R v Andrew Leach

Under section 36 of the Criminal Justice Act 1988, appellate intervention requires a sentence to be not merely lenient but unduly so, and the threshold is high. An attempted incitement of a child to engage in sexual activity will ordinarily require immediate custody. A non-existent decoy child generally warrants only a small Step 2 reduction, although genuine early voluntary desistance may justify more. Sentencing judges must apply culpability and harm adjustments without routine arithmetic deductions. Even after finding undue leniency, the court retains discretion to leave the sentence unchanged. Here, the suspended sentence was unduly lenient but remained in place because of the offender’s age, lack of relevant or subsequent offending, stable circumstances and low imminent risk.

Following convictions at Worcester Crown Court for attempted sexual communication with a child and attempting to incite a child to engage in sexual activity, the offender received concurrent suspended custodial sentences, a fine and ancillary orders. The Solicitor General referred the sentence under section 36 of the Criminal Justice Act 1988 as unduly lenient. The Court granted leave. The central issues were whether the sentencing judge had correctly applied the guideline’s starting point and adjustments, whether immediate custody was required, and whether an unduly lenient sentence should ultimately be altered.

The court found the sentence unduly lenient but exercised its discretion not to quash or replace it.

1. Section 36 threshold. A reference under section 36 of the Criminal Justice Act 1988 addresses gross error, apparent undue leniency, substantial departure from ordinary sentencing norms and public confidence. Intervention requires more than mere leniency. The sentence must be unduly lenient, and the threshold is high. The court applied the approach in R v X, Y and Z [2026] EWCA Crim 845 at [4]. Granting leave does not compel a change of sentence. The court retains a discretion to leave it unchanged, as recognised in Attorney General's Reference (No. 4 of 1989) (1989) 11 Cr App R(S) 517.
2. Guideline calculation. The judge correctly identified a five-year starting point. The presence of one or more culpability A factors places an offence in category A. Multiple factors may justify an uplift, but the guideline does not require a routine arithmetic deduction where only one factor is present. Any downward adjustment must reflect identified features of culpability or harm. There were in fact two category A factors: grooming and a significant age disparity.
3. Attempt adjustment. For an attempted section 10 offence, harm is assessed by the sexual activity intended, followed by a Step 2 adjustment for the absence or reduction of actual harm. Where the child is a decoy and the offender would otherwise have carried out the offence, only a very small reduction will usually be appropriate. Early voluntary desistance may justify a larger reduction. The judge considered mitigation before the attempt adjustment, contrary to the guideline’s sequence, although the court considered that the correct sequence would not have altered the result.
4. Custody and final discretion. In accordance with R v Reed [2021] EWCA Crim 572, attempted incitement of a child to engage in sexual activity will ordinarily require immediate custody. A community order with rehabilitation requirements is confined to very particular cases and was unavailable here because the offender lived in France. The court concluded that a longer sentence should have been imposed and could not have been suspended. Nevertheless, considering the offender’s age, lack of relevant previous or subsequent offending, stable life in France and absence of an imminent reoffending risk, the balance of justice and mercy favoured leaving the sentence unchanged. The later suspension changes in section 2 of the Sentencing Act 2026 did not apply.

1. Court of Appeal (Criminal Division): On the Solicitor General’s reference under section 36 of the Criminal Justice Act 1988, the court granted leave, found the sentence unduly lenient, but exercised its discretion to leave it unchanged.
2. Crown Court at Worcester: Following trial, the offender was convicted and sentenced on 20 February 2026 to two years’ imprisonment suspended for two years on count 2, a concurrent 12-month suspended sentence on count 1, a fine and ancillary orders.