us prosecutions had played a vital
role in encouraging parents to abandon the practice.[50]
33. A key feature of the French system
is the use of regular medical check-ups on children up to the
age of six, which includes examination of the genitals. The system
is not mandatory, though receipt of social security is dependent
on participation.[51]
Furthermore, girls identified to be at risk of FGM are required
to have medical examinations every year, and whenever they return
from abroad.[52] This
approach is reinforced by a requirement on medical practitioners
to set aside patient confidentiality and report cases of physical
abuse against children. French law also criminalises acts of omissionfailure
to assist a person in danger can result in a heavy fine or imprisonment.[53]
Again, this approach has proven effective both in protecting girls
in France from FGM, but also providing the evidence to mount a
prosecution where FGM has taken place.
34. The UK does not have an equivalent
system of regular checks for all children, and at present the
Government has no plans to go down this route. The Children and
Families Minister told us mandatory checks would be "a hugely
intrusive practice upon young girls and that would cause its own
problems", whilst the Public Health Minister said, "there
are so many better ways we can focus our efforts on prevention
and support".[54]
Indeed the system in France has proven controversial. In some
cases it has had the effect of increasing the age at which girls
may be forced to undergo the procedure, with parents more likely
to wait until their child is 12-14, before sending them abroad
to be cut.[55] The Royal
College of General Practitioners told us that, while routine screening
could have positive outcomes, it could alienate hard-to-reach
individuals and communities, and could in itself be a traumatic
experience.[56] The Association
of Chief Police Officers, however, told us it would support mandatory
testing for cases where it was known that a child was likely to
be at risk.[57] The recent
intercollegiate report on tackling FGM stated:
[
] it is important to underline
the principle that in specific situations where there is a suspicion
that girls have undergone FGM, FGM assessments and medical examinations
are helpful and it should not be seen as abusive to undertake
such examinations [
] In the experience of the Royal College
of Paediatricians and Child Health (RCPCH) Child Protection Standing
Committee, children and their parents do not find such examination
traumatic.[58]
35. A number of successful prosecutions
would send a clear message to practising communities that FGM
is taken seriously in the UK and will be punished accordingly.
There has rightly been increasing public outrage at the failure
to achieve a prosecution in the 29 years that FGM has been a crime,
with the first prosecutions taking place only this year, after
the Committee commenced its inquiry and only a matter of days
before the DPP appeared before this Committee. This compares starkly
with the approach in France, where a large number of successful
prosecutions has played a key role in discouraging the practice.
One reason behind the UK's poor record is that the police and
Crown Prosecution Service have historically been far too passive
in their approach to FGM by waiting for survivors to come forward
and report. Yet, the nature of FGM means it is unlikely that this
will happen. Often victims do not become aware that FGM is a crime
until some years after it has happened to them. Even then, they
face huge social pressure not to report it.
36. We welcome the more recent proactive
work the CPS has undertaken to secure prosecutions, which we hope
will bear fruit. A key difficulty, though, remains the ability
to gather sufficient evidence on which to base a prosecution.
The police must do more within practising communities to publicise
the fact that information can be reported anonymously. In addition,
if victims had the protection of press and broadcast anonymity,
this might encourage more to come forward. To allow this, we recommend
the Government bring forward proposals to extend the right to
anonymity under the Sexual Offences (Amendment) Act 1992 to include
victims of FGM.
37. The use of regular examinations
of all children in France has been a key factor in obtaining evidence
that has underpinned a large number of prosecutions. It would
be a disproportionate response to introduce such a universal system
in the UK. However, we do believe there is a case for a system
that empowers medical professionals to make periodic FGM assessments
where a girl is identified as being at high risk. Any such system
would need to form part of a much wider scheme of preventative
and safeguarding work, which we consider in the next two chapters.
29 FGM 0029 (Government), para 4 Back
30
FGM 0011 (International Association of Women Police), para 32 Back
31
Q247 (Parliamentary Under Secretary of State for Public Health) Back
32
FGM 0050 (Crown Prosecution Service), Para 9-12 Back
33
CPS announces first prosecutions for female genital mutilation,
Crown Prosecution Service Blog, 21 March 2014 Back
34
FGM 0022 (Intercollegiate Group), para 2, and FGM 0025 (Metropolitan
Police Service), para 11 Back
35
FGM 0046 (Association of Chief Police Officers), para 33 Back
36
FGM 0001 (Children and Families across Borders), para 1, FGM 0022
(Intercollegiate Group), para 3, FGM 0029 (Government), para 8,
and FGM 0042 (Lancashire Constabulary) Back
37
FGM 0018 (Agency for Culture and Change Management), and FGM 0042
(Lancashire Constabulary) Back
38
Q83 (Director of Public Prosecutions) Back
39
FGM 0050 (Crown Prosecution Service), para 15 Back
40
FGM 0004 (NSPCC), para 18, FGM 0011 (International Association
of Women Police), para 3, FGM 0022 (Intercollegiate Group), para
5 Back
41
FGM 0025 (Metropolitan Police Service), para 17 Back
42
FGM 0050 (Crown Prosecution Service), para 32 Back
43
Crown Prosecution Service, Female Genital Mutilation Legal
Guidance Back
44
FGM 0045 (Mayor of London's Harmful Practices Taskforce) Back
45
FGM 0050 (Crown Prosecution Service), para 21 Back
46
Q106 and Q109 (Director of Public Prosecutions) Back
47
FGM 0050 (Crown Prosecution Service), para 28 Back
48
Q417 (Linda Weil-Curiel) Back
49
FGM 0014 (UCL Graduate Law Society), para 4.4 Back
50
Q437 (Linda Weil-Curiel) Back
51
Q279 (Parliamentary Under Secretary of State for Public Health);
FGM 0014 (UCL Graduate Law Society), para 4.6 Back
52
Julie Bindel for the New Culture Forum, An Unpunished Crime:
The lack of prosecutions for female genital mutilation in the
UK, 2014 Back
53
FGM 0014 (UCL Graduate Law Society), para 4.5 Back
54
Q279 (Parliamentary Under Secretary of State for Public Health)
and Q282 (Parliamentary Under Secretary of State for Children
and Families) Back
55
Q445 (Linda Weil-Curiel) Back
56
FGM 0052 (Royal College of General Practitioners), para 11 Back
57
Q158 (Association of Chief Police Officers) Back
58
Tackling FGM in the UK: Intercollegiate recommendations for
identifying, recording and reporting, November 2013 Back
|