How much is the CPS to blame for not prosecuting perpetrators of FGM?

The assertion that thousands of British Muslim girls are getting mutilated with the passive acquiescence of the police and CPS seems to have settled  into public consciousness as a matter of established fact. Last month the Crown Prosecution Service proudly tweeted that it was:

“Prosecuting more people than ever for hate crime and ensuring they receive tougher sentences.”

The response to the tweet was instructive. I haven’t read through all 671 replies. One or two questioned whether it was actually proper or desirable for the CPS to be “ensuring heavier sentences,” but the tone of a huge proportion was the same: why are you bragging about prosecuting hate crime when you haven’t prosecuted anyone successfully for FGM?

Here for example, was Jonathan Nicholas, a former police officer, now a writer, who used to work as a beat officer in a Nottingham hospital:

Why no prosecutions for #FGM? Is it because your Saudi paymasters won’t allow it?

Anyone reading his tweet and the screen-shot (I am afraid the latter is not easy to read on this blog) without further explanation would be likely to interpret it in only one way: that 5,391 women had been subjected to FGM in England between March 2016 and April 2017.

In fact, Mr Nicholas’s figure of 5,391 is quite modest. A more popular figure is 9,179, sometimes quoted as the rounded down figure of 9,000. Here, for example is Brian Silvester, a UKIP councillor and enthusiastic tweeter:

“9000 FGM cases in England last yr. It is a crime to allow it to happen. A child can’t prevent the prosecution. Police need to act on #FGM.”

Earlier this month a report for BBC Newsnight by Dr Faye Kirkland highlighted concerns that innocent families were being subjected to distressing and intrusive investigations by social workers, with children being put onto child protection plans or even taken into foster care for months while awaiting medical examinations for FGM. One mother found herself coming under suspicion after she simply asked her midwife a question about FGM. One can see the midwife’s dilemma: if she fails to report when she has a suspicion, a child could suffer FGM. If she does report and the family is innocent, her report will potentially cause huge distress and upset for no good reason. In addition, since 2015 any healthcare professional who discovers that an act of female genital mutilation has been carried out on a girl under the age of 18 is under a duty to report it. There is in fact no duty to report every suspicion, but it would hardly be surprising if doctors and midwives erred on the side of caution.

The practice of cutting out a girl’s clitoris or sewing up her labia is of course barbaric. Anyone doing so, or encouraging or arranging for anyone else to do so is committing a serious criminal offence and deserves a heavy punishment.

Nor can anyone doubt that FGM is a very serious problem in some parts of the world, particularly in much of Africa. But how great is the risk to children living in Britain? The simple answer is that nobody knows. There are certainly many women living here who have undergone FGM abroad, but that does not tell us how many girls living in Britain are actually cut here.

A lack of evidence has not stopped people who should know better presenting wild speculation as fact. According to the Home Office Select Committee Report on FGM which was produced in 2016:

“While agencies play pass the parcel of responsibility, young girls are being mutilated every hour of every day.”

Whether the “every hour of every day” assertion was meant as pure hyperbole or whether it was meant as actual fact was not made clear. The Department of Health’s 2015 – 16 Enhanced Dataset of FGM statistics reported that in the 12 months to April 2016 there were 8,656 attendances at NHS trusts where a woman was “identified with FGM or a procedure for FGM was undertaken.” If we divide the number of hours in the year by 8,656 the answer comes out at about 1 per hour.

The then Chairman, Keith Vaz, spoke for many, and spoke from a position of either unforgiveable ignorance or of wilful alarmism, when he said:

This barbaric crime which is committed daily on such a huge scale across the UK cannot continue to go unpunished.”

The most recent Department of Health report on the prevalence of FGM in England is for the year April 2016 – March 2017. It records that:

Between April 2016 and March 2017 there were 9,179 attendances reported at NHS trusts and GP practices where FGM was identified or a procedure for FGM was undertaken.”

This “9,000” figure (whether rounded up from the 2016 figures or down from the 2017 figures) has been widely taken up by feminists, politicians of all parties and anti-Islamic activists, and it sounds horrifying. 9,000 cases of FGM in 12 months and not a single person prosecuted. Clearly, if that were the case we would be looking at a catastrophic state of affairs in our own country.

