Couple awarded costs in FGM miscarriage of justice case
Fiona Magennis
The State must pay a couple’s costs in their successful application to have their wrongful conviction for the female genital mutilation (FGM) of their one-year-old daughter declared a miscarriage of justice.
Their trial was the first of its kind in Ireland and was the subject of an RTÉ documentary late last year.
The parents spent two years in prison before their convictions were quashed on appeal in 2021.
A miscarriage of justice certificate was granted by the Court of Appeal last month. Judge Patrick McCarthy said newly discovered facts disclosed in expert reports show that there has been a miscarriage of justice.
The matter was put back for a costs hearing after Brendan Grehan, for the Director of Public Prosecutions, said he wanted the opportunity to take instruction and to consider the judgment. He asked that the matter be put back to the last week of term.
At the Court of Appeal on Friday, Mr Grehan SC sought a reduced costs order.
He said certain issues had been raised by the couple’s legal teams which were “unmeritorious and unnecessary”.
Mr Grehan said this was a straightforward miscarriage of justice application, but other issues had been raised which elongated the process, in particular the suggestion that the conduct of the DPP had “fallen below minimum standards” in this case.
He said the fact that these matters were raised meant that the DPP had to respond to them and they couldn’t be simply “left on the record”.
Grehan noted the Court of Appeal had dismissed any suggestion that the DPP had engaged in any kind of “abuse of process”.
He said this was a matter which “coloured the proceedings”, so it was important to address it.
Counsel also referred to issues raised with evidence given by doctors. He said this had also been addressed in the court’s judgment, and the doctors should not be subjected to criticism.
“Experts differ, we all know that,” Grehan said.
He asked the court to “measure” or “limit” the costs awarded.
Hugh Hartnett, on behalf of the appellants, said the case had been called on for two days but had finished in just over a day.
He said that, contrary to what counsel for the director had said, the couple’s legal teams had “facilitated the efficient progress of this case”.
Delivering judgment, Judge Isobel Kennedy said the three-judge court was satisfied that matters highlighted by counsel for the DPP did not elongate matters before the court.
She said submissions and legal arguments had been “reasonably concise” and the court saw no reason to depart from the rule that “costs follow the event”.
First in Irish history
The husband and wife became the first people to be convicted of the charge in the history of the State, after a Dublin Circuit Criminal Court jury found them guilty in November 2019 of carrying out an act of FGM on their daughter at a Dublin address on September 16, 2016. Both parents had pleaded not guilty.
The parents told doctors that the injuries were caused by a fall on to a plastic toy, an explanation that was rejected by experts who gave evidence at the first trial.
The now 43-year-old man and 34-year-old woman spent two years in prison before their convictions were overturned by the Court of Appeal in November 2021, after it found the trial had been “unfair” because of “serious and far-reaching inaccuracies” in how the mother and father’s testimony was translated to the jury.
After the first trial was ruled unfair, the child was returned to the custody of her parents.
The couple, who are originally from a French-speaking region of Africa, later launched a bid to have their quashed convictions declared a miscarriage of justice.
At the hearing in January, lawyers for the parents said that an examination of the child by Swedish FGM expert Prof Birgitta Essen in December 2023 proved that she had never been subjected to the procedure.
The court heard the DPP dropped the charges after a new report commissioned by the State “broadly” agreed with Prof Essen’s conclusions.
After reviewing additional materials, the State’s expert witness said that her expert opinion was “in line with that of Professor Essen” in judgment of genital anatomy and further that the injuries sustained by the child were “not compatible with FGM”.
The Court of Appeal noted that the existence of Professor Essen’s conflicting finding of fact came to the notice of the applicants only after their conviction.
“These newly-discovered facts show that there has been a miscarriage of justice because, on their evidence, we find on the balance of probabilities that the applicants are factually innocent,” McCarthy said.
