Originally posted on The Berer Blog
This was the headline on more than half a dozen Irish news sites on 18-19 November 2021. In all but two, the same report was repeated, almost word for word as if the writers had just copied and published what an unacknowledged source had published. Clearly they’d not had someone in the courtroom to witness the actual hearing, with two exceptions.
According to the journal.ie, several key aspects at the original trial, which had led to the conviction and imprisonment of both parents, were rejected at the appeal. One was that the translation of both the parents’ testimonies into English had been incompetent and misrepresented what they had actually said in important ways. The Appeal Court accepted this criticism:
“In one example, Mr Hartnett [counsel for the father] said a question to the accused about his daughter, when he was asked ‘would you hurt her?’, was translated as ‘do you hate her?’ Mr Hartnett said this was indicative of the translator’s ‘lack of competence’ and that the translator was ‘not so much translating but attempting to put his own view on what the witness wanted to say and putting it to the court’. Giollaiosa O Lideadha SC, for the child’s mother, said he agreed with Mr Hartnett’s submission.”
According to the rte.ie report, the parents appealed both their convictions on the grounds that their right to a fair trial had been breached when their answers to questions from counsel during proceedings were mistranslated. Hence, it may not be surprising that bad translation dominated the news articles. It is odd, however, that bad translation was the only failing mentioned as the reason for quashing the conviction, even though it was certainly not the only failing, which only the journal.ie made clear.
According to the journal.ie, the most important reason for quashing the verdict was that two medical experts disagreed over whether FGM had been carried out on the child concerned or not. Their report said:
“Professor Birgitta Essen said a video recording of the child’s genital area indicated the girl was not left with any signs of scarring after she was treated for bleeding in the perineum. However, Professor Sri Paran, the consultant paediatric surgeon who had treated the girl when she was admitted to hospital – told the court he had cauterised the wound and that was why no scars were visible.
“Professor Essen told the court she has 25 years‘ expertise in studying FGM victims from “newborn to adulthood” and had appeared as an expert witness in similar cases in Europe and North America. In her opinion, the girl had not been a victim of FGM because her clitoris was still visible. Referring to FGM criteria from the World Health Organization, Prof Essen added that the absence of scar tissue in the genital area also indicated that FGM had not been performed.
“But Prof Paran, who is also an associate professor at Trinity College and UCD, disputed Prof Essen’s interpretation. The surgeon said his priority had been to stop the bleeding which had been coming from “under the clitoral hood” when the child arrived at theatre. When examined by counsel for the State, Shane Costelloe SC, about the lack of scarring on the child afterwards, Prof Paran replied that the effect of cauterisation had covered up the scars but “underneath the surface, there was scar tissue”. Although Prof Paran conceded he had no prior experience of FGM, he said he was confident the girl had not injured herself as a result of a fall.”
So I must ask: now what? The disagreement between the treating physician and an expert witness on FGM over whether or not FGM took place, or what had caused the child’s injuries, persists. This is more than unfortunate because disagreements between witnesses described as medical experts have been a problem in several previous FGM cases too. The first was the earliest reported case of an attempt to take a child into care for safeguarding, in 2014 in Leeds Family Court, which found that expert opinion on whether the child’s genitals were normal, or had been injured or cut, was contradictory. Three people, all of whom presented themselves as experts to the court, were invited to examine the child and testify. My summary of what happened, based on the records, was as follows: “Experts 1 and 2 both examined G and said they thought they had seen evidence of FGM. However, their descriptions of the FGM differed. Expert 1 later changed her evidence and said she had made a mistake. The judge described Expert 2’s evidence as “confused, contradictory and wholly unreliable”. Expert 3 did not examine G but saw the two other reports and watched a DVD of their examination of G. She said she saw no evidence of FGM.” 
The most well-known case, R v N (Female Genital Mutilation), the first and so far only conviction in London at the Old Bailey in 2019, also involved such a disagreement. As in Dublin in 2020, the parents claimed there was a straddle injury from a fall and denied that their daughter had been subjected to FGM. Importantly, in both cases, no information regarding who had carried out the genital cutting (let alone where, or when) was ever presented, even though it was shown that the parents themselves could not possibly have done it. Yet both resulted in a guilty verdict, implying that something more was at play. Certainly the 2019 London trial was a kind of witch hunt, with many people wanting a guilty verdict. 
So I must ask again, what next? The rte.ie report said the State would be requesting a retrial (my emphasis). A request can presumably be turned down, however, and no re-trial take place. Is there a good chance of another conviction, given that a lot of evidence was rehearsed at the appeal and led to the conviction being quashed? How would the public good be served by a retrial? The parents were in jail for two years and separated from their children.
There is, however, seriously unfinished business in relation to the mother convicted at the Old Bailey in 2019, who remains in jail. Her future hangs in the balance.
It is highly problematic that medical experts can disagree so profoundly about whether or not FGM actually took place, and that a guilty verdict can follow a prosecution in which no information about who carried out the FGM was ever presented. Did the 2019 London trial influence the 2020 Dublin trial? It seemed so at the time. Now, I have to ask, will the reverse occur? Certainly, in light of the Dublin decision to quash the conviction, an appeal against the guilty verdict should be pursued in London – and the sooner the better.
With thanks to Susan Bewley for editing comments!
1. Prosecution of female genital mutilation in the UK: injustice at the intersection of good public health intentions and the criminal law, by Marge Berer, Berer Blog, 2 March 2020. This article was accepted for publication on 1 March 2020 by the journal Medical Law International. This version on my blog is the pre-publication, accepted text of the article, which I only am permitted to share there under Sage Publications’ green access policyB