On 22nd March 2026, the provisions of the Sentencing Act 2026 (hereafter the Act) that relate to short custodial sentences and suspended sentences will come into force across England and Wales. The Act seeks to reduce prison overcrowding by expanding the range of sentences that may be suspended and by introducing a new presumption in favour of suspending certain custodial sentences.
The Act comes as a result of the final report from the Independent Sentencing Review completed in May 2025. It implements many of its recommendations, seeking to reduce reliance on custody, increase the management of defendants in the community where appropriate, and strengthen rehabilitative measures.
There are other aspects of the Act which do not yet have a fixed commencement date. This will be determined by Statutory Instrument. These further provisions include:
The Act will alter the structure of custodial sentences, resulting in Defendants sentenced to a Standard Determinate Sentence (SDS) being automatically released on licence after serving 33% of their sentence. This is reduced from the previous release point of 40%.
Defendants who are sentenced to a SDS for a serious violent or sexual offence, previously released automatically at 66% of their sentence, will instead be released on licence after serving 50% of their sentence. The Act does not make any changes to life or extended determinate sentences.
The Act also restructures the way custodial sentences operate. This will include a new ‘three-stage’ process that also gives additional power to prisons to impose longer additional periods in custody for misconduct whilst serving a sentence.
The Act will give further powers to the court when making community requirements for Community Orders or Suspended Sentences. These include prohibitions on driving and preventing offenders from entering pubs, clubs or other drinking establishments.
The more immediate changes, imposed from 22nd March 2026, are:
1. A presumption that a custodial sentence of 12 months or less will be suspended
Under Section 1 of the Act, any offenders who are sentenced to a period in custody of 12 months or less must have their sentence suspended, unless there are exceptional circumstances relating to either the offence or the offender which justify not making such an order.
This provision only applies to Defendants convicted after the 22nd March 2026 and does not apply retrospectively. Even if a sentence hearing is adjourned past the 22nd March 2026, it is the date of conviction which gives the court the new power.
What effect will this provision have?
Rather than giving a court the option to suspend a sentence if permitted, it instead creates a rebuttable presumption requiring a court to impose a suspended sentence. It is now law that offenders who do not have any exceptional circumstances and only just cross the custodial threshold will have any custodial sentence suspended.
Take the example of a Defendant charged with Strangulation or Suffocation under Section 75A of the Crime and Disorder Act 1998, who pleads guilty at the first opportunity and is therefore afforded 33% credit. If the offence is deemed to be in the middle of the sentencing guidelines of the offence – with Culpability in a Category ‘B’ and Harm in a Category ‘2’ – the starting point for any sentencing court will be a custodial sentence of 1 year and 6 months custody. Applying credit of 33%, the sentence will now have a starting point of 1 year. Under the Act, the sentence must now be suspended unless there are any exceptional circumstances preventing the court from doing so. This represents a significant shift and reinforces the importance of entering a guilty plea at the earliest opportunity.
Will short term immediate custodial sentences no longer exist?
The ‘exceptional circumstances’ exception to the presumption means that, for a minority of cases, custodial sentences of less than 12 months will still exist for certain offenders.
Exceptional circumstances are not specifically defined by the Act, but could include:
A lengthy history of previous convictions.
A history of breaching court orders or responding poorly to supervision in the community.
A Defendant who has spent a period of time remanded into custody and is thus ‘time served’ by the imposition of an immediate custodial sentence.
For example, a Defendant who serves the full 182 days within the Crown Court custody time limit and then is sentenced to a period of 12 months imprisonment may not have a sentence automatically suspended as they will already have served the equivalent of a full year in custody.
Where an offender poses an immediate risk to others of physical or psychological harm that could only be prevented through imprisonment.
The court will, of course, have to consider all circumstances in a case to overcome this presumption. Short-term immediate custodial sentences will likely be reserved for repeat offenders where no suitable alternative remains.
2. The ability for the court to now suspend sentences up to 3 years in length
Section 2 of the Act grants the power to the court to suspend a sentence of up to 3 years’ custody for any conviction after the 22nd March 2026. As above, it is important to know that it is the date of conviction which determines whether this power is available to the court.
This change is significant as there are many offences that, even with maximum credit, cannot be suspended as the sentencing category range does not allow the sentence to go below the 2 year, ‘suspendable’ threshold under the current legislation. The following examples illustrate the practical effect:
Possession with intent to supply Class A drugs.
An offender that would typically fall into the Category of ‘Significant Role’ for culpability and Category ‘3’ for harm, representing the typical Class A ‘street dealer’ would have a sentence with a starting point of 4 years 6 months’ custody.
If such a Defendant entered a guilty plea at the first available opportunity, that sentence would be reduced to a period of 3 years, before any mitigation. This sentence would now be open to the court to suspend, whereas before the only available option would be custody.
Robbery
An offender who commits a ‘street level’ robbery, without a weapon being produced, is likely to face a sentence which falls into Category ‘2’ for harm and Category ‘B’ for culpability, with a starting point of 4 years’ custody.
Even if the Defendant pleads guilty at the PTPH, 25% credit would reduce any sentence to 3 years before any further mitigation, open to suspension for the court under the new legislation.
