A couple have had their convictions for the female genital mutilation (FGM) of their one-year-old daughter, which were quashed after they spent two years in prison, declared a miscarriage of justice.
Their trial was the first of its kind in Ireland and was the subject of an RTÉ documentary late last year.
At the Court of Appeal on Friday, Judge Patrick McCarthy said newly discovered facts disclosed in expert reports show that there has been a miscarriage of justice.
“We find on the balance of probabilities that the applicants are factually innocent,” he said.
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The husband and wife became the first people to be convicted of the charge in the history of the State, after a Dublin Circuit Criminal Court jury found them guilty in November 2019 of carrying out an act of FGM on their daughter at a Dublin address on September 16th, 2016. Both had pleaded not guilty.
The parents told doctors that the injuries were caused by a fall on to a plastic toy, an explanation that was rejected by experts who gave evidence at the first trial.
The now 43-year-old man and 34-year-old woman spent two years in prison before their convictions were overturned by the Court of Appeal in November 2021, after it found the trial had been “unfair” because of “serious and far-reaching inaccuracies” in how the mother and father’s testimony was translated to the jury.
After the first trial was ruled unfair, the child was returned to the custody of her parents.
The couple, who are originally from a French-speaking region of Africa, later launched a bid to have their quashed convictions declared a miscarriage of justice.
At the hearing in January, lawyers for the parents said that an examination of the child by Swedish FGM expert Prof Birgitta Essen in December 2023 proved that she had never been subjected to the procedure.
Essen had previously viewed a video of a colposcopy carried out on the child in 2019. She said the video showed that FGM had not been carried out.
The court heard the DPP dropped the charges after the new report commissioned by the State “broadly” agreed with Essen’s conclusions.
Delivering judgment on Friday, the judge said the applicants could not have appreciated the significance of the child’s physical condition, which remained unchanged, or properly evaluated the opinions of the prosecution’s medical witnesses, without being aware of the “conflicting evidence of fact and consequent opinion of Prof Essen”, nor that of the new expert retained by the State.
He said that Essen, after examining video footage of the child, had concluded that “no mutilation had taken place” and that the girl’s clitoris was intact.
She also found there was “no video evidence of removal of any genital tissue” and that the background information did not indicate an injury due to the practice of FGM.
Essen conducted a physical medical examination of the child in the company of her mother at a Dublin hospital in December 2023, he noted, and in a subsequent report, she said the clinical examination showed evidence of “intact, uncut external genitalia”. She also found there were “no signs of female genital mutilation”.
After the physical examination took place, Essen said she could “confidently assert that there was no doubt” that the child “had not undergone any form of genital mutilation”.
The judge said the existence of Essen’s conflicting finding of fact came to the notice of the applicants only after their conviction.
After reviewing additional materials, the State’s expert witness said that her expert opinion was “in line with that of Prof Essen” in judgment of genital anatomy and further that the injuries sustained by the child were “not compatible with FGM”.
The court found that the expert opinions were “so enmeshed” with the factual findings based on examination that it fell into the exceptional category, and accordingly, their evidence constitutes a newly discovered fact.
“These newly discovered facts show that there has been a miscarriage of justice because, on their evidence, we find on the balance of probabilities that the applicants are factually innocent,” he said.
After judgment was delivered, the father’s senior counsel, Hugh Hartnett, said the issue of costs arise. The matter was put into the last day of term.
