Toure, R v

LORD JUSTICE HADDON-CAVE: On 15th January 2019 in the Crown Court at Liverpool before His Honour Judge Wright (sitting as a deputy circuit judge) the appellant, Houlematou Toure (now aged 39) was convicted of five counts: counts 1, possession of an indecent assault image of a child, contrary to section 160 of the Criminal Justice Act 1988; count 2, attempting to distribute an indecent image of a child, contrary to section 1 of the Criminal Attempts Act 1981; and counts 3, 4 and 5, distributing an indecent image of a child, contrary to section 1(1)(b) of the Protection of Children Act 1978.

On 18th January 2019 the appellant was sentenced by His Honour Judge Wright to a conditional discharge for 12 months on each of those counts to run concurrently, together with the statutory surcharge. Having been convicted of an offence under Schedule 3 of the Sexual Offences Act 2003, the appellant was required to comply with the provisions of Part 2 of the Act (notification to police) for 12 months.

She appeals against conviction by leave of the single judge, who granted a representation order. We have been assisted today by the helpful and succinct submissions of

As the learned associate has said, the provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence and the usual reporting restrictions apply.

The facts

On 16th December 2017 (just over 12 months later) the appellant found the image on her phone and attempted to send the video to a person called Dio via Facebook Messenger. Her attempt was however blocked by Facebook, who eventually notified the police.

On 17th December 2017 the appellant successfully sent the video to someone with the name La Souer Fanta at 14:34 hours and to somebody called Queenta at 19.30 hours.

On 26th January 2018, at 13:20 hours, the appellant sent the video to somebody called Doss.

The appellant was arrested on 14th February 2018 and interviewed under caution in the presence of a solicitor. She handed in a prepared statement and made no comment thereafter.

The prosecution case was as follows. The prosecution did not accept the account given in the prepared statement by the appellant or in her defence case statement. In the prepared statement she admitted sending the video only to her friend Dio and not to anyone else. In fact, she sent the video to three separate people and did not include any message explaining that it was being sent as a warning by a concerned parent. She failed to provide contact details of the person who sent her the video. She failed to report receipt of the video to the police.

The defence case was that the appellant did not solicit or request the video and she mistakenly believed she had deleted it on the day that she received it, namely 4th November 2016, and when she later found it on her phone and distributed it to her friends, she had a legitimate reason for doing so.

The issues for the jury were as follows. On count 1, the questions were: (1) were they satisfied that it was more likely than not that the video was sent to the appellant without any request being made by her or on her behalf? If so, (2) was it more likely than not that she did not keep the video for an unreasonable period of time? If so, the verdict was not guilty. If on (1) they were not satisfied, then (3) were they satisfied that it was more likely than not that she had a legitimate reason for having possession of the video, ie (a) was her reason a genuine one and (b) if so, was that a legitimate reason? If so, she was not guilty.

On count 2 there was no dispute that she attempted to distribute the video on 16th December. The issue was whether it was more likely than not that she had a legitimate reason for doing so.

On counts 3, 4 and 5 it was not in dispute that she distributed the video twice on 17th December 2017 and once on 26th January 2018. The issue was whether it was more likely than not that she had a legitimate reason for doing so.

Detective Constable Tosney was the investigating officer. The appellant was arrested and interviewed only in relation to the attempted blocked sending via Facebook. Afterwards her phone was analysed, and the other distributions were found but it was not considered necessary to reinterview the appellant before charge. The officer, DC Tosney, was unable to trace the three addressees, La Souer Fanta or Queenta or Doss, but was able to trace Dio.

In cross-examination, it was put to DC Tosney that the full download from the appellant's phone revealed that there was in fact a context to her distribution of the video which supported the defence case. When she sent the video to Queenta she was socialising with her; the sending to La Souer Fanta appeared to be "bookended" by telephone conversations between them; it was accepted that Doss was a campaigner against child porn and he sent a message to the appellant a couple of hours after the video was sent to him saying "No, he is sick". Dio was somebody called Amdadou Diallo, whom the appellant had attempted to send the video to via Facebook. He had met her in Liverpool, and they had got talking because they were both from Guinea. They would chat whenever they would happen to bump into each other. He described her as a kind and caring person with whom he discussed what was going on back home, including politics and people being mistreated. He did not remember ever having a conversation with her about child abuse.

