R v Peter Underwood [2026] EWCA Crim 122

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2026] EWCA Crim 122Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 29 January 2026
Before
LORD JUSTICE SINGHLORD JUSTICE DOVEMR JUSTICE GRIFFITHSReference by the Attorney General under s.36 Criminal Justice Act 1988
Between
REXCrownv
Between
PETER UNDERWOOD__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR C HOLE appeared for Attorney GeneralMR R QUAIFE appeared for Offender________JUDGMENT(Approved)
[1]The respondent was born on 23 November 1964. On 11 September 2025 in the Crown Court at Truro, he pleaded guilty to an offence of attempting to incite a child to engage in sexual activity, contrary to section 1(1) of the Criminal Attempts Act 1981. On 3 October 2025 he was sentenced by HHJ Carr to a sentence of 18 months' imprisonment suspended for 2 years. The judge attached a rehabilitation activity requirement of up to 20 days. A victim surcharge order was imposed. A sexual harm prevention order was imposed for a period of 10 years and an order was made for forfeiture and destruction of a mobile telephone. Since he had been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, the offender was required to comply with the provisions of Part 2 of that Act for 10 years, that is notification to the police. Since he had been convicted of an offence specified in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009, the offender will or may be included in the relevant list by the Disclosure and Barring Service. The facts[2]The facts are not in dispute for present purposes and can be taken from the Final Reference on behalf of the Solicitor General. In summary, the offender was in online communication with what he believed to be a 13-year-old child although it was in fact a decoy run by an online group of "paedophile hunters". He engaged in sexual conversation with this decoy profile over several weeks, inciting her to digitally penetrate herself and solicited indecent images from her.[3]The offender made contact with her on 23 December 2022 via the private messenger function within Facebook using an alias. He tried to persuade her to send photographs of herself in the bath and made a number of references to wanting to see her in her school uniform. He suggested sending her images of him masturbating on several occasions but did not do so. Several times he made reference to the fact that someone of his age should not be in contact with someone as young as her and that he could get into trouble. The conversation was still ongoing on 9 January 2023. By this time the relevant organisation had identified the location of the offender via his IP address. They contacted another volunteer group based in Cornwall. They went to the offender's home address to confirm he was the person in the images he had sent. Once they were sure they had correctly identified him, they arranged what they called a "sting" on 11 January 2023. They went to the offender's home address, located and detained him, live streaming the incident on Facebook and called the police. Police attended and arrested the offender.[4]On 21 July 2025 the offender first appeared in the Magistrates' Court and his case was sent to the Crown Court. At this stage a not guilty plea was indicated. However, at the plea and trial preparation hearing in the Crown Court on 11 September 2025, the offender entered a guilty plea. A pre-sentence report was ordered and the case was adjourned for sentence. Sentencing framework[5]The maximum sentence for an offence of this kind is 14 years' imprisonment. The Sentencing Council has issued a Definitive Guideline on Sexual Activity with a Child/Causing or Inciting a Child to Engage in Sexual Activity. Category 1 harm cases are where there is either penetration of vagina or anus using the body or an object or penile penetration of the mouth in either case by or of the victim. Culpability is assessed as follows. There are culpability A factors to which we will return and culpability B is where the factors in category A are not present. If a case falls within category 1A, the guideline recommends a starting point of 5 years' custody with a category range of 4 to 10 years. If an offence falls within category 1B the guideline recommends a starting point of 1 year's custody with a category range from a high-level community order up to 2 years' custody.[6]The guideline also states that in section 10 cases, that is section 10 of the 2003 Act, where activity is incited but does not take place, the court should identify the category harm on the basis of the sexual activity the offender intended and then apply a downward adjustment to reflect the fact that no or lesser harm actually resulted. The extent of downward adjustment will be specific to the facts of the case. Where an offender is only prevented by the police or others from carrying out the offence at a late stage or in attempts where a child victim does not exist, and but for this fact the offender would have carried out the offence, only a very small reduction within the category range will usually be appropriate. No additional reduction should be made for the fact that the offending is an attempt.[7]The Sentencing Council's General Guideline Overarching Principles mentions the consequence of delays. It notes that where there has been unreasonable delay in proceedings since apprehension, which is not the fault of an offender, the court may take this into account by reducing the sentence if this has had detrimental effect on the offender. This was the subject of guidance also from this Court in R v Timpson [2023] EWCA Crim 453 in particular [23], where William Davis LJ noted:
"The situation here was wholly different to the situation which is all too common in criminal proceedings. Offences are committed, they are reported promptly to the police who investigate them with reasonable expedition. The investigation concludes with evidence available to justify charging of the offender. Then, many months, sometimes years, pass before the offender is charged. That type of delay often will result in some reduction in the eventual sentence, particularly in cases where the offender pleads guilty. We observe that the reduction would be most unlikely to be as great as 25 per cent, particularly where the offences were serious, but some reduction would follow."
The sentencing process[8]The offender had no previous convictions. There were no victim personal statements in this case. A pre-sentence report was prepared. This noted that the offender did not seek to excuse his behaviour, describing a long history of the use of social media and specifically chatrooms, which he says became addictive and included sites which were sexually explicit. He denied intentionally seeking out children. The report noted that the offender had expressed remorse and a degree of insight, in that he now accepts that, had these been real victims, the impact of this offending would have been profound and lifelong. The report said that as a result of his offending having come to light the offender had moved address and his relationship had ended. He was in secure employment although he had been recently diagnosed with COPD, which would inevitably worsen over time. He was assessed as being a medium risk of future non-contact offending and as posing a medium risk of serious harm.[9]Before the sentencing court, in written submissions, the prosecution placed the case into category A culpability because the offender had asked the victim to penetrate her own vagina with her fingers, and into category 1 in respect of harm because of the significant disparity in age and because there was a request of images albeit not sexual images. That was how the matter was put by the prosecution. It is common ground now before this Court that that was in error.[10]It was acknowledged that there was some delay in this case given that the offence had taken place in late 2022 and early 2023 but the offender had not been charged until May 2025. In passing sentence, the judge said that it was a great sadness the offender had lost his good character at the age of 60. He noted the fact that it was a decoy made very little difference as he was perfectly convinced when he was communicating that it was a 13 year old child. He noted that the offender had been open about the problems he faces and concluded that he did not believe for a moment that he has a sexual interest in children.[11]In mitigation the judge noted that there was genuine remorse. The offender had reached the age of 60 and had previously been of good character and 3 years had passed since his arrest for reasons endemic to the system.