Noor v R

For an offence under section 3 of the Female Genital Mutilation Act 2003, where no offence-specific guideline exists, the court should use analogous guidelines carefully and adjust for differences in statutory maximum and offence elements. Active assistance in mutilation is materially different from the omission offence under section 3A. Removal of a child’s clitoris is really serious harm, but falls within Category 2 rather than Category 1 under the revised grievous bodily harm guideline. Cultural context cannot reduce the seriousness of FGM, although family pressure may mitigate culpability. Family impact and delay require individual assessment, without conventional percentage reductions. The sentence was not manifestly excessive, so the appeal was dismissed.

The appellant was convicted after trial at the Central Criminal Court of assisting a non-UK person to mutilate overseas a girl’s genitalia, contrary to section 3 of the Female Genital Mutilation Act 2003. Mr Justice Bryan sentenced her at the Crown Court at Southwark to seven years’ imprisonment. She appealed against sentence, challenging the factual findings, the use and application of analogous sentencing guidelines, the weight given to mitigation, and the reduction for delay. The central issues were the appropriate sentencing analogy for active assistance in FGM and whether the sentence was manifestly excessive.

The appeal against sentence was dismissed. The sentence of seven years’ imprisonment was not manifestly excessive.

1. The trial judge was entitled to find that the appellant knew that Type 1 FGM was intended and that she assisted while it was carried out. His findings were based on the evidence and were neither irrational nor unreasonable. The Court of Appeal would not substitute its view for that of the judge who heard the trial.
2. Under the General guideline: overarching principles, a court sentencing an offence without a definitive guideline must consider the statutory maximum, relevant sentencing judgments and analogous guidelines. Any analogy must be applied carefully, with adjustments for differences in statutory maximum and offence elements. It is not a merely arithmetical exercise. The guidelines for causing grievous bodily harm with intent and causing or allowing a child to suffer serious harm were legitimate analogies.
3. The offence under section 3 of the Female Genital Mutilation Act 2003 involved active assistance or encouragement and was materially different from the omission offence under section 3A. The guideline for causing or allowing a child to suffer serious harm was the closest analogy. The removal of the child’s clitoris was plainly really serious harm, but under the revised grievous bodily harm guideline it was equivalent to Category 2 harm, not Category 1. The appropriate analogous starting point was therefore nine years. The 2019 decision in R v N was materially different and concerned an earlier version of the guideline.
4. Mitigation is not assessed arithmetically. Applying Petherick [2012] EWCA Crim 2214, the judge had to consider interference with family life, its lawful and legitimate purpose, and proportionality. Custody could not proportionately be avoided in this case. Family impact could justify mitigation, but there was no conventional percentage reduction.
5. The cultural context of FGM could not reduce the seriousness of the offence. It was relevant only to the extent that familial or societal pressure affected the appellant’s ability to resist. Delay was also fact-specific. Only excessive and unreasonable delay, not attributable to the offender and causing detrimental effect, could mitigate sentence; no fixed percentage applied. The reductions for mitigation and delay were sufficient. Although the corrected starting point would have produced a sentence of six years and nine months, the original sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): The appeal against sentence was dismissed. [2024] EWCA Crim 714
• Crown Court at Southwark: Mr Justice Bryan sentenced the appellant on 16 February 2024 to seven years’ imprisonment following her conviction after trial at the Central Criminal Court on 26 October 2023.