Female Genital Mutilation Prosecution Guidance
- Casework Handling
- The Legal Framework
- Definitions under the 2003 Act
- Offence of FGM - section 1
- Assisting a girl to mutilate her own genitals - section 2
- Assisting a non-UK person to mutilate a girl’s genitals overseas section 3
- Failing to protect a girl from risk of genital mutilation - section 3A
- Other offences
- Anonymity of Victims
- Evidential Considerations
- Public Interest Considerations
- Contact details for national support agencies and sources of information relating to FGM
- FGM is a criminal offence. It is a form of violence against women and girls, and in the latter case it is child abuse.
- All CPS decisions - whether to charge or to advise no further action (NFA) - must be approved by a Director of Legal Services and all cases notified to the DLS Team upon receipt from the police.
- The Government’s commitment to ending FGM is embedded in the cross-Government Ending Violence against Women and Girls (VAWG) Strategy: 2016 to 2020. The strategy is underpinned by effective partnership working at both a local and national level. The UK Government has signed and ratified the United Nations call to all states to prevent and respond to violence against women: The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
- Prosecutors may find it useful to refer to:
Female genital mutilation (FGM) is a procedure where the female genital organs are injured or changed and there is no medical reason for this. It is frequently a traumatic and violent act for the victim and can cause harm in many ways. The practice can cause severe pain and there may be immediate and/or long-term health consequences, including mental health problems or difficulties in childbirth, causing danger to the child and mother and/or death.
The age at which FGM is carried out varies enormously and may be carried out shortly after birth, during childhood or adolescence, just before marriage or during a woman’s first pregnancy. The victim could therefore be a child or an adult. It may be referred to by different terms which require a linguistic, cultural and/or religious understanding of the significance of the term used.
FGM has been classified by the World Health Organization (WHO) into four types:
- Type I: Clitoridectomy: partial or total removal of the clitoris and/or the prepuce;
- Type II: Excision: partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;
- Type III: Infibulation: narrowing of the vaginal opening through the creation of a covering seal by cutting and reposition the labia minora/majora;
- Type IV: Other: all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing.
Prosecutors should note that the WHO classifications have not been adopted or incorporated into domestic legislation so as to define FGM for the purpose of any offence. Nonetheless, prosecutors should be aware of the WHO classification because they may be used or referred to in FGM resources, or by investigators or experts. The law in England and Wales criminalises a person who excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.
In all cases where FGM is being investigated by the police, the CPS has given a commitment to provide early investigative advice. Accordingly, the police are encouraged to refer every case to the CPS at the earliest stage. All referrals to the CPS must be referred by the CPS Area to the Director of Legal Services’ Team and any CPS decision to charge or advise no further action approved by a Director of Legal Services.
Whilst the criminal law focuses on prosecuting those who commit FGM offences, the focus of FGM Protection Orders (FGMPOs) - a civil law measure - is on protecting victims and those at risk of FGM.
Section 5A(2)(a) and Schedule 2, Part 1 of the 2003 Act provides for the making of FGMPOs in England and Wales. An FGMPO is a family court order which can be made for the purposes of protecting a girl or woman against the commission of an FGM offence - that is, protecting a girl or woman at risk of FGM or protecting a girl or woman against whom an FGM offence has been committed. An application for an FGMPO can be made to the family court by a victim, a relevant third party (currently local authorities) or any other person with the permission of the court. A court can also make an order of its own volition, without an application being made to it, during other family proceedings or in the course of criminal proceedings for an FGM offence. In deciding whether to make an order, a court must take account of all the circumstances of the case including the need to secure the health, safety and well-being of the potential or actual victim. The court can make an order which prohibits, restricts, requires or includes any such other terms as it considers appropriate to stop or change the behaviour or conduct of those who would seek to subject a girl to FGM or have already arranged for, or committed, FGM.
Examples of the content of a FGMPO granted by the court, may include such terms that:
- order the surrender of passports or any other travel documents, including the passport/travel documentation of the girl to be protected;
- prohibit specified persons from entering into any arrangements in the UK or overseas for FGM to be performed on the person to be protected;
- relate to the conduct of the individuals named in the order both inside and outside of England and Wales; and
- covers individuals who are, or may become involved in other respects (instead of the original respondents) and who may commit or attempt to commit FGM against the person to be protected.
An order can also be made against people who are not named in the application for the FGMPO. This is in recognition of the complexity of the issues and the number of people who might be involved in the wider community. FGMPOs can also, once granted, be varied, extended or discharged.
Breach of a FGMPO is a criminal offence. A person guilty of an offence under this paragraph is liable:
- on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; or
- on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine, or both.
If it is suspected that an FGMPO has been breached, the police should investigate. The CPS will then be a responsible for the prosecution of the breach and/or any other offences that might be disclosed.
As an alternative to prosecution, a breach of an FGMPO may be dealt with as a civil contempt of court, which is punishable by up to two years imprisonment, a fine, or both. This may be most appropriate where the breach is “in the face of the court”; otherwise, the police should investigate and the CPS asked to prosecute.