On 16 July 2016 Vaz asked a round-table discussion on FGM held at the House of Commons :

“Why are the police not arresting and charging all these cutters who we know exist and are running round the country cutting up little girls.”

And it would have been a good question, had there been clear evidence of “cutters running around the country cutting little girls.”

We need to be careful. The recording of FGM statistics by the NHS is in its infancy. The statistics are described as “experimental” and the latest report is riddled with warnings about how incomplete they are, and about how much is unknown. They certainly do not in themselves “prove” that 9,000 (or indeed 100,000) girls were not cut.

We need to look closely at what the 9,000 figure actually means, and just as importantly what it does not mean, because it is so often quoted or referenced. It does not relate to acts of FGM carried out between March 2016 and July 2017. It relates to a total of 9,179 attendances at NHS trusts by women who had at some point in their lives undergone FGM. Most had undergone FGM many years earlier. The average age of the women was 31 and the overwhelming majority, 95%, had their FGM carried out when they were under 18.

Even the lower figure of 5,391 “newly recorded cases of FGM 2016-17” quoted by Mr Nicholas does not tell us anything about the numbers of girls being subjected to FGM in Britain in the relevant 12 month period. Again, most of these women were adults who had had their FGM performed many years earlier. They are only newly recorded because they were recorded by the NHS for the first time in the relevant year. Very few people are disputing that thousands of women are suffering from the effects of FGM in this country. It is clearly a very serious problem. Yet the debate is not helped in any way when politicians of left and right alike join with twittermob Islam-haters to pick out misunderstood statistics and use them without proper explanation to support a false argument.

The “young girls are being mutilated every hour of every day” quote may originally have been an off the cuff soundbite by Mr Vaz, a man who is not immune to saying, and indeed doing, stupid things; but then it found its way into the Select Committee Report itself, unsourced, unchallenged, unexplained and as a result it seems endorsed by all the other members of the Committee.

Where the facts are actually known most of the women identified with FGM in the 2016-17 Dataset were not born in this country (96%), and did not have their FGM carried out in this country (also 96%). 87% were both born and underwent it outside Britain. It is probably reasonable to assume that most are immigrants who were subjected to FGM before they ever came to Britain. That does not mean it is not a terrible problem for those women, but it is absurd to blame the CPS or the police for inaction based on statistics showing that they have not prosecuted unknown cutters in Africa, for mutilating young girls who at the time of the cutting had no connection with this country at all.

Is it nevertheless possible that a large number of cases of FGM are taking place in Britain under the radar? Yes it is. The data is clearly incomplete and in many cases even the statistics that we do have do not reveal either the country of the woman’s birth or the place that they had the FGM carried out. So it is possible that many British cases are taking place undetected. But merely because something is possible does not mean that we should assume that it is happening. In fact it does not seem very likely. Dr Catherine White of the Manchester Sexual Assault Referral Centre, one of three specialist centres in the UK where children are examined for FGM, told Newsnight:

I think if certain types of FGM were being done at the rates that we were perhaps led to expect we would be seeing cases coming through with infection or bleeding, they would be ending up in front of healthcare professionals and then being referred to us. And that just hasn’t happened – not here in Greater Manchester anyway.”

It is often said that FGM is not detected because it is a “hidden crime.” Girls who have been subjected to it are unlikely to reveal the fact to others, and family members are unlikely to give evidence against perpetrators. No doubt there is a great deal of truth in that. On the other hand, exactly the same can be said for the sexual abuse of children, yet that has not prevented thousands of prosecutions every year. In one way the detection of FGM should be somewhat easier than of sexual abuse. The most serious types of FGM should be detectable by a medical examination in a way that sexual abuse very often is not. Thousands of children are medically examined for all sorts of reasons, mandatory reporting of FGM has been in place for nearly 2 years. The numbers of cases of FGM reported in the 2016-17 Report as having been carried out in Britain was 57, of which somewhere between 45 and 55 were on adult women.

It is also possible that a large number of British girls have been transported out of the country to be mutilated abroad, during the notorious so-called “cutting season.” That indeed is the contention of many. For example the charity Plan International UK claims:

For potentially thousands of girls in the UK the summer holidays mark the arrival of ‘cutting season’, when they are flown abroad to undergo FGM. It’s a practice that is becoming more apparent and one that keeps FGM in the UK under the radar.”

