Presumption of Suspended Sentence Orders | The Sentencing Act 2026
A suspended sentence is a custodial sentence imposed by the court which is not served immediately. Instead, it is suspended for a specified operational period, during which the offender must comply with conditions imposed by the court and refrain from committing further offences. Failure to do so may result in the original custodial sentence being activated and ordered to take immediate effect.
Against the background of warnings that demand for prison places in England and Wales had come close to exceeding supply, resulting in emergency release schemes being implemented in 2024 to provide temporary relief., an Independent Sentencing Review (‘the Review’), chaired by former Justice Secretary David Gauke, was established.
A New Presumption Against Short-Term Imprisonment
As the result of recommendations contained within the Review, The Sentencing Act 2026 (‘the Act’) was passed to introduce a complete overhaul of sentencing law in England and Wales. A fundamental feature is the introduction of a legal presumption that, save in exceptional circumstances, custodial sentences of twelve months or less must be suspended.
This new presumption seeks to avoid the enforcement of short‑term prison sentences, retain their imposition solely for crimes of a more serious nature and to ease the pressure on the prison service.
Whilst the Act is now law, most of the changes it makes have not yet come into force and the majority wait for the Secretary of State to confirm their commencement. Such changes include early release from custody proposals and the introduction of a series of new Community Order Requirements and Community Requirements to bolster enforcement of the various changes.
In this article Helen Holder of KANGS outlines how the suspension of short-term custodial sentences is intended to improve prison overcrowding.
The Sentencing Act 2026 and the Drive to Reduce Prison Overcrowding
Statistics reveal a level of overcrowding in the prison system which is constantly increasing and is already resulting in unacceptable levels of violence, disorder and self-harm amongst prisoners.
These statistics include, within the identified period:
- one hundred and twenty-two staff assaults per one thousand prisoners,
- two hundred and thirty-seven prisoner on prisoner assaults per one thousand prisoners,
- eight hundred and ninety-nine self-harm occurrences per one thousand prisoners,
- ninety-one self-inflicted deaths,
- almost one quarter of all prisoners are held in overcrowded accommodation.
The Review identified three main reasons for the growth in the prison population as the:
- increasing issue of custodial sentences, particularly those for twelve months or less,
- lengthening of custodial terms generally across a wide range of offences, and
- sustained decline in the imposition of Community Orders and suspended sentences.
The Review also highlighted that short-term custodial sentences result in higher re-offending rates compared to community-based sentences. It further identified poor rehabilitative outcomes, leading to a high level of further imprisonment and the consequential strain on prisons and probation services.
The Review recommended a fundamental rebalancing of sentencing policy with immediate custody only to be implemented in the most serious cases. Accordingly, the Act recognises these recommendations by introducing ‘the Presumption of Suspended Sentences.’
The Presumption of Suspended Sentence Orders for Sentences of Twelve Months or Less
The Sentencing Act 2026 provides as follows:
Offender under 21
Section 1(2) of the Act states that where the court imposes a sentence of detention in a young offender institution for an offence where:
- the offender is aged at least eighteen but under twenty-one when convicted of the offence,
- the term of the sentence is not more than twelve months,
- a suspended order is available in relation to that offence,
the Court must make a Suspended Sentence Order unless it is of the opinion that there are exceptional circumstances which:
- relate to the offence or the offender, and
- justify not making the order.
The Section contains several exceptions arising where the offender is already in custody when sentence is passed.
Offender aged 21 or over
Section 1(3) of the Act states that where the court imposes a sentence of imprisonment for an offence where;
- the offender is aged twenty-one or over when convicted of the offence,
- the term of the sentence is not more than twelve months and
- a suspended sentence order is available in relation to that offence
the Court must make a Suspended Sentence Order unless it is of the opinion that there are exceptional circumstances which:
- relate to the offence or the offender, and
- justify not making the order.
The Section contains several exceptions where the:
- offender is already in custody,
- court is passing consecutive sentences that aggregate to greater that twelve months,
- offence being sentenced is one where the offender was made subject to supervision and is being re-sentenced for that offence,
- offender has breached a Court Order,
- making of the Court Order would put a particular individual at significant risk.
Early Release Proposals from Autumn 2026
Section 23 of the Act provides comprehensive proposals for early release from prison, although they are not currently in force.
It is anticipated that offenders serving standard determinate sentences who are due to be released at the halfway point of their term will instead be released after one third of their sentence. Whilst those where the current automatic release is two-thirds will be released at the halfway point of their term.
Exceptions will apply for those serving imprisonment terms for serious offences such as murder, manslaughter, causing grievous bodily harm and specified sexual offences which will be carefully monitored by the Parole Board.
Official Comment
Sentencing Minister Jake Richards, when acknowledging the scale of the crisis, remarked:
“This government inherited a prison system bursting at the seams and at breaking point – risking the total breakdown of law and order in this country.
Urgent, bold action was needed to keep the public safe. These reforms will make sure prisons never run out of space again and dangerous offenders are kept off our streets, while putting victims first with much tougher punishments for offenders outside jail.”
How Can We Assist?
As stated above, many of the provisions of the Act are not yet in force and there is considerable uncertainty as to when many of the others will be introduced as they will be a matter for policy decisions in the future.
The Act provides the authority for the implementation of many Government proposals such as ending automatic release for badly behaved offenders, strengthening community punishment, keeping dangerous offenders locked up and to cut reoffending in order to protect the public.
The team at KANGS is constantly alert to the changes in the prevailing law to ensure that each client is proactively guided and advised when considering how to achieve the most favourable outcome to the particular issue with which they are faced.
If you are facing allegation of a criminal offence, from drug offences and violent offences to fraud and other white collar crimes, contact the team at KANGS using the details below. We will pleased to assist you:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.
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