Sentencing Act 2026: Key Changes for Criminal Defence
Overview
The Sentencing Act 2026 received Royal Assent on 22 January 2026. Its suspended sentence provisions, sections 1 and 2, have been in force since 22 March 2026. For offenders aged 18 or over, a court passing a custodial sentence of 12 months or less must now suspend it unless there are exceptional circumstances, subject to a list of statutory exceptions. The longest custodial term that can be suspended has gone up from two years to three.
What the Act does
The Act doesn't replace the Sentencing Code (the Sentencing Act 2020). It amends it. Part 1 covers, among other things:
- The presumption of a suspended sentence order for terms of 12 months or less (s.1)
- Extending the custodial terms that can be suspended (s.2)
- Income reduction orders (s.3) and the purposes of sentencing (s.4)
- A finding of domestic abuse (s.6)
- Renaming the rehabilitation activity requirement as the probation requirement (s.13)
- New community requirements: driving prohibition, public event attendance prohibition, drinking establishment entry prohibition and restriction zone requirements (ss.14–17)
- Free transcripts of sentencing remarks for victims who ask for them (s.22)
Commencement varies from section to section, so check the in-force position on legislation.gov.uk for anything other than ss.1 and 2.
The presumption to suspend: 12 months or less
This is the main change. Where the offender is convicted on or after 22 March 2026, is aged 18 or over, and the court imposes a custodial term of 12 months or less that could be suspended, the court must make a suspended sentence order. The only way round that is if the court thinks there are exceptional circumstances, relating to the offence or the offender, that justify not suspending it.
When the presumption doesn't apply
The Act lists situations where the presumption is switched off. In summary, they're where:
- The offender is already in custody when sentenced: serving a sentence, remanded for another offence, or committed by a court
- The offender is detained in hospital under certain Mental Health Act orders
- The sentence is one of several passed together and any of them is over 12 months, or they're consecutive and add up to more than 12 months
- The court is re-sentencing for an offence for which the offender is or has been subject to a supervision order
- The offence was committed while the offender was subject to a supervision order
- The offence was a breach of a court order, or closely connected with one
- The court thinks suspending would put a particular person at significant risk of physical or psychological harm
The Act doesn't define "exceptional circumstances". How the courts approach it will come through case law and any Sentencing Council guidance, so check the current position on live cases.
In practice
For offending where any custody would be short, the likely outcome is now a suspended sentence unless one of the exceptions applies. That changes how defence teams prepare: be ready with a realistic proposal for the requirements of a suspended sentence, not just mitigation aimed at a shorter term.
Suspending up to three years
For offenders convicted on or after 22 March 2026, a custodial term of up to three years can now be suspended (it was two). The operational period can only go beyond two years, up to three, where the suspended term is more than two years, or where consecutive sentences passed together add up to more than two years.
Community requirements
Sections 14 to 17 add new requirements that courts can attach to community orders and suspended sentences: a driving prohibition, a ban on attending public events, a ban on entering drinking establishments, and a restriction zone requirement. Section 13 renames the rehabilitation activity requirement the probation requirement.
Victims
Section 22 requires the Secretary of State to provide a victim, on request and free of charge, with a transcript of the sentencing remarks relevant to them.
What this means at the police station
The Act doesn't change PACE or police station procedure. It does change the background to your advice in the pre-interview consultation.
Talking about likely outcomes
When a client asks "am I going to prison?", for a wide range of lower-level offending the honest answer is now that, if custody is imposed and it's 12 months or less, the court must suspend it unless one of the exceptions or exceptional circumstances applies. Be careful: the exceptions (breach of a court order, offending under supervision, risk to a particular person) catch a lot of the clients you'll see. That can:
- Reduce a client's anxiety so they can take part properly in the consultation
- Feed into the decision on a prepared statement or no comment; see our adverse inference guide
- Inform later bail arguments
Mitigation starts early
If a suspended sentence is the likely outcome, the requirements matter. Note the client's circumstances (work, housing, health, family) at the police station; it all helps the firm later.
Further reading
- Sentencing Act 2026 (legislation.gov.uk)
- Sentencing Council for England and Wales
- PACE Codes of Practice
- Legal Updates
Sources: Sentencing Act 2026, ss.1, 2, 13–17 and 22, and the in-force information for ss.1–2 (legislation.gov.uk). Checked 15 October 2026.
General information only. Not legal advice. Always check the current statute and Sentencing Council guidelines for live cases.