Why did the Court of Appeal declined to increase a sentence despite ruling it was 'unduly lenient'?
Andrew Leach was a 60-year-old man convicted of attempting to engaging in sexual communication with a child. The offence occurred in 2021 but did not come to trial until February 2026, as a result there was a five-year delay between the offence and the sentence. Leach was sentenced to a two-year period of imprisonment that was suspended for two-years. The prosecution appealed saying that the sentence was unduly lenient. The Court of Appeal heard the case and decided that Leach’s sentence was unduly lenient. It explained where the sentencing judge had gone wrong and why a longer prison sentence should have been imposed. Then it left his suspended sentence in place. That might sound contradictory. If the sentence was wrong, why leave it alone? The answer is that deciding whether a sentence was unduly lenient and deciding whether to increase it are separate questions.
Attorney General’s Reference (Andrew Leach) [2026] EWCA Crim 958 illustrates why the distinction matters.
The messages and the sentence
In 2021, Leach, then 55, began communicating on Facebook with an account presented as belonging to a 14-year-old girl. The account was actually operated by a volunteer from STOP UK. The prosecution relied on approximately 284 screenshots covering exchanges over several months, including sexual messages and encouragement to engage in sexual activity. Members of STOP UK later attended his home and the police became involved. Leach told officers that he knew the account was fake and had been trying to expose the people behind it. A jury convicted him in January 2026 of attempted sexual communication with a child and attempting to incite a child to engage in sexual activity. The following month, the judge imposed two years’ imprisonment, suspended for two years, for the incitement offence. There was a concurrent 12-month suspended sentence for the communication offence, together with a £1,000 fine and ancillary orders. The Solicitor General referred the sentence to the Court of Appeal as unduly lenient. It’s useful to distinguish the two offences before looking at the sentencing. Sexual communication with a child, under section 15A of the Sexual Offences Act 2003, concerns an adult aged 18 or over intentionally communicating with someone under 16 for sexual gratification. The communication must be sexual, or intended to encourage a sexual communication to the adult or another person, and the adult must not reasonably believe the child is 16 or over. A meeting or physical contact is unnecessary. Where the supposed child is an adult decoy, an attempted offence may be charged. We explain the offence and the evidence needed to prove it in our
knowledgebase guide to sexual communication with a child. In Leach’s case, the more serious attempted incitement offence drove the sentencing exercise. That matters because the judge used a five-year guideline starting point. Anyone reading that figure as the starting point for sexual communication under section 15A, which carries a maximum of two years, would understandably be puzzled.
How five years became two
The judge reduced the five-year starting point to four because he considered that only one factor placed the offence in the higher culpability category. He then deducted a year for mitigation and another because there was no actual child. Having arrived at two years, he suspended the sentence, taking account of the disruption imprisonment could cause to Leach’s life in France. The Court of Appeal found a problem with the first reduction. One relevant factor is enough to place an offence in the higher culpability category. There is no automatic year off because the offender has only one of them. A judge can move below the starting point where the facts justify it, but must explain what those facts are. Counting the factors and deducting a year does not answer that question. In any event, there were two relevant factors here: grooming and a significant age disparity. The reasoning for that first reduction therefore failed on the facts as well. The absence of a real child required separate consideration. It plainly matters that no child was actually harmed, but it doesn’t make the offender’s intentions disappear. The court considered the one-year reduction generous, while accepting that Leach had voluntarily stopped communicating before the confrontation and had not actively sought a meeting. Those were features of his conduct which could properly carry weight. There was a further difficulty with suspending the sentence. Attempted incitement of sexual activity would ordinarily attract immediate custody. The possibility of a community order with rehabilitation requirements in a suitable case did not help Leach: because he lived in France, he could not attend the relevant programmes. A rehabilitation proposal has to be something the offender can actually undertake. The court concluded that the sentence should have been longer and, under the provisions applicable to Leach, could not have been suspended.
Why the sentence stayed in place
That conclusion did not end the case.
Section 36 of the Criminal Justice Act 1988 gives the Court of Appeal a power to replace an unduly lenient sentence. It does not require the court to increase every sentence which crosses that threshold. By the time of the appeal, Leach was 60. He had no relevant previous offending and had committed no further offences during the approximately five years since these events. His circumstances in France had become more stable, and the triggers identified for the offending had gone. The probation assessment also needed to be read carefully. It identified a low risk of direct-contact offending and a medium risk of further indirect-contact offending, with no imminent risk of reoffending. That is more qualified than saying that he posed no risk. The court considered the assessment alongside his changed circumstances and the passage of time. Taken together, those matters persuaded the court that the balance of justice and mercy favoured leaving the sentence unchanged. The original sentencing errors remained errors. The court nevertheless decided against using its power to impose a different sentence on the man now before it.
What the defence needs to address
Leach’s convictions were unaffected and his suspended sentence remained in force. The decision does not give anyone a general exemption from an increased sentence because they are older, live abroad or have stayed out of trouble. It does, however, show why a defence response to an unduly lenient sentence reference should address both questions. There may be good grounds for defending the original sentence. There may also be evidence explaining why, even if the court finds it unduly lenient, increasing it now would be unjustified. Evidence of changed circumstances, rehabilitation and current risk needs to be put before the court and explained. A finding that the judge got the sentence wrong is a serious setback for the defence. As Leach’s case demonstrates, there can still be an argument to make about what should happen next. Chetwode Criminal Defence Solicitors advises on allegations involving sexual communications and challenges to sentences already imposed.
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