The role of the police and the courts in prosecuting allegations of FGM: a review of “The FGM Detectives”, Channel 4 TV, and the case that just ended at the Old Bailey

26/03/2018 Comments Off on The role of the police and the courts in prosecuting allegations of FGM: a review of “The FGM Detectives”, Channel 4 TV, and the case that just ended at the Old Bailey

The Channel 4 TV programme was shown on 27 February 2018, reported by Cathy Newman. It depicted the failure of a British detective named Leanne Pook to bring a successful prosecution against a Somali father of a six-year-old girl for allegedly arranging for her to have FGM, after an investigation that took two years. The programme was supportive of the police action right to the end, yet it provides a disturbing picture of why the police and the Crown Prosecution Service have failed to successfully prosecute cases of FGM four times now. The case also highlights, as have previous court cases, the important role of the court in not allowing the accused parent to be found guilty, due to the lack of evidence. It shows, in my opinion, that the involvement of the police and the criminal law is not the way to prevent FGM, or to support those who have had or may be at risk of FGM.

The programme illustrated how the right to bodily integrity of a six-year-old girl believed by the police to be a victim of FGM was violated by the police. The investigation was based entirely on the uncorroborated report of a conversation between a taxicab driver, the girls’ father, and a passenger in his cab. The passenger, who was a member of an anti-FGM group in Bristol called Integrate, presumably raised the issue of FGM with the driver because he was Somali. The passenger alleged that the father said he was not against minor forms of FGM, and that he had had that done to his daughter.

The programme opens: “Thousands of British women and girls have had their vaginas deliberately mutilated.” This is false. First, there is no evidence worth the name that most of those living with FGM in Britain have had FGM in Britain. Secondly, FGM is practised on the external female genitalia, the clitoris and labia, and sometimes also by sewing the edges of the vaginal opening together. There is no mutilation of the vagina.

DCI Pook, who led the investigation of the case was, in addition to being a police officer, a trustee of the local anti-FGM group in Bristol called Integrate. The taxicab passenger reported his conversation with the driver to someone more senior than him at Integrate, who in turn reported it to DCI Pook. The programme follows her investigation of the taxi driver, his wife and his six-year-old daughter, and her unsuccessful attempts to gather any evidence to prosecute the father for FGM beyond the passenger’s description of his conversation with the father.

The police considered the passenger’s statement to be enough for them to pursue the case. DCI Pook was very keen to do this; she wanted to be the first to bring a successful FGM prosecution in this country, which emerged strongly during the programme, raising questions about her ability to be impartial, question which were asked after the trial collapsed.

The programme was extremely vague about why the investigation should have taken two years. The police did not prosecute the girl’s mother, though they found the phone number of a “circumciser” on her phone, who the father said had been contacted to circumcise one of his sons. The programme did not indicate whether the circumciser was ever questioned and nothing more was said about him. In the programme, the investigation never went beyond the questioning of the girl and her parents, and discussion about the examination at two different times of the girl’s genitals. Yet one would expect other family members, friends, neighbours and other Somali community members close to this family to be questioned.

Yet, 17 minutes into the programme, DCI Pook is shown to be participating in a street demonstration against FGM with women and children from Bristol and is also shown talking to a group of parents and adults, about the importance of investigating FGM. This is followed by a meeting with youth members of Integrate, where a discussion about claims that a small nick is not abuse are challenged. This shows that DCI Pook’s role as both the investigating police officer and anti-FGM advocate are completely intertwined in this investigation, with no question of a possible conflict of interest being raised. The question of the consequences for the child or her parents that the whole community knows about this investigation is never mentioned.

The girl’s parents deny ever having had anything done to their daughter, and her father denies ever making the comment that he was accused of making while driving his taxi.

The only other possible source of evidence shown by the programme to be sought, was the girl herself. Investigating her took two forms: first, she was questioned by someone considered to be an expert at using drawings with children as a means of getting information from them. The girl was asked to do a drawing of her body in the hope she would recall the FGM because it would have been traumatic, so she might say something about it. This did not happen, however. The expert failed to elicit any verbal or visual evidence that FGM had taken place.