Controlling / Coercive behaviour
An offender who pleads to the most serious form of controlling / coercive behaviour, such that it falls into a Category ‘A’ for culpability and Category ‘1’ for harm, faces a sentence with a starting point of 30 months’ custody, and a maximum of 4 years’ imprisonment.
A plea at the first appearance or at PTPH would afford the Defendant a minimum of 25% credit. Even at the maximum sentence on the guidelines, the new legislation allows for any sentence of imprisonment imposed to be suspended.
Domestic burglary – especially ‘3rd strike’ offenders
Under section 314 of the Sentencing Act 2020, a Defendant who is convicted of a 3rd domestic burglary from 1st December 1999 onwards faces a minimum sentence of three years’ imprisonment. With credit for such a sentence being limited to 20% under section 73, the minimum possible sentence is one of 876 days, or 2 years and approximately 4 months.
The 2026 Act, in conjunction with the case of R v Uddin (Faris) [2022] EWCA Crim 751 which allows for mandatory minimum sentences to be suspended where appropriate, means that this sentence could now be suspended.
This is particularly significant where the previous convictions are historic, the defendant has committed no further offences, has responded well to previous orders, or presents strong personal mitigation supported by a positive Pre-Sentence Report.
3. The extension of the period for deferring a sentence from 6 months to 12 months
One of the more minor provisions of the Act is to increase the period of time for which a court is able to defer the passing of sentence from 6 months to 12 months. This gives the court further time to assess a Defendant’s behaviour post-conviction, including continued gainful employment, complying with conditions such as a curfew or to move beyond a significant life event such as childbirth. An increase to the deferment period can provide the court with more information about how the Defendant is likely to behave if a non-custodial sentence were imposed.
Whilst deferment of sentence is an option available to the court, case law such as R v Swinbourne [2023] EWCA Crim 906 confirms that it should only be exercised in a ‘small group’ of cases where the court may be persuaded to impose a lesser sentence if the Defendant complies with the terms of the deferment.
The effects of the changes
Whilst not all of the provisions of the new Act will come into force on the 22nd March, there may well be an increase in the number of Defendants who, given such a drastic change in their likely sentence, will choose to plead guilty to maintain their credit and receive a sentence capable of being suspended. Criminal practitioners should be aware of the changes in the law so they can best advise their clients as to plea, credit and the possible outcomes of their case given the new changes.
Will legal aid be affected?
The current Legal Aid Eligibility Guidance states that, when considering granting of legal aid, the criteria under Section 17(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 must also be considered. This is also known as the ‘Widgery Criteria’. One of the main considerations of the criteria is whether a Defendant will lose their liberty if convicted. Loss of liberty includes any sentence of imprisonment, even if it were to be suspended. Unless there is a wholesale reduction in custodial thresholds within the sentencing guidelines, legal aid eligibility will remain unaffected under the new Sentencing Act.
Will the changes work?
Spending short-term periods in custody are consistently linked with high levels of re-offending. The 2019 Ministry of Justice report confirms as much – the shorter a period in custody is, the more likely that the Defendant is to go on to reoffend. Unlike a community-based sentence, a period in custody can more readily lead to loss of employment, livelihood and connections with the community. Defendants who spend even a month in custody are liable to lose housing, relationships and other factors which can be key in preventing offending. They spend all of their time then surrounded by more serious offenders and can be influenced to continue down a path of criminality that leads to successive periods in custody.
Short-term custodial sentences often creates a cycle of disruption, loss of stability and repeated offending, particularly where defendants are unable to reintegrate into employment or housing. Bringing in a requirement that sentences under 12 months must be suspended except in exceptional circumstances should address this cycle. However, it remains to be seen exactly what are considered to be ‘exceptional circumstances’ and how such a power is used to see if there is a measurable change.
Is the Criminal Justice System ready for this change?
One of the main concerns with the Act – and why many of the provisions are yet to be implemented – is the increased workload it will replace on the Probation Service. The Probation Service is already under immense pressure under current legislation. Rehabilitation requirements take large amounts of time to complete due to a shortage of available staff. A contested trial in the Magistrates’ court where a Defendant is alleged to have breached a community order or suspended sentence can take months to be listed for a first hearing. Electronic monitoring requirements for curfews or alcohol abstinence, currently outsourced to a private company, can be unreliable or take weeks to implement.
Increasing the number of defendants which are to be supervised by probation under a suspended sentence order will increase the workload further. Without proper funding and increased staffing levels within the Probation Service, it is easy to foresee that a Defendant may be unable to properly rehabilitate within the community as intended by the court and the cycle of re-offending could begin again. Reducing both the criminal case backlog, and overcrowding prisons, are certainly a priority and may be helped by the Act. But such measures are of no use if the Probation Service becomes overwhelmed by the increase of Defendants that require supervision. The Government has pledged £700m in funding for the Probation Service until 2029. Whether that funding will be sufficient, particularly once intensive licence periods are implemented, remains uncertain. The success of the Act may ultimately depend less on the wording of the legislation and more on the capacity of the Probation Service to deliver it.
This article primarily details the changes found in Sections 1 and 2 of the Sentencing Act 2026, as they have a fixed date for being in force. A further article will address those changes which do not yet have a date for becoming in force.
Joshua Matthews
Cobden House Chambers
23rd February 2026
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