Written evidence submitted by the Crown Prosecution Service

 

Executive summary

 

 

 

 

 

 

Introduction

 

  1. The Crown Prosecution Service (CPS) was set up in 1986 under the Prosecution of Offences Act 1985 as an independent authority to prosecute criminal cases investigated by the police in England and Wales. In undertaking this role, the CPS:

 

  1. Before charging a defendant and proceeding with a prosecution, prosecutors must first review each case in accordance with the Code for Crown Prosecutors. The Code sets out the principles which prosecutors follow when considering cases. The key principles are that a prosecution should only be started or allowed to continue if there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge, and, if so, where a prosecution is needed in the public interest.

 

  1. The Code for Crown Prosecutors is supplemented by legal guidance for prosecutors which provides a detailed framework within which prosecutors take their decisions in individual cases to ensure consistency of approach throughout England and Wales. The guidance is publicly available via the CPS website.

 

  1. Alison Saunders is the Director of Public Prosecutions (DPP) and heads the CPS. She has been DPP since November 2013 and was previously the Chief Crown Prosecutor (CCP) for London.

 

  1. The CPS is divided into 13 geographical Areas across England and Wales. Each Area is led by a CCP who is responsible for the provision of a high quality prosecution service in his or her Area. A non-geographical ‘virtual’ 14th Area, CPS Direct, is also headed by a CCP and provides charging decisions to the police, 24 hours per day 365 days of the year. The CPS also has a small Headquarters function and four central casework divisions - Central Fraud Division, Serious Crime and Counter Terrorism Division, Organised Crime Division and Welfare, Rural and Health Division.

 

Background on referrals to the CPS

 

  1. Female Genital Mutilation (FGM) has been a specific criminal offence in England and Wales since 1985 when the Prohibition of Female Circumcision Act 1985 (“the 1985 Act”) was passed.

 

  1. The Female Genital Mutilation Act 2003 (“the 2003 Act”) repealed and replaced the 1985 Act in England, Wales and Northern Ireland. It also made it an offence for UK nationals or permanent UK residents to carry out FGM abroad, or to aid, abet, counsel or procure the carrying out of FGM abroad, even in countries where the practice is legal. The maximum penalty was also increased from 5 years to 14 years imprisonment.

 

  1. However, no prosecution has ever been brought for FGM in the intervening 29 years, either for the more limited offence introduced in 1985 or for the more extended offence introduced in 2003. Although there have been a number of police investigations, we are unaware of any cases being referred to the CPS for a decision to charge prior to 2010.

 

  1. The first case referred to the CPS was in 2010 when the decision was taken not to charge because the victim had given several different accounts of what happened, implicating different perpetrators, on different dates and in different countries. Even allowing for the possibility that trauma and other reasons may have affected the accounts given; the reviewing CPS lawyer concluded that without any supporting evidence and with the victim accepting that some of her accounts were false, no charges could be brought. This case is now being re-reviewed by the CPS.

 

  1. Since then the CPS has taken the decision not to charge in two further cases. One case was referred to the CPS by the police for advice in 2012 as there was an allegation that a girl may have been at risk of FGM. The police initiated an investigation which included the arrest and interview of the girl’s parents and the seizure and search of computers, phones and other documentation The police investigation did not find evidence that the girl was at risk, and following advice from the CPS, no further action was taken. Another case was referred to the CPS in January 2013, following which the victim withdrew her allegation and despite offers of specialist support and special measures was no longer willing to support a prosecution. Due to the victim’s health and vulnerability we concluded that witness summons would not be appropriate and as a result determined that no further action should be taken.

 

  1. In a third case the decision not to charge was taken in September 2012. In this case, the CPS decided that no further action should be taken and no charges brought as there was insufficient evidence to support the allegation made in a newspaper report that two medical doctors in Birmingham were willing to undertake FGM on girls.

 

  1. The CPS is now currently considering 10 cases. Four of the cases are reviews of “old” cases from the Metropolitan Police Service (MPS) where the police or prosecutors decided that no further action should be taken, this includes the first case referred to the CPS in 2010, as detailed above. Six are new cases referred by the MPS, although three are at a very early stage, and the CPS is advising on the investigations. No decisions have yet been taken on the 10 cases (as of 12 February 2014) but they are subject to frequent review by the CCP for London, and there is close cooperation between CPS London and the MPS. We also understand West Midlands Police are currently investigating a potential case (as of 12 February 2014) which may be referred to CPS West Midlands for early investigative advice shortly.

