The Court of Appeal has allowed a husband and wife’s appeals against their convictions after finding that serious failures in the French interpretation of the husband’s trial evidence potentially undermined the fairness of their joint trial.
The court did not decide whether the couple should face a retrial. It said it would hear submissions on that question. It also left undecided the couple’s separate request to introduce fresh expert evidence, and did not determine the outstanding expert-evidence issue in their substantive appeals.
The couple, identified in the judgment as H.M. and B.O., were convicted by a Dublin Circuit Criminal Court jury in November 2019 of female genital mutilation and child cruelty. The alleged injured party was their infant daughter, identified as “S”. Both appealed their convictions and sentences.
At trial, the defence accepted that the child had suffered a serious perineal injury but said it happened accidentally when she fell on a toy. The father gave evidence for both appellants with the assistance of a French interpreter. The prosecution’s medical witnesses considered the injury consistent with female genital mutilation and inconsistent with the account of a fall.
The appeal court reviewed an expert report comparing the trial interpretation with the recorded questions and answers. It found numerous inaccuracies, including omitted information, confusion over pronouns, mistranslated medical and legal terms, and questions put to the father in ways that changed their meaning. In one example, a question about whether he would “hurt” his daughter was interpreted as asking whether he “hate[d]” her. Other examples concerned how the child moved and where she was in relation to the toy.
The court said the jury needed to assess the father’s credibility and reliability because whether the injury was accidental remained a live issue. It concluded that the jury had not received an accurate account of his testimony: some evidence was omitted or misrepresented, and some answers were given to distorted questions. The court rejected the Director of Public Prosecutions’ submission that the deficiencies had not made the trial unfair.
It held that the trial was unfair and “other than a trial in due course of law”, and allowed the appeals on the interpretation issue. The court said it was therefore unnecessary to determine the motions for fresh evidence or continue hearing the expert-evidence issue. The judgment makes no order on retrial; submissions on whether one should be directed were to follow.