The appellant gave evidence that she had come to the United Kingdom from Guinea as a asylum seeker, having suffered physical and sexual abuse there and was now a British Citizen. She was a single mother and was active in campaigning against human rights abuses in Guinea. She was of good character. She was friendly with a West African lady called Rokia and it was Rokia who sent her this video in November 2016 after they had been discussing the sexual abuse of children and how horrible it was. The appellant opened the video, sent it to her friend Natine (who was not the subject of any count) and then deleted it, or so she thought. Over a year later, she said 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 decided to go through her phone to see if she could find the video. She did find it and sent it to her friend and telephoned her afterwards and they continued their discussion about the issue. Later that day she sent it to her friend Queenta (a single mother) to make her aware that children were being abused in this country. She was with Queenta at the Albert Dock at the time she sent it. She did not know that what she was doing was against the law. She 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. They had a conversation after she had sent it.

In cross-examination, she was asked whether, when Facebook blocked her attempt to send the video to Dio thirteen months after she received it, that set off alarm bells? She said no; Facebook did not say why it was blocked so she just used Whatsapp instead. She was asked why she sent it to Dio instead of straight to Doss, who was the most obvious person to show it to. She said that Dio was her friend and had children and so she wanted to warn him and other Guinea friends of the dangers of abuse in the West.

The appellant's friend, Mamadou Bah, gave evidence. He was active in the Guinea community in this country and campaigned against civil rights abuses. He confirmed that

The appellant's friend La Souer Fanta gave evidence. She was a single mother. She confirmed that she and the appellant had discussed their concerns about children being sexually abused and about the need to be careful about who you left your children with. She could not believe that it would happen in this country, so the appellant said that she was going to check her phone to see if she still had this video. The witness La Souer Fanta then received the video on her phone. It was disgusting, she said. The appellant phoned her and said it was proof this goes on everywhere. Ms La Souer Fanta confirmed that she was happy to leave her children alone with the appellant.

The appellant also called a character witness, Deborah Mulvaney.

Grounds of appeal

Ms Jones on behalf of the Crown submitted that neither statutory defence was made out. Regarding the defence of legitimate reason, she submitted the judge correctly ruled, prior to summing up, that the test was not subjective but an objective test for the jury, and even if a person holds a belief that is genuinely held, that does not make it an objectively legitimate reason in law. She submitted that the jury were correctly directed by the judge in his summing-up and that the judge dealt with the jury question correctly.

The issue before us is whether the judge's direction and his subsequent repetition of it to the jury were correct in law.

The appellant was convicted, as we have said, of offences under section 160 of the Criminal Justice Act 1988 and offences of distribution under section 1(1)(b) of the

Section 1(4) of the Protection of Children Act 1978 provides as follows:

Section 160 of the Criminal Justice Act 1998 provides as follows:

The appellant raised two defences at the trial. The first was the defence in relation to possession under section 160(2)(c), namely that the photograph was sent to her without any prior request and that she did not keep it for an unreasonable time. The second defence raised by the appellant at the trial in relation to both the counts of possession (count 1) and the counts of distribution (counts 3, 4 and 5) was the defence set out in section 1(4)(a) of the Protection of Children Act 1978, which is replicated in section 160(2)(a) of the Criminal Justice Act 1988, namely that she had a "legitimate reason" for possessing and/or distributing the video.

Ms Snowden takes no issue with the judge's summing-up as regards the defence under section 160(2)(c) but criticises the judge in respect of his direction to the jury in relation to "the legitimate reason" defence under section 1(4)(a) of the 1978 Act and section 160(2)(a) of the 1988 Act. In admirably succinct and clear submissions, Ms Snowden submitted that the judge was wrong, as she put it, to direct the jury that "the genuineness of the defendant's belief that she had a legitimate reason was irrelevant to whether the statutory defence was established".