 

Barriers to prosecution

 

  1. The CPS is determined to bring a successful prosecution. However, there are a number of barriers that need to be overcome in doing so. This it should be made clear is not to excuse the lack of prosecutions, but rather it is to identify the challenges that the CPS is working with its partners to overcome.

 

Reports of FGM

 

  1. The CPS can only prosecute cases referred by the police following an investigation. However, there are relatively few cases reported to the police for investigation. At the time that FGM takes place, many victims may be too young and vulnerable or too afraid to report offences to the police. We also recognise that victims may not wish to report their parents, and there remains reluctance to report the crime to the police because of cultural issues, including pressure from the family and the wider community.

 

  1. Even when a victim comes forward or someone reports a suspected case of FGM to the police, the police face a number of problems when conducting their investigation. For example, this can include silence from the community; evidential and other difficulties if the FGM is reported many years after the act has taken place; and the FGM may take place outside of our jurisdiction which means there may be challenges in obtaining reliable and admissible evidence from the country where the FGM took place. There is also the problem that the victim’s evidence may not be reliable enough because of a number of factors such as their age or inability to recollect what happened.

 

  1. If very few victims are therefore likely to come forward and complain to the police, we need to identify other means of identifying girls and women who have been subjected to FGM or who are at risk of FGM. A very important source of potential referrals to the police should be health professionals and schools. In particular, health professionals will come into contact with girls and women who have been subjected to FGM or with girls at risk. For example, midwives will see women when giving birth who have had FGM committed on them. Schools should be aware and alert if a girl is removed from school for an extended period to holiday outside the UK during the so-called “cutting season”. Work needs to be undertaken by the responsible departments, agencies and professional bodies to ensure that frontline professionals are aware of FGM and they clearly understand how to report any suspected cases so that action can be taken. A new statutory duty to report suspected cases on health and education professionals would be helpful as it would require an effective response.

 

  1. In addition, to overcome the problem of few victims coming forward, we are pleased that the police are instigating more covert and intelligence led operations against FGM, especially if they are able to identify the “cutters” carrying out the FGM.

 

Building the evidential case

 

  1. In order to have sufficient evidence of FGM for a prosecution, a full picture is required to provide a realistic prospect of conviction with evidence to show that FGM has taken place and identify the person(s) responsible. Ideally an account is needed from the victim; evidence that the suspect/s undertook the act concerned or aided, abetted, counselled or procured the act; medical evidence to prove that FGM has taken place; and other extraneous evidence involving the parents or other adults suspected of being involved such as travel documents, emails concerning the arrangements, texts and bank details showing payments or withdrawals.

 

  1.               If the evidence outlined can prove all the elements of the offence without the need to call the victim to give evidence, a prosecution may be possible without them.

 

  1.               In circumstances where a victim feels that they are unable to proceed, the CPS will still look to see if it is still possible to charge and prosecute for FGM or any other criminal offences which might be disclosed by the investigation. Here, the prosecutor will consider if there is other sufficient evidence available which will support the offence to the criminal standard without relying on the victim to give evidence of the offence. This evidence might include a combination of expert medical evidence, evidence from third parties such as schools or local authority records, evidence which might come from passports or flight records or other close family members or friends. However, unless a victim comes to the attention of the relevant authorities, it is unlikely that action can be taken.

 

Support for victims

 

  1.               Many witnesses experience stress and fear during the investigation of a crime and subsequently when attending court and giving evidence. The CPS has particular obligations under the Code of Practice for Victims of Crime (the Victims Code). This includes discussing with the police as soon as possible the victim’s requirements for giving evidence. Once the needs of the victim has been identified, the prosecutor can then apply to the court for “special measures” which are a range of provisions to help vulnerable and intimidated witnesses give their best evidence in court. The decision to grant special measures is a matter for the court.

 

Special measures available to the victim in court include:

 

 

 

 

 

 

 

 

  1.               The CPS can also arrange court familiarisation visits through the relevant Witness Care Unit so that the victim is aware of the layout of the court and to help demystify the process.

 

  1.               If there was information to suggest that the victim was reluctant to give evidence in court, enquiries must be made with the police with regard to the safety of the victim and to ascertain whether the victim has been made aware of available specialist support. If specialist support services are involved, a risk assessment should be considered, especially in higher risk cases. However, if the victim was still unwilling to give evidence, the CPS would take the following action:

 

 

 

 

 

  1.               If having taken the above action and the victim was still unwilling to give evidence, prosecutors should consider any other offences with which to charge the suspects where they do not need to rely on the victim’s testimony.