The second step was to examine the girl’s genitals. In order to do that, the programme reports, she had to be willing, so she was interviewed at her school. There is a meeting with 5 or 6 staff from the school. We are not told who was present when the girl’s permission was sought nor what was said to her, but we are told she agrees. The child’s parents are informed it will happen but they are not permitted to be present, nor was their permission sought. The programme gives no information about who conducted this physical examination. We learn later that some kind of equipment (unidentified) was used and that pictures were taken of her genitals. We have to assume the examiner would have opened her labia and closely examined her clitoris for evidence.

The police were at least honest enough to say at some point afterwards that the little girl described the examination as disgusting. This is hardly surprising. In my opinion, the examination constituted a serious violation of her bodily autonomy, of her right to privacy and to be able to withhold her consent. Yet a six-year-old girl could not possibly have understood what the examination would involve, and even if she had, how could she have refused? Adults from her school, the police, all apparently supporting it, her parents absent – all major forms of pressure. Even if she had had FGM in the past, it is highly questionable that this is ethically acceptable.

But that’s not how DCI Pook saw it. Her response to the girl’s reaction is that an investigation must be thorough enough that the victim is not relied upon alone for the evidence (or in this case lack of evidence). The child was in fact examined twice, we learn later, but we were not told how often she was questioned nor what the questioning covered. DCI Pook reports that the first person who examined her found something that might have come from a small cut on the child’s clitoris. A detective reports that the girl had at some point been taken out of the country during school holidays, which he describes as an opportunity for her to have been cut elsewhere. Indeed, or it might have been a holiday or a family visit. No further details are given, and no evidence is offered of this being more than a supposition.

By this point in the programme, however, the lack of evidence is becoming obvious. To counter this, DCI Pook embraces the idea that a “small cut” may have been done without leaving visible damage or scarring – a tiny nick (enough to draw a drop of blood) or a pinprick – and she decries the belief that this should not be prosecuted as FGM, and indeed she seems to conflate it with a severe or mutilating cut. Another officer says a nick or a pinprick of any kind is still painful. Several of the male officers talk about the importance of the police protecting little girls from such abuse. Yet they have protected this little girl from nothing whatsoever.

The facts of this case are, whether she had been subjected to any form of FGM or a pinprick or not, no mark nor scar nor any other evidence from any person was found to indicate that anything had been done to her.

Moreover, it is reported that the photographs of the little girl’s genitals from the first examination were sent to an “FGM expert” to analyse. While this expert says she thinks the photos may indicate an injury, she believes they are “not good enough” as evidence. So she asks to conduct her own physical investigation of the girl as she wants to feel 100% sure there is an injury before she is involved in sending someone to prison. Hence, and the timeline here is totally unclear, it was agreed that a second physical examination of the child would be carried out by this expert, who is again not identified in the programme, and whose credentials are therefore unknown.

One of the male police officers is unhappy about a second examination because the first examination was unpleasant for the child, and this upsets him. Even so, and for reasons best known to themselves, the police decide it is time to arrest the parents, take them into the station and question them separately. Were they not questioned before the child was examined? We don’t know.

More than half a dozen police officers dressed in jeans and t-shirts, not in uniform so as “not to upset the community” set off to the family home. Unfortunately, the parents are not at home so they are asked to attend the police station, which they do and are arrested there. Their home is searched by a police team in their absence.

The father, it is reported, is questioned through an interpreter. This implies his English is limited, which is a critical matter but the programme does not treat it so. Yet in the second FGM trial in London, in 2015, in which another Somali man was accused of asking for his wife to be re-sewn up following delivery of a baby, he needed an interpreter in order to be questioned in court, and he was acquitted in part due to the probability that his English in the delivery room was misunderstood.

In any case, the programme reports that during questioning, the father denies there had been any FGM or any intention of FGM, and he denies ever having had the conversation with the Integrate team member in his taxi. The police officer questioning him says to him that the examination of his daughter had indicated an injury to her genitals and that the expert who had examined the photographs had also seen an injury. Although both these claims are patently false, the programme does not note it. The mother is similarly told that an injury had been identified. She reads out a prepared statement that she is opposed to FGM, and she refuses to answer any questions. Did the parents have any legal advice? We are not told. Had it been my programme, I would certainly have interviewed their legal team.

