The Crown Prosecution Service Finally Responds To The Horrors Of Female Genital Mutilation In The UK
In early October 2012 I responded to a Crown Prosecution Service (CPS) consultation on revisions to the Code for Crown Prosecutors – i.e. the criteria by which prosecutions are brought. My response, focused solely on the absence so far of even one successful prosecution for female genital mutilation in the UK, follows below. Some 24,000 British girls are thought to be at risk of this horrific ‘procedure’ every year, so the new CPS Action Plan published today is not before time.
It is clear that Keir Starmer, Director of Public Prosecutions, like other human rights lawyers such as Dexter Dias and Felicity Gerry, is now grappling with the complex but critically important issues which, as Starmer acknowledges, those tackling FGM must face.
The tragedy is that it has taken so long, as children continue to suffer grievously, to secure any real determination to act.
Here is an annotated version of the text I sent for the CPS Consultation, cross referenced with some of the (italicised) questions which were originally posed:
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RESPONSE to the CPS Consultation on the Code for Crown Prosecutors
I will respond to this consultation only as a UK citizen with a very serious concern that action on preventing female genital mutilation (FGM) in the UK is, by any standard at all, woefully inadequate. I have however appended below some background information about the informal ‘NoFGM’ group of lobbying volunteers, of which I am a member.
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1. Is the evidential stage of the Full Code Test explained clearly enough?
No perpetrator has ever been brought to full account in a UK court of law; yet an estimated 24,000 children resident in Britain (probably now more) every year are forced to undergo this abomination. Given that a significant percentage of these children will die as a result of FGM (and even one would be infinitely too many), this failure to bring operators to justice is on a parallel with the failure which would have occurred if the perpetrators of violence to Baby P has been left beyond the reach of the law.
Nonetheless, bringing perpetrators to justice of itself cannot be the main focus of the issues around FGM and the procedures of the CPS. We must start from the assumption that the prime purpose of criminal justice is upholding the law – which, with Acts established in 2003 and well before then, is crystal clear in respect of FGM: it is illegal in every instance in the UK, and it is illegal also to permit it to occur on a British resident whilst she is abroad. Involvement in or acquiescing to FGM on a minor is a very serious crime.
Likewise, it is a fundamental requirement of UK law that anyone who is aware of potential harm to a minor must report it immediately to the appropriate authorities; and, more specifically, this is a matter of serious professional misconduct if such potential harm is knowingly not reported in respect of a child for whom a professional or practitioner has formal responsibilities in that role.
On the other hand, however, it is critical that issues such as false accusation are also properly acknowledged. False accusation may have devastating consequences for a professional or family member thus accused, and these consequences will often have serous consequences also for the child(ren) in their care.
It is therefore fully acknowledged, as a starting point, that FGM presents specific and important challenges when consideration of formal charging by the CPS is required; decisions taken by the CPS will have massive impact not only on those accused – perpetrators or acquiescers – but also very serious potential consequences for those who are necessarily collateral in such decisions.
None of this however excuses inaction. An average of more than two British children every hour throughout the year are subject to FGM. Every missed opportunity to prosecute when that is fairly adjudged reasonable is in reality another indicator that the abuse of children by FGM is in everyday reality not a matter of concern.
In the light of all considerations above it is probably time now to interrogate the issue of how suspected FGM crimes are investigated:
3.2 The police and other investigators are responsible for conducting enquiries into any alleged crime and for deciding how to deploy their resources. This includes decisions to start or continue an investigation and on the scope of the investigation. Prosecutors often advise the police and other investigators about possible lines of inquiry, the evidential requirements, and assist with pre-charge procedures. In large scale investigations, the prosecutor may be asked to advise on the overall investigation strategy, including decisions to refine or narrow the scope of the criminal conduct and the number of suspects under investigation.
4.6 When deciding whether there is sufficient evidence to prosecute, prosecutors should ask themselves the following:
- · Can the evidence be used in court?
- · Is the evidence reliable?
- · Is the evidence credible?
4.7 Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable or credible. But they should look closely at it when deciding if there is a realistic prospect of conviction.
The failure to secure thus far even one successful prosecution, ever, for FGM offences is extraordinary. Self-evidently multiples of some 24,000 victims every year (i.e. the number of children at serious risk, multiplied by the average number of people involved in each instance) are breaking the law, yet no-one has been brought to justice.
In this light there must be very serious doubt about whether the guidelines quoted above are meeting the fundamental requirement to protect children from serious, sometimes lethal, abuse.
Who is not liaising with whom? How much focus is being brought to bear on FGM as a crime which has been perpetrated or, by successful prosecution, prevented in future possible instances?
Is there too much direct focus on evidence from victims (often too young and/or afraid to speak out) and not enough focus by law enforcement agencies (taking due cognisance of the perils of false accusation) on collaboration with, and the duty of those who have, formal safe-keeping responsibilities?
Is the reluctance to prosecute in part because of the (very reasonable) reluctance to imprison the parent/s of dependent children? (And, if so, why is that reluctance not also apparent when e.g. mothers of small children are incarcerated for non-violent crimes?)
There are currently no clear answers to these questions; but it is essential that they be addressed, now.