Section 5B of the 2003 Act introduced a legal mandatory duty to report known cases of FGM in girls under the age of 18. The legislation requires regulated health and social care professionals and teachers in England and Wales to make a report to the police where, in the course of their professional duties, they either:
- are informed by a girl under 18 that an act of FGM has been carried out on her; or
- observe physical signs which appear to show that an act of FGM has been carried out on a girl under 18 and they have no reason to believe that the act was necessary for the girl’s physical or mental health or for purposes connected with labour or birth.
For the purposes of the duty, the relevant age is the girl’s age at the time of the disclosure/identification of FGM (i.e. it does not apply where a woman aged 18 or over discloses she had FGM when she was under 18).
Sanctions for not reporting will be determined by the regulatory authority for the relevant professional.
FGM offences are set out in the Female Genital Mutilation Act 2003 (“the 2003 Act”), as amended by the Serious Crime Act 2015.
Definitions under the 2003 Act
- The term “girl” includes “woman”: section 6(1).
- A United Kingdom national is an individual who is:
- a British citizen, a British overseas territories citizen, a British national (overseas) or a British overseas citizen;
- a person who under the British Nationality Act 1981 is a British subject; or
- a British protected person within the meaning of that Act: section 6(2).
- A United Kingdom resident is defined as “an individual who is habitually resident in the UK”. The term “habitually resident” covers a person's ordinary residence, as opposed to a short temporary stay in a country. To be habitually resident in the UK it may not be necessary for all, or any, of the period of residence here to be lawful. Whether a person is habitually resident in the UK should be determined on the facts of the case.
There are four FGM offences under the 2003 Act:
- the primary offence of FGM: section 1
- assisting a girl to mutilate her own genitals: section 2
- assisting a non-UK person to mutilate a girl’s genitals overseas: section 3; and
- failing to protect a girl from the risk of FGM: section 3A.
It is a criminal offence to “excise, infibulate or otherwise mutilate” the whole or any part of a girl's labia majora, labia minora or clitoris: section 1(1).
This is an offence even where the act is done outside the United Kingdom, where it is done by a United Kingdom national or resident, by virtue of section 4 of the 2003 Act.
There is no statutory definition or judicial consideration of the conduct elements of the offence. Each is to be given its ordinary and natural meaning:
- “excise” means to cut out/off, cut away, extract, remove;
- “infibulate” means to close off or obstruct (including suture of) the genitalia and, it is submitted, therefore includes re-infibulation; and
- “mutilate” (according to the Oxford English Dictionary) means “to deprive… of the use of a limb or bodily organ, by dismemberment or otherwise; to cut off or destroy (a limb or organ); to wound severely; or to inflict violent or disfiguring injury on”. “Disfigure” means “to spoil the appearance of” and “disfiguring injury” must be interpreted accordingly. The definition does not suggest that the disfiguring injury should be permanent; any procedure which temporarily spoils the appearance of the genitalia is therefore capable of falling within the definition of “disfiguring injury” and potentially of “mutilation”.
Whether the particular procedure amounts to excision, infibulation or mutilation of the genitalia is a question of fact which should be established by medical and/or other expert evidence.
It follows from the above that the forms of FGM which fall within the WHO Type IV classification may or may not amount to “mutilation” for the purposes of the commission of an offence under section 1(1) of the 2003 Act. Much will depend on the particular circumstances of the case and whether the evidence taken as a whole demonstrates mutilation. Prosecutors must ensure that the evidence is focused on one or more of the three forms of FGM provided for by the 2003 Act.
The following medical procedures are exempted from the offence (sections 1(2)-1(5)):
- A surgical operation on a girl which is necessary for her physical and mental health if performed by a registered medical practitioner.
- In determining whether an operation is necessary for the mental health of a girl it is immaterial whether she or any other person believes that the operation is required as a matter of custom or ritual.
- A surgical operation on a girl who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth if performed by a registered medical practitioner or a registered midwife for a person undergoing a course of training with a view to becoming such practitioner or midwife.
The same medical procedures are also exempted if performed outside the United Kingdom by a person who exercises functions corresponding to those of a registered medical practitioner or, as the case may be, a registered midwife.
Self-mutilation is not an offence, but it is an offence to assist a girl to do so. A person is guilty of an offence if it is proved that:
- a girl has excised, infibulated or otherwise mutilated the whole or any part of her own labia majora, labia minora or clitoris, and
- the suspect has aided, abetted, counselled or procured this.
This is an offence even where any act is done outside the United Kingdom, where it is done by a United Kingdom national or resident, by virtue of section 4 of the Act. Thus, the act of FGM by the girl may take place anywhere in the world and/or the act of aiding, abetting, counselling or procuring it may take place anywhere in the world, provided that the act is done by a United Kingdom national or resident. Aiding, abetting, counselling or procuring can occur by many means, including online.
