Noor, R. v

Factual and Procedural Background

On 26 October 2023, the Appellant was convicted at the Central Criminal Court of assisting a non-UK person to mutilate overseas a girl's genitalia while outside the United Kingdom. On 16 February 2024, the Appellant was sentenced by the trial judge, Judge Bryan, to seven years' imprisonment. The Appellant's application for leave to appeal against the sentence was referred by the Registrar to the full Court. The Appellant was represented by Attorney Akudolu KC and Attorney Hamilton, and the prosecution by Attorney Heer KC, all of whom appeared in the court below. The Court was assisted by detailed written and oral submissions.

The offence arises under the Female Genital Mutilation Act 2003, which criminalises FGM and includes a specific offence of assisting a non-UK person to carry out FGM overseas on a UK national or resident. The Appellant was convicted of this offence. The case is notable because prosecutions under this Act are rare, and this appeal allows full consideration of sentencing approaches in such cases.

The factual background reveals that the Appellant, originally from Somalia, became a UK citizen in 2005. In 2006 she travelled to Kenya with a three-year-old girl, Jade, and was involved in taking Jade to a private house where Jade underwent Type 1 FGM (removal of the clitoris). The Appellant claimed she was pressured by family members and did not understand the nature of the procedure, believing it to be a minor cultural practice. The jury, however, found that the Appellant knowingly assisted and encouraged the procedure and was present during it. Jade later disclosed the FGM at school, leading to medical examination confirming the removal of her clitoris.

The sentencing judge considered various analogous guidelines and aggravating and mitigating factors, including the Appellant's cultural background, her own experience as a victim of FGM, family pressures, and the impact of imprisonment on her family. The judge imposed a sentence of seven years' imprisonment, having reduced the starting point to reflect mitigation and delay.

Legal Issues Presented

1. Whether the trial judge erred in finding that the Appellant was aware in 2006 that Jade was to undergo Type 1 FGM and that she assisted and encouraged the procedure.
2. Whether the trial judge used the correct offence-specific sentencing guidelines or analogous guidelines in sentencing the Appellant.
3. Whether the trial judge sufficiently reflected the mitigating factors available to the Appellant in sentencing.
4. Whether the reduction applied by the trial judge for delay properly reflected the adverse effects on the Appellant and her family.

Arguments of the Parties

Appellant's Arguments

• The judge's factual findings regarding the Appellant's knowledge and participation were not supported by the evidence, given her cooperation with authorities and apparent shock at the hospital.
• The judge erred by relying on sentencing guidelines for offences involving intentional grievous bodily harm, which are not analogous to the Appellant's offence committed in a cultural context.
• The judge failed to give sufficient weight to mitigating factors, including the Appellant's youth, vulnerability, blameless life since the offence, and the significant impact of imprisonment on her large family.
• The reduction for delay was inadequate, being disproportionately small compared to precedents involving shorter delays.

Prosecution's Arguments

• The Appellant knowingly assisted and encouraged the Type 1 FGM procedure and was present during its commission.
• The offences of causing grievous bodily harm with intent and causing or allowing a child to suffer serious harm are appropriate analogous offences for sentencing.
• Aggravating factors included breach of trust and particular vulnerability of the victim; mitigating factors included cultural pressures and the Appellant's own victim status.
• The delay was partly justified by evidential and public interest complexities, and the reduction applied was appropriate.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court upheld the trial judge’s factual findings, emphasizing that the judge had the advantage of seeing and hearing the Appellant’s evidence and was entitled to reject her account as not credible. The judge’s finding that the Appellant knowingly assisted and encouraged the Type 1 FGM procedure, including being present during it, was supported by evidence such as the Appellant’s own inconsistent statements and use of culturally specific terminology.

Regarding sentencing guidelines, the Court agreed that in the absence of an offence-specific guideline for section 3 of the 2003 Act, the trial judge correctly relied on guidelines for analogous offences, including causing grievous bodily harm with intent and causing or allowing a child to suffer serious harm. The Court found that the offence constituted serious harm equivalent to causing grievous bodily harm, but corrected the judge’s categorization of harm from Category 1 (particularly grave) to Category 2 (grave injury), reflecting the revised sentencing guideline definitions.

The Court rejected the Appellant’s argument that the offence-specific guideline for failing to protect a girl from the risk of FGM (section 3A) was the only appropriate analogy, noting that this offence is one of omission and significantly less serious than the active assistance in FGM involved here.

In assessing mitigation, the Court acknowledged the extensive factors considered by the judge, including the Appellant’s youth, victim status, cultural and family pressures, good character, impact on family, and health issues. The Court found no clear error in the judge’s exercise of discretion in weighing these factors or in the reduction applied.

On the issue of delay, the Court recognized that the delay was partly unjustified and caused detriment to the Appellant and her family, warranting a reduction in sentence. However, the Court emphasized that reductions for delay are highly fact-specific and that the judge’s reduction of six months was within acceptable bounds, especially when considered as part of the overall mitigation.

The Court also addressed the cultural context, affirming that while cultural pressures are relevant to mitigation, they do not diminish the seriousness of the offence. The offence is criminalised regardless of cultural acceptance, and Parliament’s sentencing framework reflects this.

Finally, the Court noted a prison report indicating the Appellant’s relatively positive adjustment to custody but did not find this sufficient to alter the sentence.

Holding and Implications

The Court DISMISSED the appeal against sentence.

The Court held that the trial judge’s factual findings were justified and that the sentencing approach, including the use of analogous guidelines and the assessment of mitigation and delay, was appropriate save for a minor correction in the categorization of harm. This correction did not render the sentence manifestly excessive.

The direct effect is that the Appellant’s seven-year custodial sentence stands. No new precedent was established beyond clarification of the appropriate harm category in analogous sentencing guidelines for offences under section 3 of the Female Genital Mutilation Act 2003. The decision reinforces the serious nature of assisting FGM overseas and confirms that cultural context does not mitigate the gravity of such offences in sentencing.