Meanwhile, in between each of these bits of the programme, there are shots of traffic on Bristol’s roads, sometimes speeded up, and shots of DCI Pook driving her car and talking to the camera… often with tense music playing which is totally out of place.

The search of the family home yields half a dozen plastic bags full of papers, but the only possibly incriminating item found is a phone number on a small bit of paper stuck behind a picture hanging on a wall. The phone number turns out to be the father’s phone number, however, not incriminating at all. How disappointing for the police, who still assert that if you hide something behind a picture frame like that, it is usually incriminating in some way. DCI Pook is not discouraged though. She explains that you rarely get one big piece of evidence in a case, as happens on TV. So they are cracking on.

It is time for the second examination of the girl’s genitals, by the “expert”. This examination found her genitals to be completely intact, with no evidence of any injury or FGM. We learn this indirectly through watching DCI Pook listening to the expert on the phone. The expert appears to apologise for disappointing her, and we hear DCI Pook say (in a very disappointed voice) that it was OK, never mind, the expert was just doing her job.

After she hangs up the phone, DCI Pook doesn’t say: “Isn’t it wonderful that this little girl has no evidence of any injury!” No, she says this news is a disaster for the police, and one of her male officers agrees. It seems they really wanted this little girl to have had FGM. DCI Pook looks straight into the camera and says: “This is a hammer blow to our case… I’m disappointed because I think we won’t get justice for this little girl.”

Oh, it seems that in spite of this phone call she remains convinced that FGM has happened to this child! What did the expert say to make her think so? DCI Pook tells us that the expert’s written report of her examination states that the lack of genital evidence may indicate that any injury may have healed. I would have liked to see the report myself, however, as this beggars belief.

But meanwhile, DCI Pook is good to go again, though she needs to find something to “strengthen the case”. The girl’s mother’s cell phone provides it, as noted earlier. They find a text and a phone number of a man whom the mother says has recently circumcised one of her sons. When she is asked if she has also had her daughter circumcised, she says “No comment”. Of course, if someone says “No comment” instead of yes or no, the assumption is that they are guilty. Does this prove they are? No. The programme does not report whether the son is examined for evidence of recent circumcision, surely an extraordinary omission. Nor does it say whether the alleged circumciser, whose evidence would surely have been key in this case, was found and interviewed. This is even more extraordinary.

At this point in the programme, we learn that “the evidence” has been submitted to the Crown Prosecution Service (CPS) to see if they think it is enough for criminal charges to be brought. After more speeded up footage of Bristol, of boats on the river this time, and to increasingly loud tense music, we learn that the CPS has given permission for a charge of child cruelty against the father to be brought and for “allowing or arranging for [the child] to have FGM”. They give permission for the father to be arrested and charged. If found guilty, we are told, he faces up to 10 years in prison.

When the court date is set, DCI Pook tells the camera, some of the Somali community have been heard to say they may organise a protest. Who has reported this to her is unstated, but the implication is that someone has been monitoring the Somali community’s response and reporting to the police. DCI Pook expresses concern that her witness, the taxi passenger, may be threatened, and she is shown talking to him on the phone to get reassurance that this has not in fact happened.

he next thing covered by the programme, although far too briefly, is when the Bristol Crown Court hears the evidence. The courtroom is packed. DCI Pook thinks this is mainly journalists, which she thinks indicates the importance of the case. However, the outcome is not at all what she is looking for. After what seems to be a very short space of time, the judge questions inconsistencies in the main witness’s statement and the evidence is described as “beginning to unravel”. The judge concludes that on the basis of the existing evidence, he would direct the jury to acquit the defendant. The programme tells us that the judge found the evidence deeply troubling and “wholly inconclusive at the highest”. She reports that the judge describes the equipment used to examine the little girl the first time as being 15 years out of date (what equipment was this, I want to know!) and that the photographs taken at that time were so blurry as to be of no use clinically or forensically as evidence. The main witness, though honest, the judge believes, had been influenced by his role in the charity Integrate. The CPS accepts the judge’s decision, but they also defend themselves by saying they thought there had been sufficient evidence to prosecute and that it was in the public interest to do so. Thus, the CPS also seems to have learned nothing from two previous failures, the first of which was comparable to this case.

