The Sentencing Act 2026 introduces important changes to the Bail Act 1976, particularly around how courts decide whether a defendant should be granted bail or remanded in custody.
These reforms are part of a wider government strategy to reduce the number of people held on remand. The changes are set out in the Sentencing Act 2026 and supported by Ministry of Justice guidance on bail and remand reforms.
If you or a loved one is facing criminal proceedings, understanding how bail decisions are made has never been more important.
If you need urgent legal advice now, call 01162 555155.
What Has Changed?
The Sentencing Act 2026 introduces three key amendments to bail law:
- A change to the “no real prospect of custody” test;
- New rules around electronic monitoring (tagging);
- Additional factors courts must consider when deciding bail.
These changes reflect guidance issued by the Ministry of Justice, which confirms that the aim is to reduce unnecessary use of remand in custody before trial.
1. The “No Real Prospect of Immediate Custody” Test
One of the most important changes is to what is known as the “no real prospect” test.
Previously, courts considered whether there was “no real prospect of custody” when deciding bail. This has now been amended to:
“no real prospect of immediate custody”
This change sits alongside a wider reform within the Sentencing Act 2026, which introduces a presumption to suspend short custodial sentences of 12 months or less.
What this means is if a court believes a defendant is unlikely to receive an immediate prison sentence, then there is less justification for remanding them in custody.
As confirmed in Ministry of Justice guidance, where custody is unlikely, remand should be used less frequently.
This test applies:
- Where the court considers there is “no real prospect that the defendant will be sentenced to an immediate custodial sentence”, and
- To defendants who have been convicted but are awaiting sentence.
2. Changes to Electronic Monitoring (Tagging)
The Sentencing Act 2026 also reforms how electronic monitoring can be used. Previously, tagging could only be imposed where it was necessary because the defendant would otherwise be refused bail.
The law now allows greater flexibility.
Electronic monitoring (tag) no longer has to be a last resort to avoid custody and can be imposed more widely as part of bail conditions.
This reflects the Ministry of Justice’s intention to provide courts with more options short of remand in custody.
3. New Factors Courts Must Consider
The Bail Act 1976 already required courts to consider factors such as:
- The defendant’s character;
- The seriousness of the offence;
- Other relevant circumstances.
The Sentencing Act 2026 now strengthens this by adding specific factors into legislation.
Courts must now consider whether:
- The defendant is pregnant;
- The defendant is a primary caregiver;
- The defendant has been a victim of domestic abuse.
While these factors could previously be taken into account, including them in statute ensures they are properly and consistently considered.
Why These Changes Matter
These reforms are designed to:
- Reduce the prison remand population;
- Ensure custody is used only where necessary;
- Promote more proportionate and fair decision-making.
Government guidance makes clear that where a custodial sentence is unlikely, detaining someone before trial should be the exception, not the rule.
For defendants, this means:
- A greater likelihood of being granted bail;
- Increased use of structured bail conditions instead of custody;
- Stronger recognition of personal circumstances.
What Do We Think?
Kally Sahota, Director of Sahota & Sahota Solicitors, comments:
“These changes under the Sentencing Act 2026 are significant and, in practice, may take some time for the courts to fully adapt to. As with any legislative reform, there is often a period where interpretation and application develop through day-to-day decisions in court.
The Ministry of Justice material currently available is framed as guidance rather than strict legal direction, and while it is helpful in understanding the intention behind the changes, each case will still turn on its own facts and the court’s discretion.
In our experience, early and well-prepared representations will be key, particularly when advancing arguments around the ‘no real prospect of immediate custody’ test. It is likely that we will see these principles tested and clarified over the coming weeks and months.”
How We Can Help
Bail decisions are often made quickly and can have a significant impact on your case.
At Sahota & Sahota Solicitors, we:
- Prepare strong and urgent bail applications;
- Challenge unnecessary remands in custody;
- Advance detailed arguments based on the “no real prospect of immediate custody” test;
- Ensure all relevant personal factors are properly presented to the court.
You can call/WhatsApp us on 01162555155
You can visit us at: Sahota & Sahota Solicitors, 25 New Walk, Leicester, LE1 6TE.