[12]The judge placed the offence into category 1B. Although one of the factors indicative of category A was present (significant disparity in age), that was insufficient in his view to put it into the highest category. The judge said the notional sentence after trial would have been at the top of the category 1B range, that is 2 years' custody, allowing a 25 per cent reduction for the guilty plea that results in a sentence of 18 months' imprisonment. The judge then said that this would be suspended for 2 years, with a single condition of 20 days rehabilitation activity requirement. The judge said that he did not believe the offender would ever do this again. He was going to provide him with the support that ensures that he has the help if that position arose. Submissions on behalf of the Solicitor General[13]On behalf of the Solicitor General, Ms Hole submits that the total sentence imposed in this case was unduly lenient. It is acknowledged that the sentencing judge was right to place the case into category 1 in respect of the assessment of harm but she submits that the judge did not take sufficient account of the factors indicative of category A culpability and further, that he suspended the sentence without proper application of the Imposition Guideline and in circumstances where appropriate punishment can only be achieved by immediate custody.[14]When considering the assessment of culpability the judge had regard only to the factor that there was a significant disparity in age. In the present case the offender was 56 at the time of his offending and believed himself to be communicating with a child some 43 years younger. He also appreciated that he should not be chatting to that child. But submits Ms Hole, there was in truth a further factor indicative of category A culpability that sexual images of the victim were solicited. This is now a matter of agreement although it was not drawn to the judge's attention by the prosecution in the Crown Court. In this context Ms Hole reminds this Court that the Law Officers and this Court are not bound by a concession which is made by the prosecution (see R v Stewart [2016] EWCA Crim 2238 at [32 - 37] (Davis LJ)). She submits that images of the child in a bath plainly would have been sexual in nature.[15]Accordingly, Ms Hole submits that this case ought to have been placed into category 1A. This would have led to a starting point of 5 years' custody with a category range of 4 to 10 years. She submits that even allowing for some reduction for the personal mitigation, delay and the fact that no sexual activity in fact took place, since the child did not exist, as well as the appropriate reduction of one-quarter for the guilty plea, the resulting sentence would not have fallen within the range that can be suspended as a matter of law. She reminds this Court of what was said in R v Reed & Ors [2021] EWCA Crim 572; [2022] 1 Cr App R(S) 6 at [33] and [58]. Usually immediate imprisonment will be inevitable for offences of this type, even if a sentence can in law be suspended, although the Court said there may be exceptional circumstances which will permit a court to suspend a term. The Court again said at [70]:
"… usually the appropriate punishment will only be achieved by immediate custody, even when the victim is not a real child."
[16]Secondly and in any event Ms Hole submits that in suspending the sentence the judge made no explicit reference to the Imposition Guideline. Ms Hole submits there was no strong personal mitigation in this case. There was no evidence that immediate custody would result in significant harmful impact on other people. Although the judge must have concluded that there was a realistic prospect of rehabilitation, there were no circumstances in this case which could be considered exceptional. In conclusion she submits that appropriate punishment could only be achieved by a sentence of immediate custody. Submissions on behalf of the respondent[17]On behalf of the respondent Mr Quaife has made helpful and succinct submissions both in writing and at the oral hearing before us. He submits that the sentence was not unduly lenient. It was passed by a very experienced judge and was just and proportionate in all the circumstances. Mr Quaife reminded this Court of what has been said on many occasions by this Court ever since the Reference procedure was introduced in the 1988 Act, in particular in R v BRJ [2023] EWCA Crim 351 at [28] (Holroyde LJ). Mr Quaife fairly agrees with much of what has been said on behalf of the Solicitor General. First, he agrees this was a case which properly fell into category 1 in respect of harm. He agrees that there was a significant disparity of age and that there were sexual images solicited. Accordingly, he now accepts, although this was not the view of the sentencing judge, that this case fell into culpability category A. He therefore agrees that the starting point for a category 1A case is 5 years' custody with a range of 4 to 10 years. He nevertheless submits that the judge was entitled to go outside the category range in the particular circumstances of this case. He submits that is the only way in which justice could be done in this particular case. At the hearing before us he has submitted that the lower end of the category range should not be treated as some sort of "buffer". Mr Quaife has also drawn our attention to the pre-sentence report which concluded that the author did not get a sense that the offending in this case evidenced an exclusively distorted sexual attraction to children, rather than being part of a more broadbrush comfort with graphic sexual social media. That opinion had also been shared by the judge.[18]Accordingly Mr Quaife submits that the sentence in this case could reach the sort of level, even if only “by its fingertips”, where it could be suspended. In relation to the decision to suspend the sentence in this case, he submits that while the judge did not make explicit reference to the Imposition Guideline, this must have been in the judge's mind and this was indeed a case where it could properly be suspended. There was material which enabled the court to impose a suspended sentence in combination with a rehabilitation requirement as was mentioned in the case of Reed at [58]. At the hearing before us he has also informed the Court that the respondent has done everything in compliance with the rehabilitation requirement since the sentence was imposed. Our assessment[19]In essence we accept the submissions which have been made on behalf of the Solicitor General. We have reached the conclusion that the sentence imposed in this case was unduly lenient. It needed to be well above the maximum sentence of 2 years' custody that is capable of being suspended as a matter of law. It is now common ground, and we would endorse this, that the substantive offence attempted in this case would have fallen into category 1A by reference to the Definitive Guideline. As we have mentioned, that recommends a starting point of 5 years' custody with a range of 4 to 10 years. A reduction to be made to reflect the fact that the child victim did not in fact exist could only be very small because the reason why the offence was not completed was not for reasons to do with the respondent. The judge was entitled to take into account such mitigation as there was, including the respondent's previous good character until he was around the age of 60 and the delay in these proceedings. Nevertheless, we consider that the notional sentence after trial could not have fallen below 4 years' custody in this case. After giving an appropriate discount for the guilty plea of 25 per cent, that would result in a sentence of 3 years' imprisonment.[20]We bear in mind the consequences that the respondent will have to serve a sentence of immediate custody, where he has to date been given the impression that he would not have to and he has done things in accordance with the sentence in fact imposed. Nevertheless, in all the circumstances of this case, we have reached the conclusion that this Court must quash the suspended sentence order imposed and substitute a sentence of immediate custody. Conclusion[21]For the reasons we have given, we grant the Solicitor General leave to refer this sentence to this Court under section 36 of the 1988 Act. On that Reference, we quash the sentence imposed by the Crown Court and substitute a sentence of 3 years' imprisonment. We make it clear that is a sentence of immediate custody.

