Suspended Sentences, Early Release And Overcrowding: Understanding The Sentencing Act 2026

You would be forgiven for blinking and missing the implementation of the Sentencing Act 2026¹ (‘the Act), some of which came into force on 22 March 2026. Despite introducing significant changes to the sentencing regime and release provisions, there has been limited public discourse.

The Sentencing Act 2026 received Royal Assent on 22 January 2026, and follows the Independent Sentencing Review published last year, led by former Justice Secretary David Gauke.

The 2025 review by David Gauke concluded that England and Wales are facing a structural prison capacity crisis. Overcrowding of prisons is not new, with overcrowding being reported every year since 1999. But, with the number of prisoners only increasing, the strain has led to the system being on the brink of collapse.

In an effort to address the overcrowding problem, the Act is largely aimed at reducing the prison population. Some of the key sections are as follows.

A presumption of suspension for custodial sentences not exceeding 12 months

The Act states that any custodial sentence which does not exceed 12 months must be suspended. Whilst a number of exceptions apply, including when a defendant is already in custody, being re-sentenced or has breached a court order, or if imposing a suspended sentence order would put another individual at significant risk of physical or psychological harm, this is a significant change to the current position.

Also contained is a ‘catch-all’ exception if the court is of the opinion that there are exceptional circumstances relating to the offence and/or the offender, which justify not making the order.

There is presently no guidance as to what will amount to exceptional circumstances, but one might expect publication from the Sentencing Council, as the Act begins to take effect. It remains to be seen whether the sentencing courts will seek to dilute the meaning of ‘exceptional’ to avoid the presumption of suspension in certain cases. It is hoped that the guidance on the meaning of ‘exceptional circumstances’ provided by the Court of Appeal in other areas (such as mandatory minimum sentences) will be followed, whereby it has been stated that circumstances to depart must be truly exceptional, with caution being urged against undermining the legislative intent.

The presumption applies only to convictions after 22 March 2026 and does not apply retrospectively.

A custodial sentence of up to three years can now be suspended

One of the most significant changes is an increase in the maximum term of imprisonment that can be suspended, from two years to three. Defence practitioners will have in mind cases for which a suspended sentence has previously been out of reach; an obvious example being defendants placed in a significant role, within the category three bracket of drug supply offences. In some such cases, it may now be possible to achieve a suspended sentence - a previous all but impossibility.

With far more suspended sentences now likely to be passed, the effect may be greater than just reducing the number of new prison places. An increase in guilty pleas likely, such that it may also go to reducing the number of Crown Court trials.

The maximum operational period for a suspended sentence order will also be increased from two years to three, but only where the term of imprisonment itself exceeds two years.

Additional requirements which may be attached to a suspended sentence or community order

A number of additional requirements will be available to the sentencing courts to attach to any suspended sentence or community order passed. These provisions will come into force at a later date to be confirmed, rather than on 22 March 2026.

The new requirements include the following:

• Driving prohibition requirement
• Public event attendance prohibition requirement
• Drinking establishment entry prohibition requirement
• Income reduction order (attached to suspended sentence orders only)

The increased availability of requirements to attach to sentences served within the community ensures that punitive aspects of the justice system remain intact – but it remains to be seen how an already overstretched probation service will cope with monitoring these additional requirements.

The above will apply only to offences which were committed before the date on which they come into force, such that the offence date will need to be borne carefully in mind to avoid unlawful sentences being passed.

Early release of certain prisoners

One of the more radical reforms of the Sentencing Act applies to the early release regime, which is also not immediately coming into force but is anticipated to in Autumn 2026.

An ‘earned progression model’ will be applied to prisoners, starting with a ‘custody stage’ whereby prisoners serving a standard determinate sentence, at which they would currently be released at the halfway point, will be automatically eligible for early release after serving up to one third of their sentence. The mandatory serving of two-thirds of a sentence for specified sexual or violent offences will be reduced to half. These provisions provide for the earliest release, and an individual may spend longer in prison as a result of poor behaviour.

Following release, there will be a period of intense supervision under a ‘post custody stage’, followed by a licence period whereby the individual is not subject to active supervision, but liable to recall if a new offence is committed (the ‘at risk stage’).

Whilst this article focuses on only a selection of the provisions introduced by the Act, they are significant. The speed at which these reforms have been made (September 2025 was when the bill was first introduced in the House of Commons, and it received Royal Assent on 22 January 2026) is notable, particularly given its radical departure from the existing sentencing framework. This only serves to highlight the severity of the overcrowding of our prisons and the urgent need for action. 

Footnote

1. Certain provisions only; the remainder have no transitional provisions but are expected to take effect in the Autumn of 2026

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.