On 8 September 2025, the total prison population was 88,045. This was just 2% below the operational capacity of the prison estate (89,720). To make matters worse, projections indicated that by September 2026, the prison population would be 93,500, and by September 2028 it would be between 95,000 and 103,800.
To try to address the problem, the Sentencing Act 2026 (“the Act”) was passed. The Act sought to move away from using short sentences and to focus on managing offenders in the community. Several of the key changes are explained below.
The Presumption to Suspend Sentences
One of the biggest changes can be found in section 1 of the Act. This creates a presumption that any sentence under 12 months will be suspended. This applies if an offender was convicted on or after 22 March 2026.
The legislation sets out a number of exceptions to the presumption. These include where:
- The offender has been remanded in custody for another offence which is not an associated offence.
- The offender has been committed to custody by a court order.
- The aggregate of the consecutive sentences exceeds 12 months.
- The offender is subject to a Supervision Order and the court is re-sentencing the offender.
- The offender has breached a court order.
- The court is of the opinion that making the order would put a particular individual at significant risk of harm.
Changes to Suspended Sentences
Section 2 of the Act provides that, if an offender is convicted on or after 22 March 2026, the court can impose a custodial sentence for up to three years. This replaces the previous maximum of two years.
The three-year limit also applies in cases where there are two or more sentences that are served consecutively, and that aggregate to three years or less.
The operational period for a suspended sentence has also been extended to a maximum of three years, but only in situations where the custodial part of the sentence is longer than two years.
Extended determinate sentences or sentences for offenders of particular concern cannot be suspended.
Deferred Sentences
Section 5 of the Act, which amends the Sentencing Act 2020, extends the maximum period for which a court may defer passing sentence. The period has been extended from six months to 12. The power to defer sentence comes from section 1 of the Powers of Criminal Courts (Sentencing) Act 2000, which is consolidated into the Sentencing Act 2020; it permits a court, following conviction, to postpone sentencing to allow the offender to demonstrate changed circumstances, compliance with undertakings, or other conduct relevant to the appropriate disposal.
The extension to 12 months came into force on 22March 2026 and applies to all convictions on or after that date. During the deferral period, the offender is not sentenced and remains at liberty, subject to any conditions the court imposes. Once the deferral period is up, the offender returns to court, where the judge assesses whether the conditions have been met. If compliance has been satisfactory, the court is likely, but not obliged, to impose a more lenient sentence than it would have otherwise.
The practical effect of the extension is that courts now have a 12 month window to assess sustained behavioural change, compliance with treatment programmes, or other long-term undertakings such as maintaining employment or completing rehabilitation. A deferral of 12 months is particularly relevant where an offender’s circumstances are in flux. For example, they are in the process of completing a drug rehabilitation course, stabilising housing, or awaiting the outcome of care proceedings for dependent children. Further, the extension could be significant for young adult offenders aged 18 to 25, a cohort recognised by both criminological research and the Sentencing Council as being in a particularly transitional stage and especially responsive to rehabilitation.
However, while the positives of a longer deferral period are clear, courts should only impose it where it is in the interests of justice and where the offender consents, as has always been required under the statutory framework.
Domestic Abuse
Section 6 of the Act relates to domestic abuse. It states that if a court is passing a sentence for an offence that, in its view, involved domestic abuse by the offender, the court must state this in open court.
Changes to Prison Release Dates
The Act introduces the most significant restructuring of release arrangements for standard determinate sentences since the Criminal Justice Act 2003, which established the current halfway-point release system. The change operates through what the Act terms the Earned Progression Model, which is not yet in force but is expected to begin implementation in autumn 2026.
Under the current framework, prisoners serving standard determinate sentences are automatically released at the halfway point of their sentence, subject to licence conditions for the remainder. In the Earned Progression Model, the sentence is restructured into three stages. The first stage is custody, during which prisoners are expected to engage with work, education, and rehabilitation programmes. Automatic eligibility for release arises at the end of this stage, which is at the one-third point of their sentence, conditional on satisfactory engagement and behaviour in custody. The second stage is post-custody, which is described as intensive supervision under strict licence conditions. This stage replaces what would otherwise be the second-third of the sentence. The third stage is the at-risk or licence period. In this time, offenders will have continued supervision, with the risk of returning to prison if the imposed conditions are not met.
While early release will be automatic for prisoners who meet conduct standards, bad conduct during the custody stage can delay release beyond the one-third point, meaning the early release date is not a guarantee. Extra days in prison would be imposed through the adjudication system.
Under the current framework, for prisoners serving sentences for specified sexual or violent offences, the mandatory serving period is two-thirds of the sentence. The Act reduces that to one-half.
Prisoners on extended determinate sentences, life sentences, and whole life orders are excluded from the Earned Progression Model entirely.
In addition, with effect from 31 March 2026, the recall framework has changed for those on standard determinate sentences. Fixed-term recalls are now 56 days, regardless of sentence length, replacing the previous 14 or 28-day fixed-term recalls and, in most cases, the open-ended standard recall. The 56-day fixed recall is intended to introduce greater predictability for offenders, probation, and the wider system managing the course back into custody.
Changes to Bail
The Act amends the Bail Act 1976 to narrow the circumstances in which a defendant can be remanded in custody where an immediate custodial sentence is unlikely. Under the Bail Act 1976, a court may withhold bail on the basis that the defendant would be likely to receive a custodial sentence if convicted, which is one of the established exceptions to the general right to bail under section 4 of the 1976 Act.
The principal change is the amendment to the “no real prospect” test. Previously, the court was required to consider whether there was a real prospect that the defendant would receive a custodial sentence, including suspended sentences. Following the introduction of the presumption in favour of suspending custodial sentences of 12 months or less, the legislation now requires the court to consider whether there is a real prospect of an immediate custodial sentence. Where there is no real prospect of immediate custody, fewer exceptions to the general right to bail apply, making remand in custody less readily available. In practice, this means that when a court is considering whether to remand a defendant charged with an offence likely to attract a sentence of 12 months or less, the custody exception in the Bail Act is more difficult to invoke, because the court must now grapple with the fact that the likely sentence would be suspended rather than immediate.
The revised test also applies to defendants who have been convicted but are awaiting sentence.
The Act further expands the availability of electronic monitoring as a condition of bail. Previously, electronic monitoring could only be imposed where it was necessary to avoid remanding the defendant into custody. Under the new provisions, electronic monitoring may also be imposed where there is no real prospect of an immediate custodial sentence but there is a real prospect that the defendant will receive a suspended sentence, enabling courts to manage risk while preserving liberty.
Finally, the Act amends the statutory factors the court must consider when deciding whether to grant bail. In addition to the existing considerations, the court is now expressly required to consider whether the defendant is pregnant, a primary carer, or has been a victim of domestic abuse. Although such matters could previously be taken into account as relevant considerations, their express inclusion in the legislation is intended to ensure that they are consistently addressed in bail and remand decisions.
The change does not affect the other grounds for refusing bail under Schedule 1 to the 1976 Act. Risk of absconding, risk of committing further offences, and risk of interference with witnesses remain available independently of any consideration of likely sentence length.
