A note on the sentencing remarks on R. v N.

I have only had time today to consider the sentence in the recent FGM trial at the Old Bailey, which was passed on 8 March 2019. The judge was Mrs Justice Whipple, of whom I confess I have never heard, but who I see attended St Mary’s Ascot, before Oxford and working at a top City law firm, Freshfields. She is a former government lawyer who worked her way up to the Attorney General’s London Panels of Counsel, being appointed to the “A” panel in January 2005.

In November 2010, she  was appointed as Lead Counsel to the Detainee Inquiry, chaired by Sir Peter Gibson, to investigate alleged involvement of British officials in the ill-treatment of detainees post 9/11.

So, plenty of privilege there, for those concerned with such matters amongst our judiciary. High Court judges’ annual salary is £181, 500.

As I explained in an earlier blog, this case involved the conviction of  a little girl’s Ugandan mother, but not her Kenyan father, who was acquitted.

The judge noted that the child had settled with foster parents, and that:

R is unlikely to suffer adverse obstetric outcomes as a result of the FGM and her sexual enjoyment in the future will probably not be impaired, although of course R is missing her labia minora.

 

The judge considered that, having regard to the applicable sentencing guidelines, the starting point should be 10 years. She drew analogies with offences under the law pertaining to domestic abuse, grievous bodily harm and allowing a child to suffer serious physical harm.

She described the case as “particularly sickening” given the girl’s extreme youth (three years) and the fact that the offence was committed on 28 August 2017 in the child’s home, where she should have been safe.

The judge decided to impose a sentence of 11 years.

Then the sentencing remarks take a surprising turn. The judge reveals that the mother also had pleaded guilty to four counts of possession of pornography. Now, I have not conducted a survey, but I do not recall there being any prior mention of this dimension of the case in previous press reports. It seems that in fact there were two indictments (charge sheets), but that the jury in the FGM trial was unaware of the pornography charges.

The specifics of the latter are as follows:

Count 3: Distributing indecent photographs of children contrary to s 1(1)(b) of the Protection of Children Act 1978. This concerns a Whatsapp message sent to three saved contacts on 12th April 2017 containing the video lasting 2 minutes and 45 seconds which involves a boy of around 5 years old, and young girl, approximately 12-13 years old, engaging in mutual masturbation, performing oral sex on one another, and engaging in penetrative sexual intercourse.

Count 6: Publishing an obscene article contrary to s 2(1) of the Obscene Publications Act 1959. This concerns a Whatsapp message you sent to two Whatsapp correspondents on 11th August 2017 at 19:27 containing a video lasting 28 seconds depicting an adult male penetrating a dog with his penis.

Count 7: Publishing an obscene article contrary to s 2(1) of the Obscene Publications Act 1959. This concerns a Whatsapp message you sent to three saved contacts 8th April 2017 containing a video of a naked adult female being penetrated by a snake.

Count 8: Possessing an extreme pornographic image contrary to s 63(1) of the Criminal Justice and Immigration Act 2008. This concerns a video stored on your phone of an adult male licking the genital area of a dog.

 

The judge decided to sentence the defendant consecutively for these offences, and rounded the sentence up to 13 years’ imprisonment.

I understand that that the mother is appealing her conviction for FGM.  I have no details thus far. All I can say is that it is plain that FGM is a hugely political issue, and that there is immense pressure by powerful lobby groups on public authorities to be seen to be getting tough on it. I am sure the long sentence reflects that, as it does other contemporary concerns concerning VAWG (violence against women and girls).

Whether this draconian approach is right – legally or morally – is a different matter. The UK is a byword for penal populism, lengthy sentences, a prison population higher than other Western European countries, and a crumbling prison estate, which is notorious for its violence and inhumane conditions.

I assume that the mother pleaded guilty to the pornography charges on legal advice. I am not a sentencing expert, but it seems unnecessary to me to impose a consecutive sentence in respect of those matters.

Sources

https://www.judiciary.uk/wp-content/uploads/2019/03/r-v-n-female-genital-mutilation-sentencing-remarks-whipple-j.pdf

https://www.legal500.com/firms/9288-the-chambers-of-richard-booth-qc/offices/9288-london-england/lawyers/44641