The Sentencing Act 2026: a Missed Opportunity?

For years, politicians from all sides have promised to be “tough on crime”. Sentencing has become a political battleground in which the length of a prison sentence is often presented as the primary measure of justice. The longer the sentence, the argument goes, the safer the public must be. Yet the reality is significantly more complicated than that.

The forthcoming changes introduced by the Sentencing Act 2026 have reignited the debate about the purpose of criminal sentencing. The legislation has attracted headlines because it will alter the point at which many prisoners serving standard determinate sentences are released, allowing a greater number of offenders to serve part of their sentence in the community under licence rather than in custody. According to the legislation, many offenders who currently serve 40% or 50% of their custodial term before release will instead become eligible for release after serving one third of that term, subject to ongoing supervision and the risk of recall to prison.

Predictably, critics have described the reforms as being “soft on crime”. Victims’ groups have expressed understandable concerns. Some sections of the media have portrayed the changes as an exercise in letting criminals out early simply because there is no room left in the prison estate.

The debate deserves more careful consideration than that.

The more interesting question is not whether offenders should spend a few months more or less in prison. The real question is whether prison actually works.

Because if a particular form of punishment fails to reduce offending, fails to rehabilitate offenders and fails to make the public safer, then merely expanding its use becomes an extraordinarily expensive exercise in repeating the same mistake.

A nation addicted to imprisonment

The criminal justice system has long treated imprisonment as the ultimate sanction. For the most serious offences there will always be a need for custody. Society requires protection from dangerous individuals. Some offences are so serious that only imprisonment can adequately reflect the harm caused.

However, it does not necessarily follow that prison is the best response to every offence or every offender.

The popular image of a criminal is often someone fundamentally different from the rest of society. Yet those who work in criminal defence know that reality rarely conforms to that stereotype.

Most people who appear before the courts are not cartoon villains. They are often individuals who have reached a crisis point in their lives. Some are struggling with addiction. Others are experiencing untreated mental health conditions. Many have experienced childhood trauma, poverty, homelessness, abuse, financial hardship or social exclusion.

That is not an excuse for criminal behaviour.

But it does go some way to offer an explanation.

Criminal courts regularly encounter people who have made terrible decisions during periods of extraordinary personal difficulty. Some commit offences whilst battling substance misuse. Others act recklessly during relationship breakdowns, family disputes or emotional crises. Many are genuinely ashamed of what they have done and desperate not to repeat it.

The difficulty is that prison frequently does little to address the underlying causes of that behaviour.

If an offender enters prison addicted to drugs, leaves prison addicted to drugs and returns to exactly the same circumstances that existed before their sentence, it becomes difficult to argue that imprisonment has solved anything.

The public may feel that justice has been done. Politicians may be able to point to a longer sentence. Yet the underlying problems remain stubbornly intact.

The evidence that rehabilitation matters

Every sentencing exercise involves balancing several competing objectives. Punishment remains important. So does deterrence. Public protection is essential. Yet rehabilitation sits alongside those objectives for good reason. Most offenders will eventually return to the community. The question is not whether they will come back. The question is what sort of person they will be when they do.

Will they return with stable accommodation, employment opportunities, improved mental health and support from probation services? Or will they return with fewer prospects than before, damaged family relationships and little support beyond a train ticket and a warning not to reoffend?

The answer to that question has a profound impact on public safety.

A prison sentence can remove an offender from society temporarily. Rehabilitation aims to stop them offending again permanently. The distinction is important.

As defence lawyers, we regularly represent people who are terrified not only of punishment but of becoming trapped in a cycle of offending. They do not want another conviction. They do not want another court appearance. They do not want their family to suffer further embarrassment and distress.
Many are actively seeking help. For these individuals, properly funded community-based interventions often achieve more than a custodial sentence ever could.

Drug treatment programmes can tackle addiction.

Mental health support can address longstanding psychiatric conditions.
Educational programmes can create employment opportunities.

Intensive probation supervision can provide accountability whilst allowing family relationships and employment to continue.

None of these interventions makes an attractive political slogan. They do not generate dramatic newspaper headlines. They do not satisfy the instinctive call for harsher punishment.

What they can do is reduce the likelihood of future victims. That ought to matter.

Why the Sentencing Act 2026 has been introduced

The uncomfortable truth is that the Sentencing Act 2026 has not emerged solely from a philosophical commitment to rehabilitation.

It has been driven, at least in part, by the practical reality of an overcrowded prison system.

England and Wales have experienced years of pressure on prison capacity. Government figures have repeatedly shown prisons operating close to their maximum capacity. The reforms are designed to manage that pressure by allowing more offenders serving standard determinate sentences to spend a greater proportion of their sentence on licence in the community.

