Toure, R v

The statutory defence of a legitimate reason for possessing or distributing an indecent child image requires two distinct inquiries. First, the tribunal must decide whether the reason advanced by the defendant was genuinely held and truthful. Secondly, if it was, the tribunal must decide objectively whether that reason was legitimate. The defendant’s belief that the reason was legitimate does not determine the second inquiry. It is for the jury to apply society’s standards when deciding legitimacy under the relevant provisions of the Protection of Children Act 1978 and the Criminal Justice Act 1988.

The appellant was convicted at Liverpool Crown Court of possessing, attempting to distribute, and distributing an indecent video image of a child. She said that she had retained and sent the video to friends in order to warn them about child abuse and raise awareness.

At trial, she relied on the statutory defences that the image had been sent without request and not retained unreasonably, and that she had a legitimate reason for possessing or distributing it. The appeal challenged the judge’s direction that, once the jury accepted the factual reason put forward, her belief that it was legitimate was irrelevant to the separate question of objective legitimacy.

1. Appeal dismissed. The trial judge’s directions on the defence of legitimate reason were orthodox and correct.

2. Under section 1(4)(a) of the Protection of Children Act 1978 and the equivalent defence in section 160(2)(a) of the Criminal Justice Act 1988, the jury had to answer two separate questions. First, was the defendant telling the truth about the reason advanced for possessing or distributing the material? If not, the defence failed. Secondly, if that reason was genuinely held, was it objectively a legitimate reason?

3. The first inquiry is subjective and concerns the truth and genuineness of the factual explanation. The second is objective. The jury, applying society’s standards, must decide whether a genuinely held reason is legitimate. A defendant’s belief that the reason was legitimate is therefore irrelevant to that second inquiry.

4. DPP v Atkins [2000] 2 Cr App R 248 did not assist the appellant. Its discussion of academic research concerned whether the asserted reason was genuine, including the need for appropriate scepticism towards a claimed research purpose. In the present case, genuineness and objective legitimacy arose distinctly. The jury had therefore been properly directed to determine both questions separately.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction.

• Crown Court at Liverpool: on 15 January 2019, convicted the appellant of possession, attempted distribution and distribution offences concerning an indecent child image; on 18 January 2019, imposed concurrent 12-month conditional discharges.