The Sentencing Act 2026: What does it mean for ‘Low Level’ Offences?.

The Sentencing Act 2026 (“SA 2026”) comes into force in part on 22 March 2026. It is intended to reduce the prevalence of immediate custodial sentences, the length of custodial sentences, and increase alternatives available to the courts. In this piece, Crucible's Shifra Moriarty provides a great summary of all of the immediate and pending changes.

The Capacity Crisis

For decades, a ‘tough on crime’ approach has manifested in increasingly punitive legislation, widening the reach and length of time individuals spend in the criminal justice system. This contributed to a sharp rise in the prison population, most notably a 66% increase between 1995 and 2009. In 2023, the pressure of case backlogs led to the highest remand levels in 50 years. By 2024, prisons were operating as high as 99.7% capacity - a system under significant strain. In response, the Independent Sentencing Review (“the Review”) was published in May 2025 and sought to address these pressures.

Parliamentary debate, particularly during the 2nd reading (12 September 2025), focused on the merits of reducing recidivism by expanding a community-based sentencing model. The community based model aligns with the MoJ (2023) analysis, which found that 36% of community orders led to reoffending, compared with a recidivism rate of 62% where a short custodial sentence was imposed. The SA 2026 implements many of the Review’s recommendations. It aims to alleviate pressure on prisons through expanding non immediate custodial sentence and community based order to reduce recidivism.

Who is eligible for a suspended sentence order?

Presumption of suspended sentence order (SSO) - Section 1 of SA 2026 introduces a presumption that any custodial sentence of 12 months or less will be suspended. This represents a significant shift away from immediate custody for low-level offending.

There are 8 statutory exceptions to the presumption:

• The presumption does not apply if the offender is already in custody either pursuant to a current sentence, having been remanded in custody or detained under the Mental Health Act 1983.(s277A(3)(a)(b)(c));
• The presumption does not apply if the sentence of detention in a young offender’s institution is longer than 12 months or the Court is passing consecutive sentences that aggregate to greater than 12 months (s277A(3)(d);
• The presumption is also disapplied if the offender is being re-sentenced (s277A(3)(e), already under a supervision order (s277A(3)(f) or committed an offence involving a breach of a court order (s277A(3)(g);
• The presumption does not apply if an SSO would put a specific individual at significant risk of harm (s277A(3)(h). This exception will be particularly relevant in cases involving domestic abuse and violence against women and girls

Three-year suspended sentences - Section 2 of the Act increases the maximum operational period of a suspended sentence from two years to three years. For a sentence of two to three years, the court can now suspend it for up to three years, meaning the risk of prison remains if the order is breached. However, the probation service can only supervise a person for the first two years. This approach encourages compliance with the rules without placing additional pressure on probation services.

Deferment orders - Section 5 increases the maximum deferment period from six months to twelve months for the sentencing date. This change is particularly significant for low-level offenders who may be vulnerable due to addiction, dependency, or past trauma. It also enables courts to delay sentencing where individuals are experiencing transitional life circumstances, such as pregnancy, serious ill health, or the need to complete a period of education or training.

Amendments to Bail - Section 44 amends the Bail Act 1976 (“BA 1976”) test for granting bail from ‘no real prospect of a custodial sentence’ to ‘no real prospect of an immediate custodial sentence.’ As a result, fewer exceptions to bail will apply to low-level offenders who are likely to receive a suspended sentence order (SSO).

However, the use of electronic monitoring will become increasingly available for such a defendant. The SA 2026 removes the eligibility test that electronic monitoring should be imposed only as an alternative to remand in custody. Furthermore, the BA 1976 will be amended to include statutory factors for courts to consider when granting bail. These include whether the defendant is pregnant, a primary caregiver, or has been a victim of domestic abuse.

How are community orders and probation requirements affected?

Rehabilitation Activities and Requirements - Section 12 removes the requirement to specify a maximum number of Rehabilitation Activity Requirement (RAR) days, while Section 36 removes the maximum limit for unpaid work requirements.

Sections 14 - 17 will expand the range of conditions that courts may impose. These include:

• Restrictions on when and where an individual can drive (s14);
• Prohibitions on attending public events (s15);
• Prohibitions on entering drinking establishments (s16);
• Restriction zone requirements (s17).

These conditions may be imposed for up to two years and allow for more nuanced sentencing that reflects the offender's circumstances, rather than being limited to the offence itself. For example, driving restrictions may be imposed even where a vehicle was not involved in the commission of the offence.

Taken together, these reforms increase the remit and rigour of potential community orders. As a result, a wider range of low-level offences can be dealt with in the community rather than through custody, providing offenders with greater opportunity and incentive to address their behaviour in a supervised yet supportive environment.

How will standard determinate sentences (SDS) be affected?

The planned “earned progression model” restructures sentences into three stages:

1. Custody stage - earlier release provisions apply automatically to the relevant sentences; however, failure to comply with prison rules delays release.
2. Post-custody – intense supervision in the community will follow, which may include electronic monitoring.
3. At-risk period – active supervision is removed as the individual progresses toward the end of the sentence.

Early Release - Section 23 introduces changes to early release for standard determinate sentences. Previously, prisoners were usually released automatically at the halfway point of their sentence, but this has now been reduced to one-third of the way through. In cases where automatic release previously occurred at the two-thirds point, it will now occur at the halfway point. These changes do not apply to high-level serious offences, including extended sentences under sections 250, 266, and 279 of the Sentencing Act 2020.

However, Section 32 will increase the length of fixed recalls to 56 days, amending the current 14 or 28-day recalls for the majority of people who have served SDS. Taken together, the amendments enable a greater proportion of SDS to be served under supervision in the community, with extended recall days as an incentive for compliance. The amendments affecting SDS are expected to be fully implemented this autumn.

Wider impact

The Annual Statement on Prison Capacity (January 2026) estimated that the reforms will reduce the prison population by 7,500 by 2028. However, the expansion of community-based sentencing and enhanced supervision has raised concerns that pressure on the prison system may simply be transferred to the probation service. To address these concerns, an additional £700 million in funding will be available for probation and community services between 2028 - 2029, supporting the effective delivery of these reforms.

The SA 2026 is grounded in pragmatic capacity concerns, but the response is also ideological. The legislation recognises the rehabilitative potential of a ‘custodial’ sentence, without requiring custody for low-level offenders. The reforms are intended to shift from punitive punishment toward rehabilitation, enabling nuanced sentences which go beyond the offence to support the offender.