A person is guilty of an offence if it is proved that:
- excision, infibulation or otherwise mutilation of the whole or any part of a girl’s labia major, labia minora or clitoris has taken place, and
- the girl is a United Kingdom national or a United Kingdom resident, and
- this was done by a person who is not a United Kingdom national or a United Kingdom resident, and
- this act of female genital mutilation took place outside the United Kingdom, and
- the suspect aided, abetted, counselled or procured this.
Sections 1 and 2 of the Act address a suspect doing FGM themselves, or a girl committing the act and the suspect aiding, abetting, procuring or counselling this: in cases where the act and/or the aiding/abetting/counselling/procuring is by a United Kingdom national or resident, it is an offence irrespective of where either of those acts was done in the world. Section 3 however covers a person who is not a United Kingdom resident or national doing the act of FGM, and who does the act anywhere in the world, providing that any aider and abettor to that act of FGM will be liable where the victim is a United Kingdom national or resident.
If an offence under sections 1, 2 or 3 of the 2003 Act is committed against a girl under the age of 16, then each person who is responsible for her will be potentially liable if they knew, or ought to have known, that there was a significant risk of FGM being carried out but did not take reasonable steps to prevent it from happening. Note that “under 16” is the threshold for this offence, as distinct from “under 18” which has been used for the duty to report and the public interest factors, elsewhere in this guidance.
This offence can be committed wholly or partly outside the United Kingdom by a person who is a United Kingdom national or resident: neither the culpable failure nor the FGM need to take place within the jurisdiction.
Responsibility under section 3A of the 2003 Act arises in either of two situations:
- the person has parental responsibility for the girl and has frequent contact with her at the relevant time (when the FGM occurs). Frequent contact is treated as continuing if the girl temporarily stays elsewhere; or
- the person is aged 18 or over and has assumed, and not relinquished, responsibility for caring for the girl in the manner of a parent at the relevant time (when the FGM occurs).
It is a defence for a defendant to show that either:
- at the relevant time (when the FGM occurs), the defendant did not think that there was a significant risk of FGM being committed against the girl, and could not reasonably have been expected to be aware that there was any such risk; or
- the defendant took such steps as they could reasonably have been expected to take to protect the girl from being the victim of an FGM offence at the relevant time (when the FGM occurs).
There is an evidential burden on the defendant to raise these defences but, once raised, the prosecution must prove the contrary to the criminal standard of proof.
Where the defendant offers the defence of having taken reasonable steps to protect the girl from being the victim of an FGM offence, what constitutes reasonable steps will depend on the circumstances in each case. For example, the steps considered reasonable for a woman to take in the case where her overbearing and violent husband or another family member had arranged for FGM to be carried out on her daughter may well differ from those taken by a woman who is not subjected to those pressures. It is important to make an assessment on a case by case basis.
There may be clear evidence that a girl has been the subject of FGM but more than one person in the household could be responsible. Prosecutors will consider the evidence that one person was responsible or whether a joint enterprise existed. Guidance on joint enterprise in these circumstances can be gained from the following cases:
R v Abbott (1955) 29 Cr.App.R. 141:
“If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence they were acting in concert, the jury ought to return a verdict of not guilty in the case of both as the prosecution have not proved the case.”
R v Strudwick and Merry 99 Cr.App.R. 326: lies told by one or other of the parents as to the cause of injury may support a prosecution case but they do not, without more, make a positive case of the crime in question.
Where joint enterprise cannot be established, the prosecution should consider the evidence in support of the section 3A offence.
Those who have parental responsibility and the means by which they can acquire it are set out in section 2 Children Act 1989. It includes, for example:
- a child’s biological mother;
- a father who is married to the mother of the child when the child is born;
- an unmarried father registered on the child’s birth certificate at the time of their birth;
- guardians; and
- persons named in a Child Arrangements Order.
The requirement for frequent contact is intended to ensure that a person who, in law, has parental responsibility for a girl, but in practice has little or no contact with her, would not be liable. For example, where the parents of a girl are separated and live apart, with one parent having little or no contact with their daughter, the parent with little or no contact would not be liable for the offence. Similarly, where an adult cares for a girl in the “manner of a parent”, this is intended to ensure that a person who is looking after a girl for a very short period – such as a babysitter – would not be liable. Nor would it cover teachers, working in their professional capacity. A person who assumed responsibility for caring for the girl in the manner of a parent can include, for example, grandparents with whom the girl has gone to stay for an extended summer holiday. In such circumstances those persons with parental responsibility for the girl would continue to be liable for the offence as a result of section 3A(7).
Where the FGM and/or the culpable acts of a suspect occurred outside England and Wales, the first step is to ask whether the suspect is a United Kingdom national or resident and to consider the evidence on this point carefully.
If the suspect is a UK national or resident, then the effect of section 4(1) is that there is jurisdiction to prosecute, wherever in the world the following conduct is alleged to have taken place:
- the suspect personally committed the act of FGM on the victim
- the suspect aided or abetted the victim to commit FGM on herself
- the suspect aided or abetted another to commit FGM
- the suspect failed to protect a girl from FGM
In each case, the nationality or residence of the suspect provides for jurisdiction, wherever the culpable act (personally committing the offence; aiding or abetting a victim; aiding or abetting another; failing to protect) or the act of FGM occurred.
