Articles on Shifting Sands
Review of UK FGM investigations and trials
The role of the criminal justice system in prosecuting allegations of FGM: a review of “The FGM Detectives” and the recent Old Bailey trial.
The FGM Detectives
The Channel 4 TV documentary broadcast 27 February 2018 was reported and investigated by journalist and news presenter, Cathy Newman. It depicted the failure of a British detective, Leanne Pook, following a two year investigation, to bring a successful prosecution against a Somali father of a six-year-old girl, for allegedly arranging for her to undergo FGM. Although the programme was supportive of the police action right to the end, 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 ones, the important role of the court in not allowing the accused parent to be found guilty, due to 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 them. The investigation was based entirely on the uncorroborated report of a conversation between a taxicab driver, the girl’s father, and a passenger in his cab. The passenger was a member of a Bristol based anti-FGM group Integrate UK, and 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, in addition to being a police officer, was a trustee of Integrate UK. The taxicab passenger reported his conversation with the driver to a more senior person at Integrate UK, 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. As well as 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 evidence enough for them to pursue the case. DCI Pook was very keen on this. That she wanted to be the first to bring a successful FGM prosecution in the UK, emerged strongly during the programme, raising questions about her impartiality. Questions about this aspect were asked only after the trial had collapsed.
The programme was vague as to 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. The father admitted he 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 surely expect other family members, friends, neighbours and other Somali community members close to the 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 UK, where during a discussion, 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 raised. The question of the consequences for the child or her parents of the whole community knowing 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 while driving his taxi.
The only other possible source of evidence sought and shown by the programme, was the girl herself. Investigating her took two forms.
First she was questioned by someone considered 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. 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 five or six school staff. 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 although they are not allowed 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 the girl’s 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 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 so thorough that the victim alone is not relied upon 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 person who first 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, 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.
No evidence of genital cutting
Irrespective of whether the girl had been subjected to any form of FGM, or a pinprick, or not, the facts were that neither a mark, nor a scar, or any other evidence from any person was identified 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 per cent sure there is an injury before she is involved in having someone sent 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 as one. 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 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 piece of paper stuck behind a picture hanging on a wall. The phone number turns out to be the father’s phone number, so not in any way incriminating. How disappointing for the police, who still assert that if you hide something behind a picture frame, 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.
Would the Police really have preferred the child to have been cut?
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 mother’s mobile 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.
The CPS approves a court trial
At this point in the programme, we learn that “the evidence” has been submitted to the Crown Prosecution Service (CPS) for them to consider whether it is enough for criminal charges to be brought. After more speeded up footage of Bristol, of boats on the river this time, and loud, tense music, we learn that the CPS has given permission for a charge of child cruelty to be brought against the father, 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 that 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.
Bristol Crown Court Hearing
The next thing covered by the programme, although far too briefly, is when the evidence is heard in the Bristol Crown Court. 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 UK.
The CPS accepts the judge’s decision, but they also defend themselves 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.
So, if we forget the child and her parents for a minute, there is all round self-justification. 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 the Police protecting children? 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 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.
Read the author’s views of the 2018 Old Bailey Trial and further analysis here.
This is a slightly edited version of the piece written by Marge Berer for The Berer Blog dated 26 March 2018. Republished here with her permission.
Previous writing by The Berer Blog 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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