Bail First, Custody Last - Sentencing Act 2026 Key Changes. An article by Oliver Shipley and Holly Thompson.

Bail First, Custody Last!

Sentencing Act 2026: Key Changes You Need to Know, and Fast

The Sentencing Act 2026 marks a decisive shift in criminal practice, procedure and legislation.  Its message is clear: custody is no longer the default—whether before trial or after sentence.

For defence practitioners, it is vitally important that note is taken of the immediate impact in two areas: bail decisions and short custodial sentences.

What follows, we hope, is a focused breakdown of the changes that matter in practice.

REFORMS TO THE BAIL ACT 1976

The most immediate operational change is in how courts approach remand. The reforms are designed to significantly reduce remands into custody before trial.

The New Test: “No Real Prospect of Immediate Custody”

The threshold has shifted and courts must now consider whether there is no real prospect of immediate custody, rather than custody in general.

This matters because it aligns directly with the new presumption against short custodial sentences, which will be addressed later in this article. Accordingly, if a defendant is unlikely to receive an immediate prison sentence, remand becomes much harder to justify. This applies both at the pre-trial stage and also where a defendant has been convicted but is awaiting sentence.

We expect to see stronger bail arguments in borderline cases than previously before. If custody is unlikely, detention should now be the exception.

ELECTRONIC MONITORING

The role of electronic monitoring has also been materially expanded. Tagging is no longer confined to cases where custody would otherwise be unavoidable. Instead, it can now be deployed more flexibly as part of a broader suite of bail conditions. This reflects a clear policy intention to equip courts with workable alternatives to remand, allowing risk to be managed without resorting straight to detention.

Defendants should be ready to propose robust, structured bail packages that include tagging. Tagging will inevitably become part of the default toolkit.

STATUTORY RECOGNITION OF PERSONAL CIRCUMSTANCES

The statutory framework has also been strengthened by requiring courts to consider certain personal characteristics in every bail decision.

Certain factors must now be expressly considered:

·         Pregnancy;

·         Primary caregiving responsibilities;

·         Experience as a victim of domestic abuse.

While such factors were previously relevant, their inclusion in legislation ensures greater consistency and elevates their importance within the decision-making process.

These factors now move from discretionary to mandatory consideration and will strengthen submissions based on vulnerability and dependency. These are no longer “soft” mitigation points now - they are statutory considerations.

WILL THE PRESUMPTION TO SUSPEND BE THE END OF SHORT CUSTODIAL SENTENCES?

We arrive now at the second major shift, which is at sentence. For offences committed on or after 22 March 2026, there is now a default position that custodial sentences of 12 months or less should be suspended.

Therefore, courts must impose a suspended sentence where:

·         a custodial sentence is justified; and

·         the term is 12 months or less.

The legislation does, however, identify circumstances in which the presumption of suspension does not apply. These include cases where:

1.      the offender is already in custody or on remand;

2.      where consecutive sentences exceed 12 months;

3.      where the offending is connected to a breach of an existing order; or

4.      where there is a significant risk of harm to a specific individual.

Point 4 is likely to arise in cases of domestic violence, and this may be difficult to litigate. How this assessment will be based is likely a combination of the evidence in the case and the input of the probation service. Note that the wording is significant risk, and so it brings with it a high threshold to reach. It remains to be seen how this will fold out in practice.

Importantly, the disapplication of the presumption does not remove the court’s broader discretion tosuspend a sentence; it simply removes the obligation to do so.

In the absence of any of those factors, departure from the presumption is only permitted where exceptional circumstances justify immediate custody.

Formal guidance on what constitutes “exceptional circumstances” has yet to be issued. In the interim, it will therefore involve both an objective and subjective assessment of each case and defendant. We anticipate this may be the “battle ground” on which immediate custodial sentences will be justified by the courts, and on which defence practitioners may likely advise an appeal. Careful note should be taken of any sentencing remarks where exceptional circumstances may be found to justify an immediate custodial sentence.

SUSPENSION EXPANDED: UP TO THREE YEARS

Beyond the presumption itself, the scope of suspended sentences has been widened. Courts may now suspend custodial terms of up to three years, an increase from the previous two-year limit.

The operational period of a suspended sentence may also extend to three years, provided that the custodial term exceeds two years.

The supervision period remains capped at two years, save for an unpaid work requirement.

Clearly the overall effect of these changes is to bring a wider range of offences within the ambit of suspension, including cases that would previously have resulted in immediate custody.

Certain categories of sentence remain excluded from suspension, most notably Extended Determinate Sentences and sentences imposed on offenders of particular concern. Clearly the most serious and high-risk cases must continue to be dealt with through custodial means.

DEFERRED SENTENCES: PROVE YOURSELF... FOR LONGER!

The maximum deferral period has increased from six months to 12 months. This provides courts with greater flexibility to facilitate rehabilitation prior to sentence.

This is particularly relevant in cases involving younger defendants or those whose offending is linked to identifiable and potentially addressable issues, such as substance misuse. The increased timeframe allows for more meaningful intervention and a more informed assessment of progress. It is something which we anticipate being utilised in appropriate cases.

FURTHER CHANGES?

There are also further changes to Whole Life Orders in respect of the murder of Emergency Service Workers. Where the offence is motivated wholly or partly by actions taken by the victim in the course of their duties, the starting point for sentencing is now a whole life order. This applies even if the victim was no longer serving in that role at the time of the offence. There are also further amendments that will come into force over the next two years that provide the court with a wider range of conditions to attach to a sentence, and a provision for early release from custody through good behaviour and engagement.

THE BOTTOM LINE

The direction of travel under the Sentencing Act 2026 is clear: custody is no longer the starting point, but a measure that must be justified at each stage. The combined effect of the bail reforms and the presumption in favour of suspension reshapes how risk, proportionality and necessity are assessed in practice.

For defence practitioners, this creates real opportunity as much as responsibility. The most effective advocacy will be grounded in early, well-prepared and structured submissions—whether advancing credible bail packages, identifying the absence of a real prospect of immediate custody, or addressing the limits of the new sentencing framework.

How these reforms will settle in day-to-day practice remains to be seen. What is certain, however, is that the arguments are now there to be made—and will need to be made carefully, consistently and with precision.