This is the case, regardless of the nationality or residence of the victim.
In cases which involve a non-UK national or resident, in addition to liability for FGM undertaken in England and Wales, the following should be considered:
- if there is a substantial connection with the jurisdiction, if a substantial number of the activities constituting the crime, take place within England and Wales, then the courts in England and Wales will have jurisdiction, unless it can be argued, on a reasonable view, that the conduct ought to be dealt with by the courts of another country: v. Smith (Wallace Duncan) (No. 4)  2 Cr.App.R. 17, CA.
- if a person:
- agrees with another, or does an act or omission in pursuance of such an agreement, whilst in England or Wales,
- that agreement is that a course of conduct would involve an act or an event outside England or Wales;
- that act or event would amount to an FGM offence, contrary to the law of that country (thus requiring proof of the same);
- that agreement would be triable as a section 1 conspiracy Criminal Law Act 1977 conspiracy but for the extraterritorial element,
they commit an offence contrary to section 1A Criminal Law Act 1977. This offence requires Attorney General’s consent to prosecute. Prosecutors should consult Foreign and Commonwealth Office resources and/or the International Justice and Organised Crime Division to obtain the position and if necessary evidence of the actual legal position in the country concerned.
- a conspiracy contrary to section 1 Criminal Law Act 1977 to commit FGM in England and Wales can be tried in England and Wales even if the agreement is formed outside: Somchai Liangsiriprasert v Government of the United States of America  1 A.C. 225, PC;Sansom  2 Q.B. 130.
- if a person does acts wholly or partly in England and Wales and knows or believes that what they anticipate might take place wholly or partly in a place outside England and Wales, and the anticipated offence is one contrary to the 2003 Act, that person is liable to prosecution for encouraging or assisting an offence pursuant to Part 2 and Schedule 4 of the Serious Crime Act 2007. This requires Attorney General’s consent to prosecute.
If the trial issue, or one of the trial issues, identified is that the conduct did not amount to “mutilation”, prosecutors should consider whether a charge contrary to section 18, or section 47, of the Offences Against the Person Act 1861 is more appropriate. These offences would apply where the evidence supports an allegation that:
- really serious bodily harm, or actual harm, was caused. This need not be permanent or dangerous, or have lasting consequences. In assessing whether the harm was “grievous”, account should be taken of the effect on the individual. This includes psychiatric but not psychological injury. The assessment of harm is for a jury, applying contemporary social standard: Golding  EWCA Crim 889. Bollom  EWCA Crim 2846 confirms that this is to be assessed with reference to the characteristics (including age and health) of the particular victim. “Actual harm” means injury which is more than transient and trifling; or
- wounding, namely a break in the continuity of the whole skin has occurred.
Equally, for an allegation contrary to section 3A where the issue, or one of the issues identified, is “mutilation”, then consideration may be given to the additional or alternative charge contrary at section 5, Domestic Violence, Crime and Victims Act 2004 of causing or allowing a child to suffer serious physical harm.
One of the reasons why victims of FGM may be reluctant to come forward and report the crime is because of the risk of being identified as a victim of such a personal and sensitive crime. Giving victims the protection that lifelong anonymity affords is intended to encourage more victims to come forward to report this crime.
Anonymity commences as soon as an allegation of FGM is made by the victim. This ensures that the victim is protected whatever the outcome of the investigation or prosecution.
Section 4A and Schedule 1 of the 2003 Act set out provisions for the anonymity of victims of FGM. The effect is to prohibit the publication of any matter that would be likely to lead members of the public to identify a person as the alleged victim of any offence under the 2003 Act. The prohibition lasts for the lifetime of the alleged victim. The prohibition covers not just immediate identifying information such as the name and address or a photograph of the alleged victim, but any other information which, whether on its own or pieced together with other information, would be likely to lead members of the public to identify the alleged victim. A restriction on the reporting of the defendants’ identities may be appropriate where it is proposed that it is to be reported that they are the parents of the victim and other information, such as the location of the incident or people who have subsequently become responsible for the care of the victim, may also be subject to reporting restrictions. “Publication” is given a broad meaning and would include traditional print media, broadcasting and social media such as Twitter or Facebook.
Exceptions to anonymity
There are two limited circumstances where the court may dis-apply the restrictions on publication:
- the first is where a person being tried for an FGM offence could have their defence substantially prejudiced if the restriction to prevent identification of the person against whom the allegation of FGM was committed is not lifted;
- the second is where preventing identification of the person against whom the allegation of FGM was committed could impose a substantial and unreasonable restriction on the reporting of the proceedings and it is therefore considered in the public interest to remove this restriction.
Breach of the restrictions
Where anything is included in a publication which contravenes the anonymity provisions in place for an alleged victim of FGM, each person responsible for the publication is guilty of an offence. A person found guilty of such an offence is liable on summary conviction in England and Wales to a fine. It will not be necessary for the prosecution to show that the defendant intended to identify the victim.
