By Ben Newton
R v Toure  4 WLR 17
The defendant was convicted of possession of an indecent image under s160 Criminal Justice Act 1988 and further offences of distribution of that image under s1(1)(b) Protection of Children Act 1978, and received a conditional discharge for twelve months (thus also requiring her to comply with notification requirements for twelve months pursuant to s82 SOA 2003).
Her defence was that she had come to the United Kingdom from Guinea as an asylum seeker, having suﬀered physical and sexual abuse there and was now a single mother and an active campaigner against human rights abuses in Guinea. Her friend Rokia sent her the video in November 2016 after they had been discussing how horrible the sexual abuse of children was. She opened the video, sent it to her friend Natine (who was not the subject of any count) and then thought she had deleted it. Over a year later, in December 2017, she was talking to her friend La Souer Fanta about child abuse being prevalent in this country and not just in Africa, but her friend did not believe her, so she went through her phone to see if she could ﬁnd the video, and, having done so, sent it to her friend and telephoned her afterwards to continue their discussion. Later that day she sent it to her friend Queenta (a single mother), who she was with at the time, to make her aware also that children were being abused in this country. She did not know that what she was doing was against the law, but just wanted to make people aware of what was going on. She also sent it to her friend Doss because he was active in the community working to protect children and raise awareness about human rights abuses, and they too had a conversation after she had sent it.
Having called witnesses to support her account it seems clear that she was able to establish the genuineness of her subjective belief that she had a legitimate reason for possessing and distributing the image. The issue was therefore whether it was an objectively legitimate reason for the purposes of s160(2) or s1(4).
As the Court of Appeal confirmed, there are two questions to be asked and answered: (a) is the defendant telling the truth about the reason that he or she put forward for possessing or distributing the material? If the answer to that question is no, then they must convict. If the answer is yes, then the jury are to go on to consider the second separate question, namely (b) whether or not that reason was a legitimate reason.
In his written directions of law the judge directed the jury that the genuineness of the defendant’s belief was irrelevant to the second question of whether the reason was legitimate. As he explained in his summing up: ‘if you are satisﬁed on the evidence that you have heard from her and the other witnesses that she was genuine when I said, ‘I kept it for this reason’, then you will need to ask yourselves a second question, and that is this: ‘Was that legitimate?’, and you answer that question. It is not a matter for the defendant whether she thinks that was a legitimate reason within the Act. You set the standards for society.’
The Court of Appeal held judge had not been wrong to direct the jury that the genuineness of the defendant’s belief was irrelevant to the second question, distinguishing the earlier case of Atkins v DPP  1 WLR 1427 and dismissing the appeal.
Benjamin Newton is instructed to defend those accused of the most serious and complex criminal offences, and regularly appears in high profile and legally significant cases. To read more about Ben, click here.