And thus, if we forget the child and her parents for a minute, there is total self-justification all around. Thank heavens for the competence of the judge.

The programme returns to DCI Pook, now sitting by the river, who claims this is all part of the job. She is shown justifying herself to the media, and then says to the camera: “There were some evidential difficulties, we never denied that…”. She remains firm, however, that in spite of the negative impact on the family and the community, the police had a job to do and they did it. She says they have children to protect and that’s what they were doing. But were they, in this case? I don’t think so.

As DCI Pook walks away from the camera, the reporter says the police have had difficulty prosecuting anyone successfully because young victims keep silent – thereby implying that the child in this case had been silenced or was lying. This is frankly outrageous. “Victims” who are old enough to understand what has happened to them are not keeping silent. Yet it seems that no one involved in this criminal investigation or in making this TV programme thinks it is even remotely possible that the child concerned had never had FGM, in spite of the lack of evidence and the judge’s unequivocal assessment of the situation, which the programme corroborates in spite of itself. I’m left speechless. The programme closes with a report that yet another FGM case was due to be heard in London in the third week of March 2018.

And so it was.

This most recent case was heard at the Old Bailey in London, ending on 22 March in an acquittal. Here is how the Mail Online reported it in cringe-making language:

“The 50-year-old man, who cannot be named to protect the identity of the child, was cleared of two charges of FGM, alternative charges of wounding with intent and child cruelty… The defendant had been accused of twice arranging for someone to go to the family’s home in south London to cut the young girl with a razor as she lay on a mat in the hallway. The girl said she cried in pain and begged for it to stop but her father just encouraged the cutter, jurors were told. The child could not recall the identity of the person who allegedly subjected her to the ordeal twice… The prosecution said it did not happen for cultural or family reasons, but as a punishment. The allegations came to light after the girl told a friend, whose mother contacted Childline.”

I was unable to attend this trial and no one has covered it in a TV programme (yet). Here are the only other things I have found about it in the Guardian: During an interview in July last year, the daughter, now aged 16, said she had been subjected to FGM twice between 2009 or 2010 and 2013. On each occasion she claimed she was made to lie on a mat in the hallway of her home, naked from the waist down. Jurors also heard that she could not identify the cutter but said she recalled her father “egging the person on”.

The Guardian said the father was a 50-year-old solicitor and a Catholic. He was accused in court of being violent towards his children as well. His defending counsel said the divorce of the girl’s parents had led the mother to turn the children against him, and that they had rewritten their own histories as a result. Oddly, the Guardian reported: “The court heard the girl had been cut as a form of punishment after stealing money from the family home.”

As part of her defence of the father, Kate Bex QC, suggested that FGM was “predominantly perpetrated by female cutters on women” for reasons including “purification, honour and social acceptance”. But it is not true that only women do the cutting; it is also known to be done by men. The QC also apparently claimed the father could not have been responsible for the FGM because he was a Catholic, yet that is irrelevant. FGM is a traditional cultural practice and while some people claim it is an Islamic practice, those who have studied religious texts and history have shown it is not. Moreover, while FGM is found in some predominantly Muslim countries, it is not found in others, while it is found in certain predominantly Christian countries, in the Middle East and North Africa and also in sub-Saharan Africa and parts of Asia. Yet these two claims by the QC were reported by the Guardian to be (among) the reasons why the father was acquitted.

Evidence appears to have been submitted to the court that examination of this girl showed she had actually had her genitals cut in some way. But as the father denied arranging it and the girl had no memory of who had done it to her on either occasion, and no news report mentions further evidence, the father was acquitted. The Guardian says the jury deliberated for more than six hours before finding him not guilty of two counts of FGM, two alternative counts of wounding with intent and three counts of cruelty to a child. It seems that even though FGM was done, and perhaps more abuse, who had actually done it was not known. Why the father was not found guilty of anything is unclear, though it seems it was his word against his daughter’s. Without having heard the trial, however, it is impossible to know, and speculation is useless.

