The Sentencing Act 2026 (“the Act”) came into effect on 22 March 2026. This has led to significant amendments to the sentencing guidelines and The Bail Act 1976 (“the Bail Act”) that criminal practitioners should be aware of when advising and representing clients.
Sentencing guidelines
Purposes of sentencing
Prior to the amendments, one of the five purposes of sentencing was the protection of the public. This now expressly includes the victims of crime.
Presumption to suspend short custodial sentences
Where an offender was convicted before 22 March 2026, if the shortest term commensurate with the seriousness of the offence is 2 years or less, the court should consider whether it is appropriate to suspend that sentence. The court should weigh the relevant factors in the sentencing guidelines to decide whether it is possible to suspend the sentence.
However, the Act introduced a presumption that custodial sentences of 12 months or less must be suspended. The presumption is applicable to offenders convicted on or after 22 March 2026, unless any of the following exceptions apply:
- The offender is in custody (either serving a sentence, on remand for another offence, or detained under a hospital order)
- The offender is being resentenced for breaching a community or suspended sentence order
- The offence was committed while the offender was subject to a community or suspended sentence order
- The commission of the offence, or an associated offence, was a breach of a court order or was closely connected with a breach of a court order (whether or not that breach constituted a criminal offence)
- There is significant risk of physical or psychological harm to an individual
- Exceptional circumstances relate to the offence or the offender which justify not suspending the sentence.
If the sentence is not to be suspended under the presumption or if the shortest term commensurate with the seriousness of the offending is more than 12 months and no more than 3 years, the court should consider whether it is appropriate to suspend the sentence so that it is served in the community under the supervision of the Probation Service.
Increase in the period for which sentencing can be deferred
A deferment order is available to a magistrates’ or the Crown Court. For offenders convicted of any of the offences before 22 March 2026, the court can delay the passing of a sentence for up to 6 months.
The Act increased the period for which sentencing can be deferred to up to 12 months for offenders convicted of all the offences on or after 22 March 2026.
Bail Act
Bail test
The presumption to suspend short custodial sentences outlined above means that immediate imprisonment will be less likely in cases where the presumption applies. Thus, the courts are expected to be able to predict more accurately whether an offender will be subject to immediate custody when deciding the outcome of a bail application.
Where an immediate custodial sentence appears unlikely, there is less justification for remanding a defendant. The ‘no real prospect’ test has therefore been amended to a ‘no real prospect of immediate custody’ test with fewer exceptions to bail applying.
The ‘no real prospect of immediate custody’ test will be applicable when the court considers:
- that there is no real prospect that the defendant will be sentenced to an immediate custodial sentence, and
- to defendants who have been convicted but are awaiting sentence.
Electronic monitoring
Prior to the amendments, the Bail Act only allowed electronic monitoring if the court was satisfied that without it the defendant would not be granted bail. However, the test to decide eligibility for electronic monitoring has now been amended, and it is not necessary for electronic monitoring to be an alternative to a remand.
Subject to the statutory conditions being met (see below), an electronic monitoring requirement will be available where the court finds that there is a real prospect of a suspended sentence and no real prospect of an immediate custodial sentence.
Statutory factors
Before the amendments, paragraph 9 of Schedule 1, Part 1 of the Bail Act set out the following factors that the court should consider when deciding whether to grant bail or remand:
- the nature and seriousness of the offence or default
- the character, antecedents, associations and community ties of the defendant
- any other factors which appear to be relevant.
The Act has now added the following factors to paragraph 9 of the Bail Act as potentially relevant factors:
- the defendant is pregnant,
- the defendant is the primary carer of another person, or
- the defendant has been the victim of domestic abuse.
The court could take these factors into account before the amendments. However, the fact that they have been included in the Bail Act will ensure that the court will consider them when deciding whether to grant or refuse bail.
Commentary
The combined effect of the Sentencing Act and the amendments to the sentencing guidelines and the Bail Act is that fewer offenders will be remanded pre-trial and imprisoned post-conviction. There will be greater reliance on conditional release systems and probation enforcement.
Further, the Act reinforces the Bail Act’s presumption in favour of bail by reducing the likelihood of imposition of short custodial sentences, hence weakening traditional justifications for remand while increasing the role of conditional, community-based supervision by the Probation Office both before and after conviction. Only the future will tell whether these implementations will achieve their goal and lead to a reduction in the numbers of prisoners.
Maria-Angeliki is accepting instructions from 1 April 2026, if you would like to discuss how she can assist, please contact her clerks at crime@st-philips.com
Useful links:
https://sentencingcouncil.org.uk/updates/amendments-to-be-made-to-sentencing-guidelines-on-20-March-as-a-result-of-the-sentencing-act-2026
https://www.gov.uk/government/publications/bail-act-1976-amendments/circular-no-2026-01-bail-act-1976-amendments-to-the-bail-framework-by-the-sentencing-act-2026
Bail Act 1976 – https://www.legislation.gov.uk/ukpga/1976/63
Sentencing Act 2026 – https://www.legislation.gov.uk/ukpga/2026/2/section/2/2026-01-22
This article reflects the law as of the date it was published. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
