The Court of Appeal has provisionally declined to admit proposed fresh evidence from a defence expert in an appeal against convictions for female genital mutilation and child cruelty, but will hear that expert and prosecution witnesses for a limited purpose. It refused the appellants’ request for a new joint medical examination of the child and adjourned a separate issue about interpretation of evidence until the appeal hearing.
The August 30, 2021 judgment concerns applications by H.M. and B.O., who were convicted by a jury at Dublin Circuit Criminal Court in November 2019. Both appealed their convictions and sentences. The appeals were listed for October 7 and 8, 2021. This ruling addresses directions sought before those appeals; it does not determine the appeals or the safety of the convictions.
The trial defence accepted that the child, identified as S, had suffered a serious injury but disputed how it happened. The prosecution experts considered the findings consistent with FGM. The defence relied on a report by Dr I., who had not examined S and, before the trial, had not reviewed the colposcopy recordings. After conviction, the appellants obtained an opinion from Professor Birgitta Essén, who disagreed with the prosecution experts’ interpretation of the recordings and said they showed the clitoris intact. The prosecution experts maintained their opinions.
The appellants argued that the expert evidence they had obtained before trial was inadequate and sought leave to present further evidence, including Professor Essén’s testimony. The court said it was not then persuaded that the interests of justice required admitting the proposed evidence as fresh evidence. That was a provisional view, not a final decision. It will hear Professor Essén, with cross-examination, to help reach a definitive view on the interests of justice. For fairness, the prosecution may recall its experts, and Dr Harty is to give sworn evidence about later examination attempts and an examination on October 19, 2019, which had not been disclosed before trial.
The court refused to direct a new joint examination of S, finding it would cause further distress and be disproportionate given the previous examinations and existing recordings. It also refused to direct Dr I. to comment on the 2019 recording. The request to introduce evidence about alleged interpretation problems was adjourned to the appeal hearing; the court expressed no view on whether that evidence should ultimately be allowed.