But whilst, again,that is possible – and one notes the slightly weaselly word “potentially”- the actual figures we have do nothing to support the idea. No doubt it has happened and does happen, and it should be stopped; but there is nothing beyond anecdote to make us assume that it happens to “thousands of girls in the UK summer holidays.”

Typically, the police and CPS are accused of failing to prosecute only because they lack the will to do so, or because they feel constrained by “cultural sensitivities” or the fear of being considered racist.

This is nonsense. The Metropolitan Police set up Project Azure with a catchy slogan: “prevention, protection, partnership and prosecution.” It has been running Operation Limelight for the last 4 years, which has involved a team of police officers, Border Force officials and social workers meeting passengers both leaving and coming in from countries where children might have been taken for FGM over the holidays. As of July last year the operation had “engaged with” 10,000 people and Detective Chief Superintendent Gerry Allen spoke of plans to “industrialise” the operation. Covert surveillance was being employed and some people had been arrested though not, it seems, charged. Last week the operation was extended to St Pancras Station in case mutilated girls were being slipped back into the country by a more circuitous route. The officer in charge, Inspector Allen Davis, told the Daily Mail that he was “absolutely determined to obtain a successful prosecution.” So far he has not even had an unsucessful one although apparently the operation has yielded a few arrests, although for exactly what is unknown.

My own profession has also joined in, again from the highest of motives, with leading QCs Felicity Gerry and Dexter Dias in particular writing, speaking and, it is fair to say, campaigning on the issue. The Association of Women Barristers has held a forum at the bar conference on “achieving excellence in FGM cases.” The CPS has issued detailed legal guidance and appointed a cadre of “area lead prosecutors for FGM”. Alison Saunders, the Director of Public Prosecutions, has called for more “multi-agency collaboration,” admittedly the default reaction of any well-meaning bureaucrat to all problems. Agencies have collaborated and coordinators have coordinated. The CPS also supported calls for changes in the law – which were heeded – to make reporting of FGM mandatory, to criminalise extra-territorial FGM and to make parents criminally responsible if their daughters are found to have been mutilated. So determined was the CPS to obtain a prosecution that it launched a thoroughly misconceived one: of a surgeon, together with his interpreter, who put a stitch into a bleeding woman shortly after childbirth. They were acquitted by the jury in less than half an hour.

The statistics do in fact say something about the type of FGM that is taking place in Britain, or at least the type that we know is taking place, and it is modestly reassuring. Of the 57 cases that were recorded at NHS trusts in England in the 12 months to March 2017, all, or almost all, were what is known as “Type 4” FGM (in some cases the exact type is unknown, in others it is known but has not been recorded).

Female genital cuttings are conventionally classified according to the World Health Organisation as follows:

Type 1: Partial or total removal of the clitoris and/or the prepuce (clitoridectomy).

  • Type Ia, removal of the clitoral hood or prepuce only;
  • Type Ib, removal of the clitoris with the prepuce.

Type 2: Excision: the partial or total removal of the clitoris and the labia minora (the inner folds of the vulva), with or without excision of the labia majora (the outer folds of skin of the vulva ).

Type IIa, removal of the labia minora only;

  • Type IIb, partial or total removal of the clitoris and the labia minora;
  • Type IIc, partial or total removal of the clitoris, the labia minora and the labia majora.

Type 3: Infibulation: the narrowing of the vaginal opening through the creation of a covering seal by cutting and appositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris.

Type IIIa, removal and apposition of the labia minora;

Type IIIb, removal and apposition of the labia majora.

Type 4: All other harmful procedures to the female genitalia carried out for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.

It is an over-simplification, but generally speaking Type 4 mutilations are less severe in their effects than types 1 – 3. They do not necessarily involve the excision or removal of any tissue and they certainly do not involve the grotesque sewing up of the genital organs. That is not to say that they are necessarily harmless; indeed under the WHO definition they are “harmful.” Anyone “pricking, piercing, incising, scraping or cauterizing” the genital area of a young girl deserves to be prosecuted.

