A Quiet Revolution in Crown Court Sentencing

Following the 2 Hare Court Crime Team Summer Seminar 2026, this article examines the most significant changes to sentencing law in England and Wales in over a decade.

The Background: A Prison System at Breaking Point

The Sentencing Act 2026 emerged from crisis. By early 2026, the prison population had exceeded 87,000, approximately 25 per cent above certified capacity. Every local prison was overcrowded and every probation course oversubscribed.

In October 2024, the government appointed David Gauke, a former Secretary of State for Justice, to chair an Independent Sentencing Review. His report, published in May 2025, recommended three reforms: an early release model; the abolition of most short custodial sentences in favour of suspended sentences and community alternatives; and an expansion of community punishments. The Bill received Royal Assent on 22 January 2026 and its core provisions came into force on 22 March 2026.

The reforms apply to anyone convicted on or after that date, whether following trial or guilty plea. The date of the offence is irrelevant. In cases of historic offending, it is the date of conviction that determines which sentencing framework applies.

Presumption in Favour of Suspension

There are two headline changes.

First, the maximum sentence that can be suspended has increased from two years to three years, giving courts greater flexibility at the mid-range of offending. The “normal” and well-established principles of suspending sentences apply to sentences of between 12 months and three years.

Second, and more significantly, where a court imposes a custodial sentence of 12 months or less, suspension is no longer discretionary. It is mandatory. The court must suspend the sentence unless one of the statutory exceptions applies. This is the presumption in favour of suspension, and it represents a fundamental shift in how short custodial sentences are dealt with.

The presumption does not apply where: the offender is already in custody; the aggregate of consecutive sentences exceeds 12 months; the offence was committed in breach of a court order; or a suspended sentence would place a named individual at significant risk of physical or psychological harm. That last exception preserves the court’s ability to impose immediate custody in domestic abuse cases. A further catch-all allows immediate custody to be imposed where there are exceptional circumstances relating to the offence or offender. What constitutes “exceptional circumstances” is not defined.

Changes to the Bail Assessment

The bail test has also shifted. Previously, bail could be refused where there was a real prospect of a custodial sentence. The new test asks whether there is a real prospect of immediate custody. The addition of the word “immediate” reflects the changes to the suspension of sentences regime set out above. For offences likely to attract a sentence of 12 months or less, the presumption of suspension means the answer to that question will often be no, which materially alters the bail calculation. A defendant who might previously have been remanded in custody may now be entitled to bail where the likely sentence falls within the mandatory suspension bracket.

Deportation

This is the change that caught many practitioners off guard. Under the old law, automatic deportation was triggered by an immediate custodial sentence of 12 months or more. Under the new law, it is triggered by an immediate or suspended custodial sentence of 12 months or more. The consequence is that a suspended sentence, which might previously have been seen as avoiding deportation consequences, now triggers the same automatic deportation regime. For defendants with leave to remain, this demands careful advice at the sentencing stage.

Early Release

The Act fundamentally restructures early release. The key thresholds are as follows:

For sentences of less than 4 years, the release point is one third. For sentences of 4 years or more but less than 7 years, the release point is one half for manslaughter, attempted murder, section 18 GBH, and specified sexual offences carrying life imprisonment, including rape and assault by penetration (“specified offences”); otherwise, one third. For sentences of 7 years or more, the release point is two thirds for specified violent or sexual offences carrying life imprisonment; otherwise, one third.

The following illustration, produced by Daniel Chadwick, demonstrates the practical effect of “effective credit” under the new rules. It takes six different offence types, assumes a post-trial sentence of 9 years in each case, and shows how a guilty plea at the first opportunity, attracting 33% credit, can produce significantly shorter periods in custody and a materially higher level of effective credit for certain offences.

The table reveals a striking effect. For robbery and death by dangerous driving (i.e. non-specified offences under the new rules), a guilty plea at the first opportunity can reduce the time actually served from two-thirds to one third which results in effective credit of 66 per cent, because the plea pushes the sentence below the threshold at which the longer release point applies. This creates a powerful incentive to plead that did not previously exist in the same form.

What the Act Does Not Change

Serious offences: murder, rape, robbery, section 18 GBH, terrorism, continue to attract immediate custodial sentences of significant length. Extended Determinate Sentences and Sentences for Offenders of Particular Concern cannot be suspended. Mandatory minimums for firearms, knife crime, and drug trafficking remain. The Act also introduces a whole life order as the starting point for the murder of a police officer, prison officer, or probation officer where the offence was motivated by their carrying out of official duties, a clear hardening at the most serious end of the scale.

The Wider Debate

Supporters of the Act, including the Prison Reform Trust and the Howard League for Penal Reform, point to Ministry of Justice data showing that short custodial sentences produce the highest reconviction rates.

The objections to the changes are not frivolous. Victims’ organisations have raised concern that the presumption against short custodial sentences will be applied in cases where immediate custody properly reflects the gravity of the offending.