The Independent Sentencing Review – “In the summer of 2024, capacity pressures brought the prison system dangerously close to collapse. The adult prison population, estimated to be over 87,000 as of April 2025, currently exceeds the capacity the system is designed to accommodate and is projected to increase”.

The Sentencing Act 2026 (‘The Act’) received Royal Assent on 22 January 2026 and has brought with it a series of significant reforms, replacing much of the Sentencing Code.

The Act could have a huge impact on a defendant’s sentence, creating a presumption towards suspended sentences, an expansion on the range of sentences available for suspension, and changes to the role of the Sentencing Council.

The primary purpose of the reform is to reduce prison overcrowding and the reliance on custody, whilst increasing the management of defendants in the community and strengthening rehabilitative measures.

During this blog, JMW Solicitors break down the key changes the Act will bring, and the impact this may have on you.

Fixed Commencement Date: 22 March 2026

Several key provisions come into force on 22 March 2026, affecting anyone convicted on or after that date. This means that even if your sentencing date is adjourned beyond 22 March, the Act does not apply; it is the conviction date that gives the court the new power.

What is a suspended sentence?

A suspended sentence is a term of imprisonment which does not take immediate effect. Instead, you are sentenced to prison, but the term is served in the community (‘suspended’), provided you commit no further crimes within the specified time period.

Will short-term custodial sentences still exist?

In short, yes – for ‘exceptional circumstances’, which is not defined. This is deliberate because it preserves judicial discretion. For example, R v Bassaragh [2024] EWCA Crim 20 shows how courts interpret this phrase. Although the case involved pregnancy (and a mandatory firearms minimum), it clarifies the type of factors that may amount to exceptional circumstances.

Section 277A also confirms that the presumption does not apply where specific exceptions exist (e.g., the offender is already in custody, certain breach‑related offences, supervision‑related cases or where the person has been admitted to hospital under section 35, 36 or 38 Mental Health Act 1983).

1)    Section 1: Presumption of Suspended Sentence Order

At present, the Sentencing Council guidelines give the Judge the option to use their discretion to suspend a sentence. Now, a rebuttable presumption is written into the legislation.

S1 introduces a presumption in law that, for those over 18 at the time of conviction, a suspended sentence (if the prison term is 12 months or less) should be issued unless there are any ‘exceptional circumstances’ preventing the court from doing so. The effect of this on a defendant requires little explanation.

2)    Section 2: Custodial Sentences that may be Suspended

The court has been granted the power to suspend a sentence of up to 3 years' custody for anyone convicted on or after 22 March 2026. At present, the threshold for suspension is 2-years.

This has poignant practical effects. Prior to The Act, many offences, even with maximum credit, did not fall into ‘suspended sentence’ territory. For example, the starting point for a defendant convicted of Possession with Intent to Supply Class A Drugs (culpability 2, harm 3 in the sentencing guidelines) is 4 years 6 months' custody. With the new Act, the application of 33% credit for a guilty plea at the first opportunity means the presumption of a suspended sentence is activated.

3)    Section 5 - Deferring of Sentence

Currently, the court can defer ‘passing’ a sentence for 6-months. This allows them time to assess a defendant’s behaviour post-conviction, their compliance with court orders, and their personal circumstances (such as employment prospects). This deferment period is being extended to 12 months. Although deferment is only used in a handful of cases, it is of assistance to defendants where it is applicable, working hand-in-hand with the introduction of S1 and S2 above.

In satisfying ‘the interests of justice’, the Legal Aid Agency ask whether a defendant may face ‘loss of liberty’ through a custodial sentence. This includes a suspended sentence, and thus, to this extent, Legal Aid eligibility should not be affected by this reform.

4)    Section 3 – Income reduction order

Those issued suspended sentences may have an order requiring an offender to pay a percentage of ‘excess monthly income’. Separate regulations determine how the amount is calculated, but it must not exceed 20%.