But here again, in fact there is good news. Of these 57 cases of FGM that are said to have occurred in the United Kingdom, 45 are known to have been carried out on adult women, and in a further 10 cases the age of the woman at the time of the FGM is not known. That still leaves somewhere between 2 and 12 cases that were carried out on girls under the age of 18, although whether they were babies or 17 year old girls we have no way of knowing.

One of the few things that the dataset reveals unambiguously is that the majority of known Type 4 FGMs that took place in Britain were in fact genital piercings. Whether anyone administering such a piercing is committing an offence under S.1 of the Female Genital Mutilation Act 2003 is an open question; both the fact that the recipient of the piercing is an adult, and that she freely consents are immaterial under the Act. Certainly the NHS guidelines treats piercings as FGM for recording purposes. Yet where adult women have voluntarily chosen to have genital piercings there seems no good reason to get very worried about it. In many cases one object of traditional FGM is to “control” a woman’s sexuality, so it is somewhat ironic that the law should also operate – if interpreted strictly – against women who choose to have genital piercings in order to enhance their sexual pleasure. Nor is it obvious why adult women should be prevented from having their genitals pierced if that is what they want, when male piercings such as the devilish sounding “Prince Albert” are considered legal.

Drawing all this together, the picture of young Muslim girls in Britain being “mutilated every hour of every day” turns out to be imagination, or even invention. There is next to no evidence of “cutters running around the country cutting little girls.” There is no evidence that over 9,000 girls every year are subjected to FGM in Britain. All we can say for sure from the latest report is that at least 57 females, most of them adult women, have undergone some sort of procedure on their genitals and in about 50 cases this was to insert piercings. Moreover, it is inconceivable that these women inserted genital piercings because they were Muslims. There are indeed some branches of Islam that promote other types of FGM, but there are none that promote genital piercings. Islamic authorities are unanimous that such piercings are considered – ironically enough – as a mutilation of the body, and are thus forbidden.

None of this means that we should be complacent about the ghastly reality of some types of FGM. None of this means that we should stop looking for cases of FGM being carried out in this country, or of cases of parents taking their children abroad. All it means, and it is important, is that the most lurid guestimates of the extent of the problem should not be thrown around, and particularly not by elected officials.

There is no justification for berating the police or the CPS for lacking the will to prosecute. It may be that the reason for the lack of prosecutions is simply that the crime is very much less prevalent than we have been led to believe.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

12 thoughts on “How much is the CPS to blame for not prosecuting perpetrators of FGM?”

  1. There actually is a duty for NHS workers to report all suspicion, not necessarily to the police, but to social services who can investigate and escalate if necessary. It’s part of the general safeguarding policy rather than specifically aimed at FGM.

  2. I fear the tale of FGM hyperinflation is just the latest example of emotional manipulation for ideological purposes. It became a cause celebre among American feminists, mostly directed towards the ‘Dark Patriachal’ continent of Africa and has spread exponentially with the aid of massive NGO funding accordingly, ricocheting back to home territory. Anthropologist Bettina Shell Duncan has long been a critic of the way the problem- recognising it as such – is conceptualised and addressed and prefers the term Female Genital Cutting since ‘Mutilation’ is a loaded term likely to alienate those most in need of enlightenment. As it happens it is generally women in Africa, not men, who are most resistant to precluding the practice and furthermore areas where the worst types take place – the interior of Nigeria for instance, are those least likely to be accessible to the Western missionaries.
    But the way the ‘problem’ has been promoted and addressed in the UK demonstrates the incipient dangers of ‘mandatory reporting’ – not only are parents at risk of false accusation but also having their children harmed by the system – which includes, according to one report, self-styled ‘experts’ in detection who are unreliable. Given that the indications ought to be physically recognisable with some degree of accuracy, what would be the outcome if suspicion of sexual abuse were to become subject to mandatory reports – given the general absence of physical evidence in this instance?

    There must already be immigrant families in the UK fearful of getting needed medical and social welfare help less they become ‘objects of FGM concern’- how much worse would it be if there were a general obligation of mandated reporting?

    Grouping elective genital piercing with FGM underlines the ideological distortions and absurdities in the conceptualisation. Not only is genital piercing on the increase in the west, but also cosmetic vaginal surgery to meet some kind of cultural aspiration. And I won’t even begin the topic of transgender surgery (I don’t suppose subjects would be included in the FGM count – but why not, if voluntary adult piercing is?).