LORD JUSTICE SINGH: Ms Hole, what is to happen next?

[23]MS HOLE: My Lord, I understand the offender is now living in Northampton and I am told that the nearest custody suite to his home address will be the Northampton Criminal Justice Centre and that is 700 Pavillion Drive in Northampton. I understand that the offender is present in Court, and so I think there may be an application for some time for him to surrender.[24]MR QUAIFE: Would my Lords say midday tomorrow please?

LORD JUSTICE SINGH: We usually say 4.00 pm today.

[26]MR QUAIFE: 4.00 pm today then.

LORD JUSTICE SINGH: Can you just check that is going to be realistic today.

[28]MR QUAIFE: I checked earlier. I cannot say whether it will be realistic or not; we are beholden on the current train timetable.

LORD JUSTICE SINGH: I am reluctant to say midday tomorrow. I do not know if you want to take instructions from him.

[30]MR QUAIFE: I will.

LORD JUSTICE SINGH: You can certainly have a moment (Pause).

[32]MR QUAIFE: 4.00 pm, my Lord.

LORD JUSTICE SINGH: We will so order. It will be the custody suite to which reference has been made on behalf of the Solicitor General in Northampton by 4.00 pm today. I know that the respondent is in Court today and he will appreciate the consequence if he does not surrender to custody by the due time.

[34]MR QUAIFE: Certainly. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk