Custody, Suspended Sentences, and the New Landscape of the Sentencing Act 2026
For those of us who practise in the Crown Court, the last twelve months have brought the most significant recalibration of sentencing law in a generation. The Sentencing Act 2026, which received Royal Assent on 22 January 2026, was born of necessity rather than ideology: a prison estate holding well over 87,000 people, running at roughly a quarter above certified capacity with every local prison overcrowded and every probation programme oversubscribed. The Act translates the recommendations of David Gauke's Independent Sentencing Review, published in May 2025, into binding law. For practitioners advising clients at the point of plea and sentence, the practical consequences are now impossible to ignore.
The presumption against short custody
Since 22 March 2026, courts have been under a statutory presumption, contained in the new section 277A of the Sentencing Act 2020, to suspend any custodial sentence of 12 months or less unless exceptional circumstances relating to the offence or the offender justify an immediate custodial term. This is not a mere shift in guideline emphasis; it is a change in the starting point itself. The exceptions are narrower than many clients assume — breach of a court order is the paradigm example — and the presumption falls away entirely where the offender is already serving a custodial sentence, is on remand, is detained under the Mental Health Act 1983 or where consecutive sentences aggregate beyond 12 months. Advisers should not assume that a client facing a short sentence will walk free with a suspended order; the statutory route to immediate custody remains available, but it now requires positive justification rather than being the default.
Suspended sentences: a longer reach
The change most likely to alter day-to-day practice in the Crown Court is the extension of the maximum period over which a custodial sentence can be suspended, from two years to three. Courts convicting offenders aged 18 or over on or after 22 March 2026 may now impose up to three years' custody suspended for an operational period of up to three years — though the operational period may only exceed two years where the custodial element itself exceeds two years. A sentence of two years suspended for three, in other words, remains unlawful. Notably, the maximum period of active probation supervision has not moved; it remains capped at two years, save for unpaid work requirements, which may continue to the end of the operational period. This creates real tactical scope for mitigation in cases that would previously have attracted immediate custody as a matter of course.
Time served: the release-point shift
The third pillar concerns automatic release. The Act moves the release point for most Standard Determinate Sentences from 40 or 50 per cent to one third, and from two thirds to one half for those convicted of serious violent or sexual offences, who remain excluded from the more generous progression model. These provisions, having been paused for review, are now confirmed to commence on 1 October 2026, and will not extend to rape or certain child sexual and grooming offences. For any client currently serving, or facing, a determinate sentence, the interaction between date of conviction and the transitional provisions will materially affect the practical length of custody — a calculation that now demands as much care as the sentencing hearing itself.
A note of caution
None of this is without controversy. Victims' organisations have rightly questioned whether a presumption against short custody risks applying in cases where immediate imprisonment properly reflects the gravity of the offending. Our advice to clients, as ever, is to treat each case on its own facts — but the starting point for that advice has fundamentally changed.
If you are facing the Crown Court under this new framework, the timing of your plea and the terms of your sentence now matter more than ever. Speak to our team at Carson Kaye Solicitors before you decide how to proceed.
