House of Commons - Female genital mutilation: the case for a national action plan

Female genital mutilation: the case for a national action plan - Home Affairs Committee Contents

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 investigations—a 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 omission—failure 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:

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