In relation to newspapers, other periodicals (whether in print form or online editions), radio and television programmes, the offence is directed at proprietors, editors, publishers or broadcasters rather than individual journalists. Any prosecution for the offence requires the consent of the Attorney General.
There are two defences to this offence:
- the first is where the defendant had no knowledge (and no reason to suspect) that the publication included the relevant content or that a relevant allegation had been made which would be likely to identify a victim;
- the second is where the victim (where aged 16 or over) had freely given written consent to the publication.
These defences impose a reverse burden on the defendant. It is for the defendant to prove that the defence is made out on a balance of probabilities.
When providing early investigative advice, prosecutors should consider formally addressing the following matters in the case:
- If jurisdiction is in issue, this is a difficult legal and factual issue which must be resolved so that the investigation is clear from the outset of its jurisdictional basis. See above. This may be founded on establishing that culpable acts have occurred in England and Wales. Otherwise the nationality or residence of the suspect will become important. Thereafter, inchoate offences should be considered.
- The role of the suspect or suspects should be addressed. Is joint enterprise alleged? Or did a suspect fail to protect the victim? What does the evidence show about the actions, intentions and/or thoughts concerning risk of each suspect?
- Appropriate expert evidence. Prosecutors should assist in identifying with precision the questions an appropriate expert instructed by the police should address, see further below.
When reviewing a case at the evidential stage of the Full Code test, prosecutors should consider the following questions:
- does the alleged FGM procedure amount to the excision, infibulation or mutilation of the whole or any part of the labia majora, labia minora or the clitoris? There will need to be clear and precise expert medical evidence to establish this, whereby the expert explains how the conclusion that excision, infibulation and/or mutilation can be observed: for instance, from a gynaecologist or paediatric gynaecologist who is able to give evidence in court in compliance with the requirements for experts. As above, what they must be asked to give evidence concerns excision, infibulation or mutilation and not the WHO definitions.
- prosecutors should also consider whether the possibility of non-accidental injury needs to be addressed. If so, a different expert may be needed to address this separate question: a pathologist or paediatric pathologist.
- if the expert medical evidence does suggest that non-accidental excision, infibulation or mutilation has taken place, prosecutors should then go on to consider whether the medical exceptions (statutory defences) in section 1(2) apply. Again, expert evidence should confirm whether or not the procedure was necessary for the victim’s physical or mental health, addressing the medical exceptions explicitly, if this is a live issue.
- if the first two questions (and, if relevant, the third) conclude that FGM has occurred, then FGM can be proved to have occurred. An early meeting, documented in accordance with the disclosure obligations of the prosecution, should take place to understand the expert evidence of FGM, non-accidental injury and/or non-necessary medical procedure.
- prosecutors should have regard to the Criminal Procedure Rules, the Practice Direction and the CPS guidance to experts.
- prosecutors should then turn to consider the available evidence that the suspect was culpable for the FGM by act or omission, depending on the offence(s) under consideration.
Prosecutors should be aware that someone subjected to FGM may also have been the victim of other offences, for example, rape, other sexual offences, assault, forced marriage or other forms of domestic abuse. It is also possible that they may have been subjected to controlling and coercive behaviour from, for example, their spouse and/or other family members. Where the victim of FGM is under 18, they may have also been a victim, for example, of ill treatment/child cruelty. Prosecutors should ensure any additional or alternate offence is considered carefully and reflected amongst the charges in accordance with Part 6 of the Code.
The prosecution does not have to prove motive in criminal proceedings but evidence may also be sought, as appropriate, as to why FGM was (or might have been) performed, or indeed to explain FGM to the jury. Admissible evidence which shows the suspect’s culpability may be acquired through knowledge of their views or beliefs as to why FGM was to be undertaken. Prosecutors should consider whether expert evidence would assist a jury with matters outside their knowledge, such as expert evidence of ritual or religion, or whether the suspect’s belief can readily be demonstrated to a jury, for instance, through communication by the suspect indicating that they held a particular view such as the need to control sexuality, which may be an indicator of why FGM came to be practised. Whilst prosecutors do not have to prove the reasons as to why FGM took place, and should only do so if there is satisfactory evidence in support of this case theory, some of the possible reasons given are that it:
- brings status and respect to the girl;
- preserves a girl’s virginity/chastity;
- is part of being a woman;
- is a rite of passage;
- gives a girl social acceptance, especially for marriage;
- upholds the family “honour”;
- cleanses and purifies the girl;
- gives the girl and her family a sense of belonging to the community;
- fulfils a religious requirement believed to exist;
- perpetuates a custom/tradition;
- helps girls and women to be clean and hygienic;
- is aesthetically desirable;
- makes childbirth safer for the infant; and
- rids the family of bad luck or evil spirits.
