The Sentencing Act 2026 introduces two notable reforms to sentencing practice. Section 1 establishes a presumption that custodial sentences of 12 months or less be suspended. Section 2 expands the scope of suspended sentences by increasing the maximum custodial term that may be suspended to three years.
Critics argue that these provisions weaken two fundamental purposes of sentencing, namely, punishment and deterrence. On this basis, some suggest they should be repealed in the interests of justice. However, properly understood, Sections 1 and 2 do not undermine punishment or deterrence and, in fact, support a more effective and balanced sentencing framework. Accordingly, their repeal is neither necessary nor desirable.
Punishment: A Shift in Form, Not a Reduction in Severity
At first glance, increasing the use of suspended sentences may appear to dilute punishment. However, this interpretation overlooks the nature of Suspended Sentence Orders (SSOs) and the wording of the statutory provisions themselves.
First, SSOs are not lenient alternatives to immediate custodial sentences. They impose tangible and often demanding restrictions on an offender’s liberty. Courts can attach requirements such as unpaid work, curfews, supervision, and participation in drug or alcohol treatment programmes. These conditions can significantly disrupt an offender’s daily life and impose meaningful consequences, thereby fulfilling the punitive function of sentencing.
Second, both Sections 1 and 2 preserve judicial discretion to impose immediate custody where appropriate. Section 1 does not create an absolute rule, allowing courts to depart from the presumption in exceptional circumstances. Although there is no exhaustive list of what constitutes these ‘exceptional circumstances’, factors such as the dangerousness of an offender, and an offence of particular seriousness, would likely qualify. Similarly, Section 2 preserves discretion with use of the word ‘may’.
Therefore, taken together, these provisions do not erode punishment. Instead, they provide a flexible framework that allows courts to impose proportionate and effective penalties while retaining the option of immediate imprisonment where the interests of punishment may require it.
Deterrence: Practical Effectiveness
The argument that these provisions weaken deterrence is also unconvincing.
First, deterrence is best assessed through reoffending rates. Evidence consistently shows that short custodial sentences are associated with high levels of reoffending. Current figures suggest that approximately 66% of offenders receiving short prison sentences reoffend. In contrast, offenders given suspended sentences or community orders have significantly lower reoffending rates; for example, around 33% in 2024. This suggests that a presumption in favour of suspending short sentences may actually enhance deterrence by reducing repeat offending.
Second, suspended sentences are, by nature, effective deterrents. SSOs operate on a ‘breach equals custody’ structure. Offenders remain in the community under clear conditions, with the constant and credible threat that any breach will result in immediate imprisonment. This structure reinforces deterrence by making the consequences of non-compliance both predictable and certain.
As such, suspended sentences provide a more effective deterrent than short custodial terms, which often fail to address underlying causes of offending and may increase the likelihood of reoffending.
The Interests of Justice: A Broader Perspective
In the context of sentencing, the interests of justice extend beyond punishment and deterrence, also encompassing public protection and rehabilitation. When viewed through this broader lens, Sections 1 and 2 support, rather than undermine, the interests of justice.
In terms of public protection, suspended sentences ensure that offenders remain under supervision and subject to conditions designed to manage risk. Importantly, Section 1 explicitly excludes cases where an offender poses a danger or significant risk, ensuring that the presumption does not apply where public safety is at stake.
Regarding rehabilitation, these provisions offer clear advantages over short-term imprisonment. Custodial environments are often overcrowded and provide limited opportunities for meaningful rehabilitation. In contrast, suspended sentences allow offenders to engage in structured rehabilitation activities within the community, addressing issues such as substance abuse, unemployment, or behavioural patterns that contribute to offending. Therefore, by promoting rehabilitation while securing public protection, Sections 1 and 2 align closely with the broader aims of sentencing.
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