The Sentencing Act came into effect on 22 March 2026, and stakeholders should take note of the far-reaching consequences of the new measures. However, one potential consequence that isn’t getting the attention it deserves, is the growing importance of civil protective orders.
Background
The Sentencing Act 2026 (the Act) was introduced primarily to address the severe prison overcrowding crisis in England and Wales and represents the most significant overhaul of sentencing in decades.
The Act reforms sentencing and early release from prison in England and Wales. Crucially it represents a shift away from punishing offenders with prison sentences. It introduces a positive presumption against imposing short prison sentences and changes the standard release point for determinate sentences.
Changes made by the Act
The key reforms introduced by the Act can be summarised as follows:
- Purpose of sentencing: The Act clarifies that the protection of the public includes safeguarding victims of crime – aligning sentencing objectives with public safety and rehabilitation goals. This is a positive shift towards victim-focused outcomes.
- Finding of Domestic Abuse: A court must now officially say that an offence involved domestic abuse if they hold that opinion, even if the person was convicted of a general offence rather than a specific domestic abuse offence. Again, this is another notable step in addressing the identified systemic “violence against women and girls” (VAWG) issues in England and Wales.
- Presumption to suspend short custodial sentences: courts must now suspend all prison sentences of 12 months or less for offenders aged over 18 years – unless exceptional circumstances justify immediate custody. Those exceptions can include offenders already in custody, those being re-sentenced, or cases where consecutive sentences exceed 12 months.
Additionally, Courts now have the power to suspend prison sentences of up to 3 years. These changes, coupled with the below, will give little comfort to victims of crime. - Early Release: The Act modifies the standard release point for prisons with a determinate sentence. Previously, offenders had to serve at least 50% of their sentence. This has now been reduced to 33% before automatic release, contingent on active engagement with rehabilitation, work and education programmes.
Those serving prison sentences for serious sexual or violent offences will now be automatically released from prison after serving 50% of their sentence where previously it was after 66%. - Increased period for which sentencing can be deferred: The period of deferral has been increased from 6 months up to 12 months for offenders convicted on or after 22 March 2026.
- Court bail: Previously, the test for determining whether to release a defendant on court bail whilst awaiting the outcome of a case (as opposed to remanding in custody) was whether there was ‘no real prospect of custody’. This has now been changed to ‘no real prospect of immediate custody.’ With the imposition of less immediate prison sentences, and the presumption to suspend short term ones, the practical effect will be that more defendants are released on court bail rather than remanded in custody.
Impact on Police Bail
It is important to note that the Act and Home Office Guidance make clear that the application of ‘no real prospect of immediate custody’ is specific to court bail and not police bail.
The duties and test for a custody sergeant granting police bail (as outlined in section 38 of PACE) does not change. Custody sergeants must order release from police detention (with or without bail) unless the usual factors apply:
- failure to appear at court
- prevention of committing further offences
- to enable a sample to be taken
- prevention of physical injury to others and/or loss or damage
- prevention of the interference of justice or investigation
- where necessary for the person’s own protection
However, there has been some confusion over the correct approach to take given that section 38(2A) of PACE states that, when considering release or remand, the custody sergeant shall have regard to the same considerations as those which a court is required to have regard to in taking corresponding decisions.
This suggests that custody sergeants should pay attention to whether suspects are likely to receive immediate custody. Practically, this means that decisions to remand suspects may be scrutinised more thoroughly and be harder to justify.
Although there may be a reduced likelihood of immediate custody, and that this ought to be considered, the usual tests, duties and risk-based assessments remain paramount for custody sergeants when making these types of decisions and should be evidenced diligently.
Implications of the Act
Whilst there are undoubtedly several reforms that positively support victims of crime, particularly domestic abuse related crime, the push to reduce the prison population will concern not only victims but those in policing. With more offenders being permitted to remain in the community, policing will now need to focus on how to manage the risk they pose in order to prevent further offending and protect the public.
Whilst the Act strengthens community orders, those mechanisms are not always enough – particularly in cases involving domestic abuse, stalking or VAWG. This is where the use of civil orders, a perhaps underappreciated safeguarding mechanism, needs to be in sharper focus.
Response needed
Stalking Protection Orders, Domestic Violence Protection Orders/Domestic Abuse Protection Orders and Sexual Risk Orders/Sexual Harm Prevention Orders have, in the past, been treated as an afterthought, and secondary to the criminal justice process.
With the implementation of the Act, risk posed by offenders is shifting into the community, and much earlier in the criminal justice process. It is critical that civil orders should now be viewed, and used, as crucial immediate safeguards. Notably, breaches of these types of orders are one of the key factors that can still justify immediate custody.
The system is quietly re-balancing, with less reliance on overcrowded prisons and greater reliance on proactive, enforceable restrictions in the community. A failure to adapt will leave gaps in which risk exists unmanaged. However, the appropriate response only works if police forces and practitioners are confident in using these types of orders - and using them well.
How can Weightmans assist?
The Act brings the use civil protective orders to the fore – both as a tool to manage the risk posed by the offenders and as a means to provide essential protection (and reassurance) to victims. However, only robust applications for, and consistent use of orders will be effective in managing the potential risks posed to the public as a result of the changes implemented by the Act.
Our national police team, experts in this field, support Police forces and other agencies both in risk management and use of civil protective orders. We ensure the effective use of civil orders, and advise on applications – ensuring they are robust, proportionate and capable of effectively managing risk in practice.
The Act 2026 represents significant sentencing reform and a clear signal that stakeholders need to take note of.
The question will be whether forces and practitioners recognise the changes, adapt, and act to meet the additional demands now placed on policing as a result of the legislation. Crucially, it remains to be seen how quickly that takes place in order to protect victims and the public at large.
Should you wish to discuss the use of civil protective orders, or issues surrounding police bail, please contact our expert emergency service solicitors.