Prosecutors should consider presenting the medical evidence in graphic form suitable for a jury from the earliest point, including pre-charge. The explanation of injuries to a jury, agreed with an expert, should be an evidential priority as should the evidence relevant to the culpability of the suspect(s), such as graphic representations of the crime scene and/or the evidence of the location of the suspects at the material time.
The indictment should allege whether excision, infibulation or mutilation is alleged and whether one or more is alleged. “Otherwise mutilates” indicates that the central focus may be to allege mutilation, specifying in the indictment or otherwise in the evidence the form mutilation has taken.
In a case where victims and witnesses (for clarity, reference will be made to victims henceforth but there may be other witnesses who should receive the same level of support) can also provide evidence of being subjected to FGM, it is important to ensure that they receive support. Police and prosecutors should recognise that these cases will often involve vulnerable victims who may have had little or no dealings with the criminal justice process. Victims of FGM can often retain a loyalty to their family/community and this may make them reluctant to support a prosecution.
Given that FGM is often carried out by a family who believe it is beneficial and in a girl or woman’s best interests, the victim may require support both during the prosecution but also after the case has concluded. Victims of FGM are entitled to support under The Code of Practice for Victims of Crime: CPS Legal Guidance (Victim’s Code). Police and prosecutors will comply with their responsibilities as set out in the Victim’s Code.
Prosecutors must regard to the fact that:
- a victim of FGM is entitled to life-long anonymity (see section “Anonymity of Victims” above);
- they are eligible for assistance on grounds of age or incapacity (section 16, Youth Justice and Criminal Evidence Act 1999);
- they are eligible for assistance on grounds of fear or distress about testifying (section 17, Youth Justice and Criminal Evidence Act 1999).
The legal guidance entitled “Special Measures” should be considered and applied. The special measures sought by the victim should be carefully considered by the prosecutor, taking account of the views of the victim and any relevant material provided by the police. If appropriate, a Special Measures Meeting with the victim should take place.
The need for an intermediary should also be considered and arrangements put in place as soon as possible. Prosecutors should, before the evidential interview of the victim, hold an Early Special Measures discussion with the investigating officer and reviewing lawyer. The purpose of these discussions is to reach agreement on the form of the evidence to be obtained and which special measures are appropriate, including any intermediary provision needed to assist during the interview and at the trial. The reviewing lawyer should ensure that such discussions take place in every FGM case where the victim is to give evidence. If an intermediary is not engaged at this stage then prosecutors should consider such engagement as soon as any issues with communication are raised or identified post charge.
To give a vulnerable or intimidated victim confidence in giving evidence, court procedure and the manner of cross-examination may need to be modified in accordance with “Advocacy and the Vulnerable” training devised by the Inns of Court College of Advocacy (ICCA). The needs of the victim should be considered by the judge at a Ground Rules Hearing (GRH) which must be held in every case involving a vulnerable and/or intimidated victim. Consideration should be given as to whether the victim should be required to give evidence at all, or otherwise to what extent.
The prosecuting advocate should ensure that directions made by the judge at the GRH are complied with. These may include directions in respect of:
- the nature and extent of the questions to be asked in cross-examination, especially the manner in which the defence case is to be put;
- the defence advocate having to reduce their questions in cross-examination into writing before the trial for the judge’s approval;
- whether or not alleged inconsistencies in the victim’s account or other potential undermining material and/or the content of third party material needs to be put to the victim at all rather than being placed before the jury, external to cross-examination;
- apportionment of the topics which need to be covered in cross-examination between advocates in cases where there is more than one accused so as to avoid repetitive questioning; and
- the general care of the victim such as when and where they will be shown their video interview, when, where and how the parties (and the judge if identified) intend to introduce themselves, the length of questioning and frequency of breaks.
Prosecutors should ensure that the advocate instructed has been provided with all relevant information about the victim and uses the online resources at the Advocate’s Gateway developed by ICCA. Whilst not mandatory, the prosecutor may feel it is highly desirable that the advocate instructed has undergone the “Advocacy and the Vulnerable” training.
Allied to the procedures above, prosecutors should be familiar with the provision, and guidance, for the competence of child witnesses in section 53 Youth Justice and Criminal Evidence Act 1999 and R v B  EWCA Crim 4.
Aside from assistance when giving evidence, prosecutors should also ensure victims are generally assisted appropriately according to their specific needs (age, maturity, disability, ethnic minority, background etc), including whether any involvement is available and can be offered by specialist support organisations.
In some cases, a pre-trial witness interview may be appropriate if the prosecutor considers it would assist in assessing the reliability of the victim’s evidence and/or in understanding complex evidence (see the legal guidance: “Pre-trial Witness Interviews – Guidance for Prosecutors”).
Where the defendants are on bail, prosecutors should consider whether or not bail conditions are necessary to prevent interference with the victim. Any breaches of bail should be dealt with robustly.
Prosecutors should consider the following if a victim indicates that they wish to retract their evidence or withdraw their support for the prosecution:
- is there any reason to believe that the victim might have been threatened, pressurised or intimidated which has caused them to fear giving evidence and has led to them retracting their evidence or withdrawing from the proceedings?