The problem, in our judgment, with Ms Snowden's submission is that she has mischaracterised or misunderstood what the judge in fact said to the jury. In the course of the summing-up, having dealt with the first defence under subsection (c) of the 1988 Act, the judge then turned to the second defence, namely "the legitimate reason" defence and said this:

Thus, it is clear that the judge directed the jury that there were two separate questions. The first, was the reason put forward by the appellant for holding and then distributing this image of a small child being sexually abused by an adult male, namely that she was showing friends what sort of child abuse went on, a genuine truthful reason? Secondly, if so, was that reason "legitimate"?

The judge gave to the jury, as is standard practice when summing up, a route to verdict, which set out the steps and questions that the jury had to consider in sequence when arriving at their verdict.

In the course of the jury's deliberations the jury sent a note to the judge raising a question about this issue. After a discussion with counsel, the judge referred to his route to verdict which read as follows (in relation to the second defence):

When the jury were recalled for the judge to direct them in relation to the note which they had sent, the judge effectively repeated what was in the route to verdict and the direction that he had already given. He said this to them:

We have quoted extensively from the judge's summing-up and his remarks to the jury following the jury's note in order to set out the full reach of what the judge told the jury about this defence. In our view, the judge's analysis and summing up of the section 1(4)(a) defence of 1978 Act and the equivalent section 160(2)(a) defence under the 1998 Act was entirely orthodox and correct.

There are two questions to be asked and answered, as the judge pointed out to the jury and included in his route to verdict, namely: (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, as the judge told the jury, 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.

The judge, in our view, was entirely right to make it clear that the genuineness of the appellant's belief was irrelevant to the second question. Whilst the first question (namely, whether the appellant was telling the truth and genuinely believed the reason that she put forward) was a necessarily subjective question, the second question was, as the judge rightly emphasised, an objective question for the jury. As the judge elegantly pointed out to the jury, it was for the jury to set the standards for society as to whether a reason put forward (on this hypothesis, a reason genuinely held) was legitimate. As Ms Jones succinctly put it in her submissions: this was a "safeguarding" provision.

Ms Snowden relied on the case of Atkins, to which we have referred. Atkins was a case involving an academic who was found to have indecent images of children cached on his hard drive. The reason that he put forward for having such images was that he was engaged in legitimate academic research. He therefore raised the defence under section 160(2)(a) of the 1988 Act. Lord Justice Simon Brown, giving the judgment of the court, said this:

Ms Snowden relied on that passage in Simon Brown LJ's judgment to submit that the judge had failed properly to direct the jury. She submitted that the genuineness of her belief was a relevant factor to be considered as to whether the reason put forward was "a legitimate reason".

In our view, Ms Snowden is wrong about that and her reliance on the case of Atkins is misplaced. As Simon Brown LJ was at pains to point out, the central question "where the defence is legitimate search" will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs in the pretence of undertaking research, or by contrast is a genuine researcher. The facts of Atkins were entirely different and the context in which Simon Brown LJ was giving guidance were directed to the facts of that case, which are no doubt much more common. The essential issue in Atkins was regarding the first question, namely the genuineness of the defendant in that case's reason put forward, namely that he was engaging in academic research. Simon Brown LJ pointed out that courts are plainly entitled to bring a measure of scepticism to bear on such defences.

The facts in this case are markedly different to Atkins. In particular, both questions arose here distinctly, namely whether the appellant was telling the truth about the reason that she put forward for possessing and distributing this video, and secondly, whether the jury regarded the reason that she put forward, namely that she was a campaigner about child abuse or wanted to warn others, was a legitimate reason for possessing and distributing the video. In summary, the judge's directions were entirely correct, and the case of Atkins is distinguishable.

For all those reasons, whilst we understand why the appeal has been brought, this appeal is dismissed.