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 pounds 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.