 

Action being taken by the CPS

 

  1.               The CPS has taken a leading role in addressing FGM in recent years. We have been working with our partners to ensure there is a robust framework in place that is able to support the effective investigation and prosecution of FGM.

 

  1.               In September 2011, the CPS published its first specific piece of guidance for prosecutors on dealing with FGM. This included advice about the sensitivities and complexities involved in FGM. This was followed in September 2012 by a roundtable chaired by the then DPP with the police, third sector organisations, professional bodies, government, departments and experts, to explore why so few FGM cases were being referred to the CPS for charge and prosecution, to consider how we could work together to address some of the challenges faced in the reporting of cases to the police and investigating and gathering evidence in order to support a prosecution. This led to an action plan being published by the CPS that autumn. The actions have led to much closer joint working between the police and CPS on this issue.

 

  1.               It included the production of an Aide Memoire by the CPS on offences and behaviours experienced by victims of FGM. The Aide Memoire set out a range of relevant inchoate offences (including conspiracy); section 5 of the Domestic Violence, Crime and Victims Act (DVCVA) 2004 (amended by DVCVA 2012); and other offences associated with assault, abuse and neglect. The document has been published as part of the CPS guidance on FGM and published on the Police National Database. It provides advice on alternative offences if the FGM offences cannot be pursued.

 

  1.               A follow-up roundtable was held in September 2013 and a new action plan was agreed. Since Alison Saunders became Director of Public Prosecutions in November 2013, protocols have been agreed between the CPS Areas and every local police force setting out the arrangements for working together and tackling FGM locally. The protocols set out how each case will be considered, as well as stressing the importance of making sure the victim is supported in every way possible. It calls for early consultation between the CPS lawyer and the officer in the cases to ensure that all possible avenues of evidence are explored and that the correct charge is identified. The DPP has also identified prosecutors to lead on FGM in each of the 13 CPS Areas and CPS Direct. They will be the lead contact with the police and communities, for instance the CPS London lead liaises with the MPS specialist FGM unit. As a result of this work, the CPS is now much better prepared to identify cases where there is sufficient evidence for a realistic prospect of conviction.

 

  1.               The DPP wrote to Ministers in the Home Office, Ministry of Justice and Department of Health (with copies to the Department for Education and the Department of International Development) on 3 February 2014 identifying possible ways in which the criminal law could be strengthened. The proposals include clarifying the law in relation to “re-infibulation” as it is not explicitly referred to in the 2003 Act; extending the scope of extra-territorial offences so that those with temporary residency status in the UK are covered effectively by the 2003 Act; placing a positive duty on parents or carers to prevent their child from being mutilated by another or on the instigation of another; and a new statutory duty on health and education professionals to report cases where they suspect a girl has undergone FGM or is at risk of FGM. This was reinforced and circulated under cover of a letter from the Solicitor General who has been very supportive of the FGM work undertaken by the CPS and to whom regular updates are provided. We understand the proposals are currently being considered.
  2.               The DPP attended a Ministerial FGM Roundtable on 6 February 2014, hosted by the Home Office and chaired by Norman Baker MP, on the International Day of Zero Tolerance to Female Genital Mutilation. At that meeting, the DPP signed a Ministerial declaration to prevent and put an end to FGM. The Solicitor General who is a keen supporter of this work was in attendance and is also a signatory to the declaration.
  3.               A joint CPS/police national training event was also held at CPS Headquarters on 10 February 2014 and attended by prosecutors and police officers from across England and Wales. This was the first time such a national event had been held and was used to raise awareness of relevant investigation and prosecution strategies through working on hypothetical case studies. This is being seen as a model for further CPS/police training events on FGM.

 

Conclusion

 

  1.               The fact there have been no prosecutions of FGM since it became illegal in 1985 is a matter of which the CPS is very aware and is determined to change. We are working towards bringing a prosecution in the near future to secure a FGM conviction in court. We and the police have been working together to ensure there are effective arrangements in place between us to support investigations and prosecutions, and identifying ways to overcome any potential barriers. There remains work to be done to improve the number of reports to the police, but there is now significantly greater awareness of this issue than there was just a few years ago. FGM will continue to be a priority for the CPS for the foreseeable future.

 

 

 

Crown Prosecution Service

February 2014

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