The Sentencing Act 2026: Key Changes and Practical Considerations
The Sentencing Act 2026 came into force on 22nd of March 2026 which marks a significant development in sentencing policy in England and Wales. This Act has introduced significant reforms to sentencing laws. While it does not fundamentally restructure the system, it marks a clear shift away from short custodial sentences toward a stronger emphasis on the community-based management of offenders. This Article seeks to explore these reforms and outline what they mean in practice.
Reforms
The Presumption
Pursuant to section 1 of the Sentencing Act 2026, the presumption is that the court must impose a suspended sentence order where the custodial sentence does not exceed twelve months imprisonment and such an order is available. The exception to the presumption is where the court is of the opinion that there are ‘exceptional circumstances which relate to the offence or the offender and justify not making the order’. This power will be contained in the new section 277A of the Sentencing Act 2020.When the Presumption does not apply
There are eight circumstances where the presumption in favour of a suspended sentence order does not apply, pursuant to section 277A(3).
- Where the Defendant is in custody at the time of the sentence as a result of a custodial sentence, being remanded in custody on other offences, or being committed to custody by an order of the court.
- Where the Defendant is in custody at the time of the sentence as a result of a custodial sentence or sentence of service detention or being detained for commission of offence during currency of detention and training order offences, or being kept in service custody in connection with another offence or having been remanded or admitted to hospital under the Mental Health Act 1983 or being committed to custody by an order of a service court. This second circumstance relates to orders under the Armed Forces Act 2006.
- Where the Defendant is detained in a hospital at the time of the sentence as a result of a hospital order or direction under section 45 or 47 of the Mental Health Act 1983.
- Where the Defendant is being sentenced for two or more offences on the same occasion and the term of those sentences is more than twelve months or those sentences are to be served consecutively which are in aggregate more than twelve months.
- Where the Defendant is being sentenced for an offence which is or already has been subject to a supervision order and the court is re-sentencing that offender on that order.
- Where the offence being sentenced was committed during the currency of a supervision order.
- Where the offence was committed in circumstances which constituted or occurred in circumstances closely connected with a breach of an order of a court, or an order or award made in proceedings in respect of a service offence within the meaning of the Armed Forces Act 2006. Such court order includes either civil or criminal. Examples of orders include restraining orders, SHPO’s and CBO’s.
- Where the court is of the opinion that making the order would put a particular individual at significant risk of physical or psychological harm. There is no clarity as to what level of physical or psychological harm is required, only that it is a “significant risk”.
Although there are eight circumstances where the presumption does not apply, it does not prevent the Defence from seeking a suspended sentence order and the court may still make one in such circumstances. A practical consideration for the presumption is that counsel will likely be invited to make submissions on whether it applies or not. The Probation Service is also likely to play an even more prominent role and may be asked to provide views on whether presumption applies.
There has been a longstanding issue with overcrowding of prisons in England and Wales. The case of R v Ali [2023] EWCA Crim 232 is often cited as illustrating the pressures caused by overcrowding within the prison system. In the year ending December 2024, 62% of custodial sentences imposed were for terms of one year or less. Therefore, restricting the use of imprisonment to sentences exceeding twelve months may help to alleviate pressure on prison capacity. As a result, space is prioritised for offenders serving longer terms rather than those subject to very short periods of custody.
Extension of the maximum sentence and operational period
The Sentencing Act 2026 has increased the maximum sentence of imprisonment that may be suspended to three years and has also extended the potential operational period to three years. Previously the maximum sentence capable of suspension was two years. However, the extended operational period of up to three years applies only where the custodial sentence imposed is between two and three years. Where the sentence is two years or less, the maximum operational period remains two years. Accordingly in the Magistrates court, there is no practical change, the operational period continues to be capped at two years.
The Act clarifies that extended determinate sentences or sentences for offenders of particular concern cannot be suspended. The Act justifies this on the basis that such cases concern the most serious and dangerous offenders and accordingly ensures they will not be eligible for suspended sentences.
Deferring a sentence
Section 5 of the Act increases the duration of which a sentence can be deferred from six to twelve months. This aims to provide a longer period of ‘testing’ with the hope in providing greater clarity of the offender’s prospects of rehabilitation.
Recognition of Domestic Abuse
The Sentencing Act 2026 inserts section 56A in Part 3 of the Sentencing Code. This states judges and magistrates are now required to explicitly state in open court when an offence is found to involve domestic abuse. This ensures a consistent record of domestic abuse, aiming to improve data collection and reflects the tracking of repeat offenders.
Concerns
Strain on probation
There is concern that the Act may place significant strain on the Probation Service, potentially overwhelming it as a result of the increased use of community sentences and enhanced supervision requirements. However, in response, the Government have committed to investing up to £700 million in the Probation Service by 2028/29, including the recruitment of at least 1,300 additional probation officers within the next year. Therefore, while the expansion of sentencing powers may increase pressure on probation services, this is not necessarily expected to develop into a critical issue, though it remains important to consider and to be kept under review.
Legal aid eligibility
A further concern relates to legal aid. Eligibility for legal aid is often triggered by the prospect of a loss of liberty. Due to the increased use of suspended sentence orders, questions arise as to whether cases likely to result in custodial sentence of twelve months or less will continue to attract funding. This could have a detrimental impact on representation. However, as a suspended sentence order remains a custodial sentence capable of activation, there is still a real prospect of loss of liberty. On that basis, the continued eligibility for legal aid is likely to apply.
Conclusion
In conclusion, the Sentencing Act 2026 introduces significant reforms to suspended sentence orders. The effectiveness of these changes will largely depend on the capacity and resourcing of Probation Services. Nevertheless, the Act clearly signals a stronger focus on the rehabilitation and community-based supervision of offenders.
This case law update was written by Pupil Barrister, Poppy Walker. Visit Poppy’s profile here.