- has a risk assessment been conducted by the police or other agency and has this been made available?
- has a support representative been working with the victim? What risks were identified? What were the support organisations’ views?
If the victim resolutely refuses to support the prosecution, the following should be considered:
- continuing the case without the victim, particularly if there is sufficient evidence capable of proving the suspect’s act or omission. Prosecutors should consider carefully whether they are capable of proving the case without evidence from the victim;
- using the hearsay provisions to adduce the victim’s evidence. In particular, consideration should be given to whether the res gestae exception has been made out or if there is clear evidence of fear pursuant to section 116(2)(e), Criminal Justice Act 2003;
- obtaining a risk assessment from the police which should be informed, if possible, by input from those caring for or supporting the victim, and (if stopping the case is not inevitable or the most appropriate way to conclude the case) compelling them to attend by use of a witness summons and, only where appropriate (which must also be addressed by the risk assessment), a warrant.
In cases where interpreters are needed, the utmost care must be taken in the selection of an interpreter to ensure that they have a complete understanding of the language/dialect of the victim, their culture and, where possible, are sensitised to the issues surrounding gender-based violence in BAME communities. Selection of an appropriate interpreter is essential given the potential risks of the victim’s account of the crime committed being inappropriately disclosed to the perpetrators and/or other community members or for the victim to be threatened or intimidated by the interpreter. The investigator should ensure that the victim is content with the interpreter selected.
Provided that the Criminal Procedure Rules and the expert’s duties of disclosure are satisfied, the focus of the case is unlikely to be that FGM did or did not occur. Focus is more likely to be on the identity of those responsible by act or omission. Prosecutors should identify likely relevant, and disclosable, material which relates to the evidence on which the prosecution rely in support of the offence committed.
In a case where the credibility of the victim or a witness is likely to be in issue, prosecutors should consider both material in the possession of the prosecution (including any previous contact with the police, and any seized electronic material and the proposals for analysing it) and should also identify reasonable lines of enquiry and locate and obtain relevant material. In cases involving a young victim of FGM, the local authority or social services are likely to have material or information which might be relevant to the prosecution case. Prosecutors should therefore take steps to obtain it. For further guidance see: The 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.
In a case involving digital material, prosecutors should consider reasonable lines of enquiry which are likely to identify material probative of involvement, or lack of involvement, in committing FGM.
As in any case, prosecutors should ensure that expert evidence is admissible and assists the jury in determining the issues in the case, having regard to:
- compliance with the Criminal Procedure Rules requirements, the Guidance Booklet for Experts and other available guidance;
- the real issues in the case and whether an expert will assist the jury with matters outside their knowledge or will only make an issue which is readily explained in lay terms more complicated;
- the weight attached to the evidence: for instance, has the expert addressed other possible explanations? Has the expert identified whether there is a difference of opinion on the issue at hand?
- whether, if appropriate, there are other experts outside the UK who are suitable for instruction?
- the duty of the expert to the court and not to the party who has instructed the expert.
Evidence from the Family Courts or evidence which has been considered for a FGM Protection Order (FGMPO) may also be helpful in shedding light on the likely evidence to be heard in the criminal trial. It may, for example, identify further evidence which should be sought by the investigators and/or potential relevant material to be reviewed for disclosure purposes. Witnesses in the criminal trial may already have given evidence to the Family Court. This material should be obtained as soon as possible, with both police and prosecutor liaising with the local authority.
In cases where FGM has been carried out overseas, prosecutors should ensure that police-to-police enquiries are made and, where potential evidence is identified, use prosecutorial powers to obtain it (European Investigative Order or Letter of Request). Evidence may be obtained from travel or flight records or from the Home Office Border Force. Assistance as to how enquiries can be made and progressed may be provided by the International Justice and Organised Crime Division of the CPS.
In cases of FGM, where there is sufficient evidence to support a prosecution, it is highly likely to be in the public interest to prosecute. Each case, however, must be considered on its own facts and merits. When considering the public interest stage of the Full Code Test, prosecutors should always take into account the circumstances and views of the victim.
Particular considerations arise in relation to piercing and cosmetic surgery.
The piercing of the female genitalia to adorn it with jewellery or other accessories purely for the purpose of personal decoration or in order to enhance the sensation of sexual contact, as commonly understood and practised, is unlikely to involve excision, infibulation or mutilation. In respect of the dictionary definition provided above, it does not as commonly understood involve invasion, destruction, wounding, violence or disfiguration so as to amount to mutilation. An allegation founded on genital piercing is unlikely to meet the evidential stage required for a prosecution under the 2003 Act. However, each case must be considered on its own facts and merits and the medical evidence carefully considered.
