Bail Act Changes: What the Sentencing Act 2026 Means for Defendants
The Sentencing Act 2026 has brought in several important changes to the Bail Act 1976, all aimed at reducing the number of people held on remand. These changes will have a real impact on how courts make decisions on bail, particularly for those facing lower‑level offences or at risk of short custodial sentences.
A new test for bail: “no real prospect of immediate custody”
The biggest change is the introduction of the new test: “no real prospect of immediate custody.” Previously, the test was just “no real prospect of custody”.
The Sentencing Act introduces a presumption that sentences of 12 months or less should be suspended. As a result, courts are now expected to take a more realistic view of whether a defendant is actually likely to be sent to prison straight away.
If the court decides there is no real prospect of someone being given an immediate custodial sentence, it becomes far harder for the prosecution to justify remanding someone into custody.
This test applies to both:
- defendants who have pleaded not guilty and are awaiting trial, and
- defendants who have been convicted and are awaiting sentence.
For many people, this change may reduce the risk of being remanded, especially where a suspended sentence is the likely outcome.
An increase in the use of electronic monitoring
Previously, electronic monitoring (i.e. tags) could only be used if it was necessary to avoid remanding someone into custody. This meant that if a custodial sentence wasn’t realistic, giving someone a tag was not an option, even if it would have helped secure bail.
The new rules remove that restriction. Tags can now be considered where there is a real prospect of a suspended sentence, and there is no real prospect of immediate custody.
This gives courts more flexibility and gives Defendants the opportunity to show they can comply with conditions imposed by the Court while their case progresses, which can be helpful mitigation at the point of sentence.
New statutory factors the court must consider
The final set of changes introduces three new factors that courts must specifically take into account when deciding bail:
- whether the defendant is pregnant
- whether the defendant is a primary caregiver
- whether the defendant has been a victim of domestic abuse
Although courts could already consider these issues, including them specifically in the legislation ensures they are not overlooked.
What this means in practice
Welcoming the new changes, we hope to see:
- fewer people remanded where the likely sentence is a Suspended Sentence Order
- more consistent and transparent decision‑making by courts
- wider use of electronic monitoring tags
- greater recognition of personal circumstances and vulnerabilities
Contact the crime team at David Gray Solicitors LLP
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