The Court of Appeal has reserved its decision on an application by a couple whose convictions for the female genital mutilation (FGM) of their daughter were quashed, to have their cases declared a miscarriage of justice.
Presiding judge, Mr Justice John Edwards with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, said the court had a lot to think about.
The couple, who are from a French speaking nation in Africa, were convicted after a trial in 2019, but their convictions were quashed in 2021 after the appeal court found serious deficiencies in translation of testimony at the trial. A jury at a retrial in 2023 could not reach agreement on verdicts, and the Director of Public Prosecutions subsequently dropped the charges.
The court was told the DPP dropped the charges after a new report "broadly" agreed with the conclusions of a defence expert that the child had never suffered the procedure.
The trial was the first of its kind in Ireland and was the subject of an RTÉ Documentary on One podcast and RTÉ Investigates programme late last year.
Lawyers for the couple say that an examination of the child by Swedish FGM expert Professor Birgitta Essén in December 2023 proved that she had never been subjected to the procedure.
Hugh Hartnett SC, for the child's father, said the couple's conviction in 2019 and subsequent two-year imprisonment amounted to a miscarriage of justice.
Senior Counsel, Brendan Grehan for the DPP argued that the trial proceeded in accordance with law and proper procedures. He said the DPP had acted in good faith at all times, and any review of the evidence would show there was a "full credible case for the bringing of charges".
Mr Grehan said the then one-year-old child presented to hospital in September 2016 with injuries, the cause of which has not been resolved. The parents told doctors that the injuries were caused by a fall onto a plastic toy, an explanation that was rejected by experts who gave evidence at the first trial.
However, Mr Grehan said the DPP now has no intention of pursuing the charges against the couple.
Following Dr Essén's examination in December 2023, Mr Grehan said an expert retained by the DPP, Professor Cecilia Berger, reviewed the case and "broadly speaking, agreed with the conclusions of Professor Essén", resulting in the charges against the couple being dropped.
To issue a certificate of miscarriage of justice, the Court of Appeal must be satisfied that new evidence proves, on the balance of probabilities, that the couple are innocent.
