R v Noor (Amina) (2024) EWCA Crim 714: The approach to sentencing in cases brought pursuant to the Female Genital Mutilation Act 2003
The appellant was convicted after trial of assisting a non-UK person to mutilate overseas a girl’s genitalia whilst outside the United Kingdom.
She was sentenced to seven years’ imprisonment, which was the subject of this appeal.
Prosecutions under the Female Genital Mutilation Act 2003 are rare. This was the first case brought under section 3 and only the second case prosecuted under the Act to result in a conviction.
This offence carries a maximum sentence of 14 years’ imprisonment. The Sentencing Council issued a guideline in relation to the section 3A offence under the Act (failure to protect a girl from risk of genital mutilation). However, there is no guideline in relation to the Act’s other offences.
The factual background
In 2006, the appellant travelled to Kenya from the UK with a three year old. While there, the appellant said her mother convinced her that the child should be subjected to FGM. The appellant and other family members had undergone the procedure themselves.
The appellant said she took the child to “a clinic place” and the procedure was carried out whilst she waited outside.
In 2018, the child, by then aged 16, told a teacher that she had been subjected to FGM. An examination showed that her clitoris had been removed.
The appellant denied knowledge of this, telling the police that she had been told that the procedure would involve a minor injection or piercing. In evidence, the appellant said had she known the child’s clitoris was to be removed she would have returned to the UK.
The appellant
The appellant was aged 40. She had no previous convictions and lived with her husband and seven children, the youngest aged two, whom she had never been separated from. She had never received a formal education and suffered from a number of physical and mental health issues.
Submissions on sentence
In the absence of an offence specific guideline, the prosecution submitted that the following were analogous offences for which there were Sentencing Council guidelines:
- Causing grievous bodily harm with intent;
- Causing or allowing a child to suffer serious injury;
- Child cruelty; and
- Failing to protect a girl from the risk of FGM.
The defence submitted that the only analogous guideline was failing to protect a girl from the risk of FGM.
Sentence
At sentencing, the judge had determined the guideline of particular relevance was that for causing grievous bodily harm with intent with the injury sustained by the child being “particularly grave”, placing harm in Category 1. Culpability was high because the child was vulnerable due to her age. The starting point was 12 years’ imprisonment, requiring downward adjustment.
He rejected the argument that the sole analogous guideline was the one relating to the offence contrary to section 3A of the Act. First, the judge said, it was not an offence which existed in 2006. Second, it was a far less serious offence than the offence contrary to section 3 of the Act. Third, it was an inapt comparison in terms of culpability.
From a starting point of 9 years 6 months’ imprisonment, he reduced the sentence by 2 years to reflect the appellant’s mitigation and a further 6 months for delay.
Analogous guidelines
A central argument on appeal was that the judge ought not to have referred to guidelines other than the guideline specific to the offence contrary to section 3A of the Act. It was submitted the parallel drawn between the offence and causing grievous bodily harm with intent was inapt.
Dismissing the appeal, Davis LJ concluded that the judge had been justified in the view that any offence contrary to section 3 of the Act constitutes very serious offending. He added that where an offence is of particular gravity or where deterrence is important, mitigating factors tend to hold less weight in the sentencing exercise. Further, he identified this as an offence bound to involve deliberation. Accordingly, deterrence is a highly relevant feature.
The court said the judge had been required to take into account guidelines for analogous offences of causing grievous bodily harm with intent and causing or allowing a child to suffer serious harm. Davis LJ identified the guideline for causing or allowing a child to suffer serious harm as the guideline most closely equated to the acts of the appellant. He said that whilst the offence is not on all fours with section 3 of the Act, the definition of the offence includes the concept of allowing serious physical harm to be caused.
In relation to the guideline for failing to protect a girl from the risk of genital mutilation, the court made clear that section 3A is an offence of omission rather than commission. The court therefore considers it a very different offence from a person who actively assists in or encourages the act of mutilation, as established in the appellant’s case. The court considered the only relevance of the 3A guideline was to demonstrate how seriously FGM is to be treated by the court.
Cultural context
The court rejected the argument that a distinction between the deliberate infliction of harm and something done in a cultural context is a basis for not using the analogous sentencing guidelines. Davis LJ added that the fact FGM is considered appropriate within such cultures has no relevance to the offence’s seriousness.
The court found the only relevance of the cultural context is the extent to which the offender, if outside of the UK, as is likely to be the case, was in a position to deal with familial and societal pressure.
Davis LJ said that it was envisaged by Parliament that substantial sentences would be imposed for FGM offences notwithstanding the cultural context as the correct overriding concern is the damage caused by the practice of FGM.
Nneka Akudolu KC and Rebecca Malczewski
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