    One tends to think the whole issue in the UK has become a self-righteous fantasy of feminist ideologues and the anti-Muslim brigade making common cause despite deep seated political divides- though in fact FGM is a cultural and not a religious practice. But who cares about the facts when febrile hackles are raised in the UK of today?

  3. There are various reasons there have been no successful prosecutions in the UK. The first is that FGM is comparatively rare, with an estimated 18 cases actually performed in this country in 2015/16 (National Health Service. (2016, July 21). First ever annual statistical publication for FGM shows 5,700 newly recorded cases during 2015-16). 10 were Type IV.
    The second reason is the extraordinarily bungled prosecution of Dhanuson Dharmasena, an entirely innocent man who should never have been prosecuted and would never have been were it not for the obsessive zeal of Alison Saunders and the CPS to find a suitable case. The CPS will be hesitant to make such fools of themselves again.
    A third reason is probably the inconvenient fact that FRM is invariably performed by women who have themselves been victims and not by the hated patriarchy.
    The lack of suitable cases to prosecute may in reality be a cause for celebration, rather than for despair. The campaigning has ensured that it has never become particularly common in this country.
    By contrast, there are more than 40,000 cases of MGM committed in this country each year, a no less barbaric and damaging practice, but one that has ner been prosecuted, largely, it seems, because the judiciary has been desperate to excuse the practice. Consider Munby’s bizarre twisting of logic in Re B and G to argue that the two practices are not comparable.
    Perhaps we need to start from the premise that all children are equally worthy of protection from mutilation and not just some of them.

  4. The phrase “twittermob Islam-haters” has been widely taken up by feminists, politicians of all parties, anti-Islamophobia activists and even barristers and bloggers, and it sounds horrifying.

    Why are the police not arresting and charging all these nutters who we know exist and are running round the country nutting up people who tweet objections to the cutting of little girls?!

    And it would have been a good question, had there been clear evidence of a “twittermob Islam-haters” running around the country tweeting about cutting little girls.”

    We need to be careful. The recording of “twittermob Islam-haters” statistics by the police is in its infancy. The statistics are described as “experimental” and the latest report is riddled with warnings about how incomplete they are, and about how much is unknown. Currently they only cover real or imagined, possibly double or multiple counted, touted for, fished and trawled and dragnetted, claimed abuse collected on numerous police, government, activist and “anti” racist websites, plus the four police stations still open to the public in the four constituent nations of the UK. They certainly do not in themselves “prove” that thousands (or indeed hundreds of thousands) of twittermob Islam-haters are tweeting Islamophobic hate!

    Merely because something is possible does not mean that we should assume that it is happening. In fact it does not seem very likely.

    1. Indeed. As Matthew alludes to it’s difficult to see whilst (relatively) benign modification of the female genitals (piercings carried out for aesthetic/erotic reasons) should be illegal and similar modifications of the male genitals not.

      Of course, the elephant in the room is male circumcision; a practice routinely carried out of thousands of infants, which it were it not sanctioned since the dawn of time by two of the world’s major religions, would be seen as utterly barbaric.

  5. This was the experience in a SSD where I worked. Focus groups set up and after attending a course of one or two days some social workers taken from the front line to lead a ‘task force’ to develop a strategy to deal with this new hysteria. Social workers in an already massively stretched service jumped at the chance of being taken from the front line where stress and abuse of workers was at an all time high.
    The hope was that you’d be congratulated for ‘busting’ the latest bogeyman that we were sold was rife in our area. Slaps on the back from Directors and you made a little empire for yourself as the ‘expert’ on this topic.
    Innocent families caught up in the new pet subject for the safeguarding mafia.
    Much of the safeguarding agenda is all smoke and mirrors folks, making huge money with no one to dare to challenge it. And so it goes on…… search for the next hot topic to make your career on.

  6. There is a lot of lunacy on this topic, and that is a good summing up.

    One of the useful lists not so far as I know kept in any GP software is of women not known not to have been mutilated (and not known to have been).

    The population of such a list would be expected to gradually decrease as cervical smears, midwifery and obs&gynae activity, and occasionally direct questioning and examination removed people from it.

    But it is too clever and effective, and not dramatic and managed enough, for the people indulging themselves in the current fantasies.

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