On 4th February 2015 a jury at Southwark Crown Court acquitted Dr. Dhanuson Dharmasena of an offence under the Female Genital Mutilation Act 2003 (“the FGMA 2003”), taking only 25 minutes to reach a unanimous verdict.
This was the first prosecution brought by the CPS in relation to an offence of female genital mutilation (“FGM”), despite the fact the procedure has been illegal in the UK since 1985.
As I explained in a previous article, this was not the clear-cut case that may have been expected for the first FGM prosecution. FGM brings to mind an image of a young girl being held down and mutilated against her will by an unqualified person, in unsanitary conditions. This case was nothing like that.
Dr Dharmasena, a junior registrar in obstetrics and gynaecology, faced prosecution for his actions in relation to a woman known only as ‘AB’. AB was admitted to Whittington Hospital in November 2012, in the early stages of labour. It became apparent, when AB was examined, that she was a victim of FGM. As highlighted by HHJ Sweeney in his summing up, this should have been identified earlier by the Hospital.
Dr Dharmasena deinfibulated AB – cut open the FGM scar tissue – in order for AB to give birth. After the birth, Dr Dhamasena repaired the cut he had made, sewing up part of the inner vaginal lips, in addition to repairing the episiotomy. This is known as reinfibulation, and is the act in relation to which he was charged.
The section 1 FGMA 2003 offence is committed where a person ‘excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris’. Although the offence is strict liability, the FGMA 2003 provides two defences: such mutilation does not constitute an offence where it is performed by a medical practitioner and the procedure is necessary for the patient’s physical or mental health; or if it is performed on a girl in any stage of labour, or who has just given birth, for purposes connected with that labour.
Dr Dharmasena argued that he reinfibulated AB in order to stop her bleeding. As he had been forced to cut through the original scar tissue, he sought only to repair that cut and prevent bleeding and infection. It seems to me that this potentially engaged either (or both) of the defences available; and it appears that the jury agreed. Dr Dharmasena said when giving evidence, that he now knows he should not have stitched AB in the manner he did, and has subsequently learned the correct surgical technique.
A second man, Hasan Mohamed, was acquitted of aiding and abetting the doctor.
Since the verdict, there has been much criticism of the CPS for bringing the prosecution in the first place. Medical practitioners have spoken out about their fears of the law interfering with what they can and can’t do to prevent and control haemorrhaging, and called the case ‘a distraction’ from the real issue.
They highlight the fact that Dr Dharmasena had received no training in FGM, and was faced with his first ever case whilst AB was already in the throes of labour. Furthermore, he safely delivered the baby during a high-pressure delivery.
Legal practitioners have also criticised the CPS. Baroness Kennedy said she was concerned ‘because all the evidence pointed to a young doctor who was not adequately prepared for the circumstances which faced him’.
Many critics have highlighted the fact that the CPS announced they were charging Dr. Dharmasena three days before Alison Saunders, DPP and head of the CPS, was due to appear before the Home Affairs Select Committee to justify why no FGM prosecutions had been brought to date.
Tabloid papers have focused on the fact that the victim never supported the prosecution. This is perhaps to miss the point, as it is likely to frequently be the case that the victims of FGM will not support a court case. Often the potential defendant would be their father, or mother, or husband. Any criminal practitioner with experience of domestic violence cases will understand the difficulties here.
In contrast, FGM campaigning groups lent their support to the CPS, praising them for taking a tough stance and for demonstrating that the CPS will pursue FGM cases. Such groups hope that this case will act a public deterrent, and ensure that hospitals and medical professionals put improved procedures in place for identifying victims of FGM earlier.
Alison Saunders responded and stated that the CPS could not shy away from prosecuting difficult cases. Ms Saunders stressed that the judge dismissed applications by the defence to stop the case, once before the trial and twice during it (no doubt one was a half-time submission of no case to answer), which meant he agreed that there was sufficient evidence for the case to be left to the jury.
This was undoubtedly not an ideal case for the CPS to choose as their landmark FGM prosecution. It must have been apparent from an early stage that Dr Dharmasena would seek to rely on one of the FGMA 2003 defences, albeit his chances of success may have been difficult to assess, bearing in mind the defences had never before been considered by a jury. With no previous trials to inform the prosecutor’s assessment of the strength of his defence, and the evidential hurdle of the test seemingly passed (bearing in mind that the offence is strict liability), and in light of the increasing pressure the CPS was under, it may be that they just decided to take their chances. It seems the CPS may be regretting that decision now.
The CPS will hopefully have learnt a valuable lesson from this case, both from the speed with which the jury acquitted and the resulting public reaction. Let us hope that the adverse publicity will not prevent prosecutions being brought when a more appropriate case is identified.
By Merry van Woodenberg (@MerryVW), pupil barrister.