Sentencing Act 2026: Updates You Should Know About

If you’ve been following the legal news lately, you’ll know that the Sentencing Act 2026 has recently come into force.

That matters because sentencing does not happen in isolation. It affects prison capacity, probation resources, rehabilitation, and even pre-trial decisions about bail. If you are an aspiring criminal barrister or solicitor, you need to understand not just the headline changes, but the logic behind them.

And yes, Pleas in Mitigation still matter enormously. In fact, they probably matter more than ever. But this legislation is bigger than one advocacy exercise. It changes the framework around short custodial sentences, expands the scope for suspension, and sits neatly alongside the question of bail.

Let’s break down what has changed, where the technical detail matters, and what this means in practice.

The Big Shift: The Presumption for Sentences of 12 Months or Less

The headline change is the new starting point for short custodial sentences. Under the Sentencing Act 2026, where the court is considering a custodial term of 12 months or less, there is now a presumption that the sentence should be suspended rather than served immediately unless an exception or disqualifying features applies.

The key exceptions and limits

The legislation makes clear that the presumption may not apply, or may be displaced, in cases such as these:

1. The offender is already in custody
   If the defendant is already serving a custodial sentence, or is otherwise in custody in a way that brings them outside the intended scope of the presumption, the presumption does not apply.

2. There has been a breach of a previous suspended sentence or community order
   If the offender has recently breached community-based disposals, the court may conclude that suspension is not appropriate.

3. The offence or offender history makes immediate custody unavoidable
   Some cases are simply too serious in context. A short sentence may still be the right length, but the surrounding facts may make suspension unrealistic.

The Three-Year Window: A Bigger Power to Suspend

The second major reform is the increase in the upper limit for suspended sentences. The old ceiling was two years. The Sentencing Act 2026 increases that to three years.

Before this reform, once the judge reached a sentence above two years, suspension was impossible. A sentence of 25 or 30 months meant immediate custody, however strong the mitigation. Now, at least in principle, the court can suspend a sentence anywhere up to 36 months.

This change brings a wider group of cases into the zone where advocacy can make a serious difference. It means offences that are too grave for the old suspension limit may now still attract a suspended sentence where the facts justify it.

The legislation does not say every sentence up to three years should be suspended. Quite the opposite. The reform is framed as an expansion of judicial power, not an entitlement for defendants. The court is expected to use that power with caution, particularly in cases where suspension is justified by strong mitigating factors, realistic rehabilitation, and confidence that immediate custody is not necessary.

What counts in that wider suspension zone?

For sentences above 12 months and up to 3 years, the court must still consider the Imposition Guideline will focus closely on issues such as:

1. Whether there are genuinely strong mitigating factors
   The court will consider the strength of any factual and personal mitigation factors that have been presented.

2. Whether the offender presents a high risk of harm or reoffending
   The court will want to know whether requirements are realistic. A perfect speech from a defence means very little if the proposed structure is unworkable.

3. Whether immediate custody is necessary for punishment or public confidence
   Some offences may fall within the new range but still require immediate imprisonment because of seriousness, prevalence, or the need to mark the offending clearly.

4. Whether the offender has a poor history with community-based orders
   If there is a history of poor compliance, this is a significant factor that will weigh against a suspended sentence.

Bail and the “No Real Prospect” Test

Anyone working in the magistrates’ court or Crown Court will already know the familiar bail principle: if there is no real prospect that the defendant will receive a custodial sentence, bail should usually follow, subject to the usual exceptions and risk factors.

The Sentencing Act 2026 does not rewrite bail law from scratch, but it does affect how you think about that test.

If the law now presumes suspension for custodial sentences of 12 months or less, then in many lower-level cases the real question is no longer just, “Could the court impose custody?” It is, “Is there a real prospect of immediate custody?”

A defendant may face a custodial term in theory, but if the likely outcome under the new sentencing framework is a suspended sentence, the argument for remanding them in custody becomes harder to sustain. The logic is straightforward: why keep someone in custody before trial if, on conviction, the realistic outcome is that they would not be sent straight to prison anyway?

So if you are making submissions on bail, the new legislation gives you more than a sentencing point. It gives you a practical lens: if this is the sort of case where a suspended sentence is now the expected outcome, remand becomes much harder to justify unless there is a proper risk-based reason.

The Impact on Mitigation

If you find yourself delivering a plea in mitigation, there are a number of aspects you now need to think about:

1. You need to protect the presumption
   If your case falls within the 12-month zone, your job is to show why none of the disqualifying features should pull the court towards immediate custody.

2. You need to address breach history honestly
   If there have been previous failures, do not pretend they do not exist. You will need to address these in your submissions.

3. Remember the Imposition Guideline
   Consider the factors within the Imposition Guideline, both those that support the imposition of a suspended sentence and those weighing against, and address these in your submissions.

It’s Advocacy, Not Academia

A Plea in Mitigation is where the "human" meets the "legal". You are helping the court apply a technical sentencing framework to a real person. That means identifying where your client fits within the new rules, confronting the bad points, and giving the judge a sensible route to a lawful outcome.

You are also telling a story, just not a fluffy one. You are taking a set of facts, often messy and unflattering facts, and giving them legal shape. Why is this case still serious enough to cross the custody threshold, but not serious enough to require immediate custody? Why should the court trust suspension? Why is rehabilitation realistic here and not wishful thinking?

Depth beats breadth. Don’t give the judge twenty mediocre reasons why your client should avoid prison. Give them three strong, evidenced, legally relevant reasons that answer the actual statutory concerns.

Practical Advocacy at the Legal Skills Academy

If you’re feeling a bit overwhelmed by these changes, don’t worry. Advocacy is a muscle. You build that skill by practising it.

At Speed Mooting, we believe the best way to learn is by doing. You can read about the Sentencing Act 2026 all day, but that is not the same as putting these changes into practice and delivering your submissions.

That is why practical advocacy matters.

If you are interested in criminal law, the new rules around suspended sentences make Pleas in Mitigation an especially valuable skill to practise. You need to learn how to structure submissions, how to address risk and breach history, and how to build a realistic case for suspension rather than immediate custody.

Join our Plea in Mitigation session

We are hosting a Plea in Mitigation session on Tuesday 26th May at the Legal Skills Academy.

If this area of law interests you, it is the perfect opportunity to try your hand at a practical piece of advocacy. You will get the chance to think like a defence lawyer, apply the sentencing framework in a realistic scenario, and practise making submissions in a supportive, low-pressure environment.

Whether you are a first-year student, preparing for pupillage, or even a practising barrister or solicitor simply keen to get more comfortable with criminal advocacy, this is a great way to build confidence fast. You can find out more here: speedmooting.com/legal-skills-academy

Final Thoughts

The Sentencing Act 2026 is not just a new set of rules. It reflects a wider shift in how the criminal justice system thinks about short custody, rehabilitation, and the proper use of prison.

For law students, it is a reminder that criminal practice is never just about memorising a principle. It is about understanding how sentencing, bail, risk, and real-world court decisions fit together.

Don’t let your first run at these arguments happen when the stakes are real and the judge is waiting. Practise first. Make mistakes in training. Learn what works. Then step in with confidence.