Law Report - ENTRAPMENT BY JOURNALISTS MITIGATED SENTENCE

Regina v Tonnesson; Court of Appeal (Criminal Division) (Lord Justice
Otton, Mr Justice Wright and Mr Justice Dyson) 17 February 1998

A JUDGE, in passing sentence on a defendant who had been entrapped by
journalists into supplying drugs, should have taken that entrapment into
account as a mitigating factor, and should have referred to it expressly in
his sentencing remarks.

The Court of Appeal allowed the appeal of Brenda Ann Tonnesson against a
sentence of 12 months' imprisonment imposed at Lewes Crown Court after she
had pleaded guilty to supplying heroin, and substituted a sentence of six
months' imprisonment.

The appellant, a heroin addict, had been approached in Eastbourne by a man
who claimed to know her. He was accompanied by two other men, who
subsequently transpired to be a journalist and a photographer from the News
of the World. They told the appellant that they worked for a sheikh who had
told them to buy him some drugs, and asked her whether she would get them
some heroin. They gave her £50 and she bought four wraps of heroin, and
gave them to the men.

Immediately after that an article appeared in the News of the World,
identifying the appellant by name and by a photograph. The police
interviewed the appellant, who readily admitted the offence. As a result of
the article the appellant was assaulted by a member of the drug fraternity
in Eastbourne, and received a threat to her life.

Jane Humphreys (Registrar of Criminal Appeals) for the appellant.

Lord Justice Otton said that the appellant, who suffered from ill-health,
had two convictions for minor drugs offences, but none for supplying drugs.
It had been submitted on her behalf that the judge had failed to refer to
the involvement of an agent provocateur and appeared not to have taken that
into account. Although it was legitimate for police officers to entrap
criminals, even in those circumstances some mitigation of the sentence was
possible. Where, however, the entrapment was by journalists, even more
weight and consideration should be given to that factor.

There was substance in those submissions. There could be no doubt that the
appellant's behaviour had merited an immediate custodial sentence. The only
question was whether the judge had given full weight to the particular
circumstances in which the offence had been committed.

The fact that the appellant had been set up to commit the offence could not
be ignored. She had been tempted by the journalists to obtain and to supply
the drug to them. As a result of their blandishments she had been led into
committing her first offence of supplying drugs. Had the men been police
officers, that would have mitigated the sentence.

Different considerations must, however, apply where the tempters were
investigative journalists. In the present case the journalists had
proceeded with the purpose of discovering the nature and extent of the
drugs scene in Eastbourne and exposing it in their newspaper. That purpose
was perfectly honourable, but the public might well be left with a sense of
unease that it had been necessary to go to such lengths, identifying the
appellant by name and photograph so that the police were obliged to bring
her to justice, and so that she was exposed to humiliation and threats.

Those were consequences which were most unfortunate, and in fairness to the
journalists were wholly unforeseen. However, it was appropriate to reflect
the element of entrapment in the case, and the unusual and exceptional
circumstances which followed from it. It was clear from R v Mackey and Shaw
(1993) 14 Cr App R (S) 53 that the matter should have been mentioned
expressly in the sentencing remarks so that the public could have been
assured that the entrapment by journalists had been properly reflected in
the sentence imposed.

In the exceptional circumstances of the case, coupled with the appellant's
obvious state of ill-health, there was room for the court to reduce the
sentence substantially.

Kate O'Hanlon, Barrister