A person cannot consent to conduct that involves actual or grievous bodily harm contrary to sections 47, 20 and 18 of the Offences Against the Person Act 1861 unless good reason is established: R v Brown (Anthony)  1 AC 212. In M(B)  EWCA Crim 560 the Court of Appeal confirmed that good reason applies not just to ear piercing but other bodily piercings and adornments, as distinct from body modification. Accordingly, where a woman agrees by choice to a genital piercing, and has the freedom and capacity to make that choice, an assault charge is unlikely to be appropriate. Conversely, an assault charge should be considered where the evidence demonstrates an absence of consent. Prosecutors should challenge any claim that that there is “good reason” for consent to apply as a defence in relation to a girl under 18 years of age as opposed to a woman. A further charge may be available in Wales, namely one contrary to section 95 of the Public Health (Wales) Act 2017, which criminalises the piercing of children under the age of 18.
Cosmetic surgery, as commonly understood and practised in the form of labiaplasty, involves surgery to excise labial tissue to make the labia minora smaller. There are numerous surgical descriptions of techniques but all involve removal, and therefore excision, of labial tissue. Cosmetic surgery is accordingly likely to be caught by the definition provided for by the 2003 Act.
Prosecutors should therefore proceed to consider whether the medical exceptions provided for by the 2003 Act apply. Section 1(2)(a), which concerns a surgical operation necessary for physical or mental health, may apply. Prosecutors should consider the evidence of necessity. This may include psychological reasons for the surgery which mean that the surgery will have a therapeutic element. Notwithstanding that the surgery has a cosmetic element, if there is some evidence available of medical reason for the procedure, this defence may apply. However, it is unlikely to apply where the surgery is purely to alter the appearance of the genitals. A prosecutor must bear in mind that this defence must be disproved beyond reasonable doubt, and must consider whether or not a jury is more likely than not to be sure it cannot be established.
Where, unusually, there is evidence that piercing amounts to mutilation, or cosmetic surgery occurs with excision and without evidence of health necessity being demonstrated, prosecutors should go on to consider the following public interest factors. Prosecutors must begin with the provisions of the Code for Crown Prosecutors. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.
The next factor is whether the victim was under 18 years of age. If so, a prosecution is highly likely to be in the public interest. If, however, the victim was 18 years of age or over, having considered the factors provided for by the Code, having obtained all relevant information to inform the decision and considering the case on its own facts and merits, prosecutors may further apply the following factors in piercing and cosmetic surgery cases:
|Tending in favour of a prosecution in the public interest||Tending against a prosecution in the public interest|
The victim supports a prosecution, taking into account the reasons why
The victim does not support a prosecution, taking into account the reasons why
A relatively severe and invasive procedure
A relatively non-severe and non-invasive procedure
Significant physical/mental harm caused to the victim
Limited physical/mental harm caused to the victim
A real risk of future harm
A negligible risk of future harm
A real impact on the victim’s quality of life
A negligible impact on the victim’s quality of life
No medical benefit to the procedure
Some medical benefit to the procedure
Incompetent performance of the procedure (whether or not it contributed to or caused the factors above)
Evidence that the procedure was carried out with appropriate professional expertise, with the use of suitable equipment and in a suitable location
The person performing the procedure was not medically qualified and/or not experienced and did not follow clinical guidelines
The person performing the procedure was medically qualified and experienced and followed clinical guidelines
No, or a lack of, documented evidence of the victim’s capacity and freedom to consent and fully informed consent (relevant to this factor would be evidence that the victim was susceptible to coercion, pressure or influences from third parties, or that this followed custom and ritual – but the factor may be present even in the absence of these)
Documented evidence of the victim’s capacity and freedom to consent and fully informed consent
No, or a lack of, documented evidence that the suspect:
Evidence that the suspect:
Evidence of marketing and advertising to women
An absence of marketing or advertising to women
Evidence of inaccurate claims in the marketing and advertising
An absence of evidence of inaccurate claims in the marketing and advertising
Evidence of a financial benefit or incentive to the offence
An absence of a financial benefit or incentive to the offence
It is submitted that the above factors may also assist a prosecutor when assessing whether a person is capable of giving consent, whether in fact it was present and to what consent had been given (and not given) where relevant at the evidential stage to piercing and cosmetic surgery allegations.
A person guilty of an offence under sections 1, 2 and 3 of the 2003 Act is liable:
- on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine (or both);
- on summary conviction, to imprisonment for a term not exceeding six months or a fine (or both).
A person guilty of an offence under section 3A of the 2003 Act is liable, in England and Wales:
- on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both);
- on summary conviction, to imprisonment for a term not exceeding six months or a fine (or both).
A person guilty of an offence under section 4A of the 2003 Act in England and Wales is liable on summary conviction to a fine.
National Society for the Prevention of Cruelty to Children (NSPCC) FGM helpline
Telephone: 0808 028 3550
National FGM Centre
Project Azure / Continuous Policing Improvement Command
Child Protection Helpline
Telephone: 0808 800 5000 (advice for adults worried about a child)
Home Office FGM Unit
Foundation for Women's Health Research & Development (FORWARD)
Telephone: 020 8960 4000
Daughters of Eve
Iranian and Kurdish Women's Rights Organisation
Telephone: 0800 1111 (24 hr free helpline for children)
FGM National Clinical Group