An FGM conviction in England may not have been one in Scotland

A woman from Harrow, London lost a bid in the Court of Appeal on 4 July 2024 to have her seven-year sentence reduced, according to the BBC.

The Judgement can be accessed here.

Ironically had the woman been tried in Scotland under the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill, 2019, she may not have been convicted.

The woman had been jailed by the Old Bailey in February 2024 for allowing a three year old girl to undergo FGM during a trip to Kenya in 2006.

The crime came to light more than a decade later when the then 16 year old girl confided in a teacher at school.

Although Prosecutor Deanna Heer KC had acknowledged the “cultural pressure” in place, she argued the woman had “failed to intervene to protect” the girl.

She was the first person to be convicted of taking someone to another country to undergo the practice.

Her lawyers argued that the sentencing judge had failed to understand the cultural context in which she had gone to the so-called “clinic” with the child.

Lord Justice William Davis, sitting with Mrs Justice Sara Cockerill and Mr Justice Thomas Linden, said the child “was a three-year-old far from home when she was mutilated”. He said the mutilation “amounted to causing grievous bodily harm with intent”.

The appeal judge said a prison sentence “could not have been avoided here” and rejected the argument that the sentencing judge did not properly factor in the cultural context.

The appeal was dismissed. 

Ironically, the Scottish Government believes that criminalising failure to protect could potentially impact negatively on individuals, especially women, who do not have the power or agency to protect persons who may be at risk of FGM.

This is controversial and needs analysing.

This case was England’s second successful prosecution for FGM. The first, which I consider a miscarriage of justice, was in 2019. My assessment of it can be accessed here.

It’s time to decriminalise the practice.