How the Code / guidelines need to be changed in order to achieve successful and just prosecutions for FGM is obviously a question which must be asked afresh, very quickly indeed.
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2. Is the role that the views of the victim play explained clearly enough in the public interest stage?
The draft Code suggests that:
4.13 Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed.
4.14 Prosecutors should consider each of the following questions:
a) How serious is the offence committed?
The more serious the offence, the more likely it is that a prosecution is required. When deciding the level of seriousness of the offence committed, prosecutors should include amongst the factors for consideration the suspect’s culpability and the harm to the victim by asking themselves the questions at b) and c).
b) What is the level of culpability of the suspect?
The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.
Culpability is likely to be determined by the suspect’s level of involvement, the extent to which the offending was premeditated and/or planned, whether the offending is likely to be continued or repeated…
c) What are the circumstances of and the harm caused to the victim?
The circumstances of the victim are highly relevant. The greater the vulnerability of the victim, the more likely it is that a prosecution is required. This includes where a position of trust exists between the suspect and victim.
…. However the prosecution service does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.
e) What is the impact on the community?
The greater the impact of the offending on the community, the more likely it is that a prosecution is required.
The crime of FGM scores highly on all guiding principles cited here. In light of the FGM-related considerations above, it is therefore transparently clear that these guidelines are currently inadequate – or are inadequately interpreted – when it comes to the severe mutilation and sometimes killing of young girls.
Whether this is a matter for wholesale redrafting or something less drastic is a matter which must be decided by the professionals involved.
Whatever, the present situation is fundamentally unacceptable.
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3. Is there any section of the Code for Crown Prosecutors that you think should be amended and if so how?
I have neither detailed knowledge nor legal competence to comment in detail on the Code.
It is however totally apparent that the current guidance is failing FGM-abused children in every possible respect. Averaged over the year (though in fact there is an acknowledged FGM ‘season’), every week sees perhaps another 500 children damaged or at serious risk of this criminal, life-threatening cruelty.
Given that fact, it is patently obvious that things as they are must change, immediately and dramatically. Children’s lives are at very significant risk, every day, and nothing remotely effective is done to stop it, either as it is about to occur or as demonstration of how the law will deal with perpetrators and those who abet them – whether by procuring this ‘service’ or by turning a professional blind eye as safe-keepers.
If the issue for the CPS is competence and resourcing rather than the actual Code (and I cannot know if it is), then there must be a re-emphasis on those issues as they relate to FGM.
And if that means fewer prosecutions of e.g. people who steal bottles of water or receive small items of clothing stolen during riots, so be it. The CPS must surely be aware that there are greater priorities, albeit ones which politicians seem less enthusiastic about endorsing.
Perhaps the CPS Code needs to make more abundantly clear, for the benefit of both their own colleagues and the general public, that under no circumstances, ever, will cruelty of any kind – let alone the barbarism of FGM – be tolerated.
Some other countries, in Europe and beyond, do seem to offer more positive ways forward in their approach to zero tolerance of FGM; but it must always be remembered that much of what happens is kept well away from the public eye – which also means that mutilated children are often do not receive even the emergency medical treatment they require after becoming victims of FGM. There are no easy ways to halt and / or remediate the mutilation.
That might not be a popular way to frame the work of the Police and the CPS – people generally do not like to think about such things – but such framing is essential if the basic premise of these services is, as it must be, that the law exists above all else to protect those who cannot protect themselves.
- FGM is, in every case, a vile crime; it almost always causes long-term damage and sometimes it kills children.
- It is understood to be a matter about which the utmost care and discretion in respect of individuals is vital.
- Under present arrangements (‘catching’ perpetrators) there are serious issues in respect of ensuring no false accusations are made.
- But also there is a huge void in terms of emphasis on prevention via high-profile prosecutions of perpetrators. i.e. there is a total failure to prosecute even those, especially paid mutilators, whose probable guilt is above the level of the Threshold Test.
- It may (depending on likely future behaviour) be in the best interests of children to secure convictions but not imprisonment or other parental-duty-limiting punishment where the offender is a parent; but different considerations may apply where the offender is a paid operator or repeat mutilator.
- Consideration must also be given to how to deal with professionals (including the Police, as well as others) who do not take due care of children known to be at significant risk of FGM.
How all these considerations are brought to bear the draft CPS Code / guidance is a matter for professionals in that field to determine.
What they must however acknowledge, as a fundamental starting point, is that current practice in the U.K. falls desperately short of even basic requirements when it comes to protecting young children and babies from female genital mutilation.
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#NoFGM has an HM Government e-petition, No. 35313, to STOP Female Genital Mutilation (FGM / ‘cutting’) in Britain which UK citizens and residents are asked to sign.
There is also an e- petition for everyone, everywhere to sign: UK Government: Enforce the UK law which forbids FGM (Female Genital so-called ‘Cutting’).
The #NoFGM Daily News carries reports of all items shared on Twitter that day about FGM – brings many organisations and developments into focus.
You can also find out more here: #NoFGM: A Listing For Action & References On Female Genital Mutilation – a collated (and growing) list of organisations and reports for those who want to find the major aspects of the issue in one place; and also some blogs which I put together on various specific FGM issues.
Huffington Post articles by HB include:
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This article was also published in The Backbencher, on 25 November 2012.