Critics see this as a sign of failure.

Perhaps it is.

But a prison estate operating permanently at breaking point should also prompt a more fundamental discussion.

If prisons are full because of decades of increasingly lengthy sentences, perhaps the answer is not simply to build more prisons. Perhaps we should start asking whether we are sending too many people to prison in the first place.

That proposition inevitably creates controversy.

Nobody suggests that murderers, serious sexual offenders or genuinely dangerous individuals should avoid custody.

The debate concerns the thousands of offenders who present a lower risk and whose offending is driven by issues that imprisonment is poorly equipped to solve.

For those individuals, a community sentence which includes unpaid work, rehabilitation requirements, treatment programmes and close supervision may represent a more intelligent response than several months spent in an overcrowded prison.

The intervention by Prime Minister Andy Burnham

The political controversy surrounding the reforms intensified following concerns that some serious offenders could benefit from earlier release provisions.

Following substantial public pressure and campaigning by victims’ groups, the recently installed Prime Minister, Andy Burnham, intervened to review the operation of the scheme. The government subsequently amended the proposals to exclude additional categories of offenders from qualifying for the earlier release arrangements. This now includes those convicted of offences such as manslaughter, indecent assault, death by dangerous driving and causing or allowing a child’s death.

The decision followed particular concern surrounding the potential early release of offenders involved in the killing of PC Andrew Harper, a case which understandably attracted significant public attention.

Many members of the public will welcome these exclusions. Victims and their families understandably wish to see serious offences met with substantial punishment. Confidence in the justice system matters and sentencing must reflect the gravity of the offending.

At the same time, it is important not to lose sight of the broader purpose of the reforms.

The exclusion of certain serious offenders from the scheme does not alter the central issue. The criminal justice system still faces a fundamental choice between investing heavily in imprisonment or investing more significantly in rehabilitation.

Simply excluding more and more categories of offender may satisfy public anger in the short term. It does not necessarily address the reasons why our prisons remain overcrowded.

A community sentence should not be seen as a soft option

One of the most persistent myths within criminal justice is that a community sentence represents an easy alternative to prison.

Anyone who has supervised offenders, represented them before the courts or worked within probation services will tell you otherwise.

A properly constructed community order can be demanding.

It may require hundreds of hours of unpaid work.

It may involve curfews, electronic monitoring, mandatory treatment programmes and regular reporting requirements.

Failure to comply can result in further court appearances and eventual imprisonment.

Most importantly, community-based sentences force offenders to confront their behaviour whilst continuing to function in the real world. They must maintain employment, support their families, attend appointments and comply with treatment requirements.

That process is often more challenging than simply waiting out a sentence behind prison walls.

The problem is not that community sentencing is ineffective. The problem is that it has frequently been underfunded.

The need for meaningful investment

If the Sentencing Act 2026 is to achieve anything positive, it must be accompanied by substantial investment in rehabilitation services.

A decision to release more offenders into the community without proper support structures would represent a serious mistake.

Probation services need resources, as do drug treatment programmes, mental health services, housing support as well as employment and training initiatives. Without those investments, early release risks become little more than a mechanism for creating prison space.

With those investments, however, it could become an opportunity to reduce reoffending and improve public safety.

That is a distinction worth recognising.

Looking beyond punishment

The criminal justice system exists to protect society. Punishment is part of that mission. It is not the entirety of it.

If our objective is simply to make offenders suffer, then prison may appear an attractive answer. If, however, the objective is to reduce future offending and prevent future victims, then rehabilitation must play a much more prominent role.

Those who work daily within the criminal courts see the consequences of untreated addiction, unresolved trauma, mental illness and social disadvantage. We also see the remarkable progress that some individuals make when they receive the right support.

The debate surrounding the Sentencing Act 2026 should not descend into a simplistic argument about whether prisoners deserve sympathy.

That is the wrong question.

The better question is whether society is safer when offending behaviour is tackled effectively.

For many offenders, particularly those whose crimes are driven by addiction, poor mental health or chaotic lifestyles, prison alone does not achieve that objective.

Rehabilitation often can.
The challenge for government is therefore not merely to decide who should be released and when. The real challenge is finding the courage to invest in solutions which work, even when those solutions may be politically less attractive than the promise of ever-longer prison sentences.

If the Sentencing Act 2026 encourages that conversation, it may yet prove to be one of the most significant criminal justice reforms of recent years.

If you are facing criminal proceedings and are concerned about the sentence you may receive, our specialist criminal defence solicitors can advise you on the sentencing process, the options available to the court and the steps that can be taken to achieve the best possible outcome.

Contact our team of specialist solicitors today to discuss your situation in confidence, or call 020 7846 4999.