5)    Section 12: Rehabilitation Activity Requirement (RAR days)

This removes the requirement to specify the maximum number of RAR days on an order. They will now be called a ‘probation requirement’. The change is meant to simplify community-based sentencing, to give the Probation Service more flexibility and to modernise the terminology.

6)    Sections 14 to 17 - new community order requirements:

a)    Driving prohibition requirement;

b)    Public event attendance prohibition requirement;

c)     Drinking establishment entry prohibition requirement; and

d)    Restriction zone requirement.

Together, these provisions give the court a range of options in restricting an offender’s movements. For example, an offender can be prohibited from driving a vehicle at particular times of the day or in specified locations. They can even be prohibited from driving a particular type of vehicle. With regards to section 15 (which updates Schedule 9), a “public event” means “any event to which the public or a section of the public has access, whether on payment or otherwise.”

7)    Section 44: Amendments to the Bail Act 1976

The previous presumption in favour of bail where there was no real prospect of the defendant receiving a custodial sentence has been extended to include offenders eligible for a suspended sentence.  

No Fixed Commencement Date

1)    Standard Determinate Sentences (SDS)

This is a fixed-term prison sentence specified by the court. Section 23 of The Act makes changes to the release points for adults serving SDS. It has not yet been confirmed when these specific changes will come into force, however it is proposed that in the Autumn of 2026:

• Those serving SDS where automatic release is 50%: automatic release will change to 33%.
• Those serving SDS of 4 years or more (imposed for serious specified sexual and violent offences – S15 Criminal Justice Act 2003), where automatic release is 66%, automatic release will change to 50%.
• Reassuring to the wider public, for those most serious cases (under S15 Criminal Justice Act 2003) where there is a finding of ‘dangerousness’, parole remains no less than 66% of the SDS.

2)    Home Detention Curfew (HDC)

Presently, prisoners can be released between 15 and 180 days before their scheduled release date. The offender is then usually monitored by an electronic tag. It is proposed that in the Autumn of 2026, this is to be replaced by an ‘earned progression model’ (recommended by the Sentencing Review in 2025). This model would consist of breaking the sentence into thirds: the custody stage, the post-custody stage, and the ' at-risk’ stage. EDS are excluded from this.

3)    Fixed Term Recall (FTR)

If a defendant breaches a term of their release, they can be recalled. At present, this is for a fixed term of 28 days if you are serving an SDS of 12 months or more, and 14 days if you are serving less than 12 months. Section 32 of The Act will increase the length of Fixed Term Recalls (FTR) to 56 days, irrespective of sentence length.

The Impact on You

As outlined, the Act brings with it the ability for defendants to serve their sentence within the community in much wider circumstances. For those convicted, this provides them with the ability to engage in rehabilitation, maintain employment, and support their family. Whilst immediate custody in some cases is unavoidable, it often brings a whole host of further issues upon release.

However, as addressed within the Independent Sentencing Review, ‘our probation system is currently under great pressure’, and it is feared that these reforms could work as a pressure cooker for an already overstretched public body. The UK Probation Service has seen significant increases in government funding over the last few years, largely driven by increasing pressures within the Criminal Justice System and the move towards community‑based sentences. The 2025 Spending Review allocated up to £700 million per year by 2028–29 to probation services. Alongside these structural changes, the government announced funding for at least 1,000 new trainee probation officers by March 2025, with a further commitment to recruit 1,300 officers by March 2026. A 45% increase in probation funding was also confirmed in a 2025 Ministry of Justice factsheet.

However, although funding has risen sharply, various reports highlight many staffing gaps and heavy workloads, warning that even with extra investment, probation services will still face a substantial officer shortfall by 2026–27.

Overall, the reforms reflect a strategic shift toward reducing reliance on short prison sentences and assisting probation’s capacity to supervise offenders safely in the community

Undoubtedly, things need to change. However, as with any reformation, only time will tell whether such changes assist or undermine the issues currently faced by the Criminal Justice System. Will the pressure released from one part of the system simply be shifted to another part? Monitoring in the community will become more complex, and it remains to be seen whether ‘breach courts’ will become a more regular feature in the Crown Court diary.