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Friday 8 December 2023 Dublin: 9°C
Leah Farrell/ The parents had both pleaded not guilty, at Dublin Circuit Criminal Court in November 2019, to one count of carrying out an act of FGM on their one-year-old daughter.

Retrial for two convicted of female genital mutilation after convictions quashed on appeal

The trial has been ruled “unfair” by the Court of Appeal because of issues with translation.

THE FATHER AND mother of a young girl who were the first people in the State convicted of female genital mutilation (FGM) have had their convictions quashed on appeal.

The parents, who are originally from a French-speaking region of Africa, now face a retrial, after the Court of Appeal today ruled their trial had been “unfair” because of problems with the translation of their testimony to the jury.

The parents had both pleaded not guilty, at Dublin Circuit Criminal Court in November 2019, to one count of carrying out an act of FGM on their one-year-old daughter at an address in Dublin on September 16, 2016.

The 39-year-old man and 29-year-old woman also pleaded not guilty to one count of child cruelty on the same day.

The jury, however, returned unanimous verdicts of guilty on all counts after three hours of deliberations following an eight-day trial.

In January 2020, Judge Elma Sheahan sentenced the man to five-and-a-half-years’ imprisonment and the woman to four years and nine months.

The couple later appealed both convictions on the grounds their right to a fair trial had been breached when their answers to questions from counsel during proceedings were mistranslated.

During the trial, the defendants had claimed their daughter suffered her injury – which had required hospital treatment – when she fell backwards on to a toy in her house.

At the Court of Appeal today, Mr Justice John Edwards, sitting with Court President Mr Justice George Birmingham and Ms Justice Isobel Kennedy, said there had been “serious and far-reaching inaccuracies in the translation process”.

Noting that submissions from the Director of Public Prosecutions had argued that a fair trial need not necessarily be a perfect trial, and that the appellants had in actual fact received a fair trial, Mr Justice Edwards said: “We beg to disagree.”

The jury, the appellant judge said, might well have acquitted if they have found the defendants’ explanation as to how their daughter’s injury occurred credible on the basis of evidence provided during cross-examination.

“It was simply unfair the jury did not receive an accurate interpretation of the appellants’ answers,” Mr Justice Edwards said.

He added that that court had “no hesitation” in ruling that the trial had been “unsafe”.

After the judgment was delivered, Shane Costelloe SC, for the DPP, said the State would be requesting a retrial.

The request was not opposed by counsel for both appellants.

Earlier evidence

At an appeal hearing last month (Oct 7), counsel for the father, Hugh Hartnett SC, told the three-judge court that problems with the court’s translation service meant his client’s trial had been “unsafe and unfair”.

“It is respectfully submitted that there was a concession by the prosecution that there had been ‘difficulties and shortcomings’ in the translation of testimony,” he said.

“It is our case shortcomings are never acceptable,” he said.

In one example, Mr Hartnett 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.

At the same hearing, two medical experts clashed over whether FGM had been carried out on the girl at the centre of the case.

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.

Professor Essen, a consultant obstetrician and gynaecologist from Sweden who specialises in FGM, said she would have expected to have seen some scars if FGM had been performed.

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.

“When FGM occurs, then clitoris is no longer retractable under the hood,” she said.

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 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 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.