Conclusions

The four cases have one thing in common. There was insufficient or no evidence presented, and there was an absence of credible witnesses or corroborating statements. In three of the four cases, no genital evidence of FGM was found either. Hence, it can be concluded that these four cases were all doomed to fail.

Moreover, limited knowledge of English among those put on trial was recognised in interrogations of them through the use of interpreters, but this was not properly taken into account as a complicating factor in two of the four cases. Perhaps most importantly, in three of the four cases one onlooker reported someone they thought was suspicious to the police. I believe that the way the police and some anti-FGM activists are presenting this situation, as illustrated in the Channel 4 programme, it sounds like a witch hunt and the consequences for the communities affected and the children concerned are being swept aside in the fervour of wanting to find someone to hold responsible.

Lastly, although no one has yet publicly questioned whether the examination of the genitals of babies and small children for FGM is a violation of those children’s rights to privacy and bodily integrity, I am absolutely convinced it is. I am aware that this is also an issue with accusations of sexual abuse and rape of children, which I cannot comment on, but it would appear that the people who have carried out FGM examinations seem to be anything but experts.

The Guardian article ends with a quote from Leethen Bartholomew, the head of the National FGM Centre, which includes this statement: “The effects of FGM have a lifelong impact on survivors, both physically and psychologically, so it is vital support is in place for her for as long as she needs it.” This makes it seem that women who have had FGM are incapable of living their lives on their own two feet. It is the sort of statement that fuels extremist responses.

Criminalising FGM has stigmatised whole communities in the UK, such as the Somalian community. FGM has been falsely identified as an Islamic practice, thereby contributing to the stigmatisation of the religion and those who practise it as barbaric, alongside the link to terrorism. People who believe some form of FGM is necessary in order to remain part of their community are seen as monsters. Even the use of a pinprick to replace actual genital cutting, a positive sign that the practice is being transformed into something symbolic but not damaging, is still condemned as horrific and an abuse. When mothers argue that it is the only way their daughters will be accepted as marriageable, in a community where marriage is critical to belonging, this should not be seen as violence for its own sake but as a patriarchal demand that must be challenged among both men and women. Meaning that the way to try to prevent it should not be the use of criminal law.

There have been exaggerated claims of FGM prevalence in the UK, without any distinction between those adults who may have been cut in their home countries as children before coming here, and the completely unknown prevalence in children today who were born here. Health professionals are required to act like the police and to question women patients with girl children, on the assumption that their nationality/background is enough to indicate their children are at risk. Although no one has yet been identified as having done even one cut on one little girl in this country, there is an assumption put about that it is not only happening, but happening widely. All this is indicative that the practice has been demonised in many people’s minds.

I believe it is past due time to give serious reconsideration to how FGM is dealt with and perceived in the UK, and to finding ways of addressing it completely differently. The communities concerned need to have the leadership in this – for example, community-led educational information, based on the understanding of women who have experienced FGM and their families as to why they should not make their daughters and grand-daughters go through it too. Moreover, communities where FGM is/was practised should not be described individually or collectively as uncivilised, abusers or criminals by anti-FGM activists. That is racist.

In a paper I published in 2015, I called for the health consequences of FGM to be addressed because these are what women with FGM have asked for help with. A study among midwives in Belgium, published in Midwifery in 2014, found that the most common complications midwives said women sought help for were: psychological problems (63.1%), chronic pain (32.3%), sexual problems (30.8%), recurrent urinary tract infections or incontinence (24.6%), fistula formation (13.8%) and bleeding (9.2%). Complications in pregnancy and childbirth have been described in the UK as well. Practical help with these sorts of problems are a much more supportive way to address this issue with affected women. Health professionals need training to do so.

The police and the criminal justice system are not the answer.

 See my previous writing on this issue which covers the first two cases that took place in the UK:

Reflections on the recent arrest in London of two people for female genital mutilation (FGM). Berer Blog, 14 April 2014.

Acquittals in the FGM case in London: justice was done and was seen to be done, but what now? Berer Blog, 10 February 2015.

The history and role of the criminal law in anti-FGM campaigns: Is the criminal law what is needed, at least in countries like Great Britain? Reproductive Health Matters 2015;23:145-157. https://www.tandfonline.com/doi/full/10.1016/j.rhm.2015.10.001

 

 

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