The Sentencing Bill 2025: Three topics for analysis

Guest blog by Alex Benn (Barrister, Red Lion Chambers) and Annie Fendrich (Barrister, 6KBW)

On 2^nd September 2025, the government introduced the Sentencing Bill to the House of Commons. The Bill represents a significant step in the era of the ‘prisons crisis’, following the Independent Sentencing Review’s report in May 2025. From greater use of suspended sentence orders to a range of new community order requirements, the Bill aims to shift the focus from short sentences served in custody to community supervision and work with the Probation Service.

 The Bill’s main proposals are as follows.

 · Introduce a presumption in favour of suspension for sentences of one year’s custody or less.

· Increase the maximum length of sentences which can be suspended from two to three years.

· Introduce income reduction orders.

· Increase the maximum period of deferment of sentence from six months to one year.

· New or extended community requirements (e.g. prohibitions on driving, public event attendance and drinking establishment entry, restriction zones, no maximum hours of unpaid work).

· Require the Sentencing Council to get consent from the Chief Justice and the Lord Chancellor to issue definitive guidelines.

· Allow early removal of prisoners liable to be removed from the UK.

In this post, we consider three topics stemming from the Bill in the version introduced when first tabled in the House of Commons: (1) the presumption in favour of suspended sentences; (2) income reduction orders; and (3) the bigger shift in emphasis from the Prison Service to the Probation Service. Although there is much to be said in support of the Bill and its alternatives to custody, it may create other issues. For all its good ideas, it still does not get to the roots of the problems in the criminal justice system.

Topic 1: Presumption in Favour of Suspension

Summary

At present, for sentences of two years’ custody or less, the court is required to weigh the factors set out in Sentencing Council guidance and consider whether it is appropriate to suspend the term of custody. These factors include an individual’s prospects of rehabilitation in the community and the level of risk they pose to any other person, as well as their past level of compliance with court orders (where applicable) and their likelihood of future compliance.  They also include whether there is strong personal mitigation and whether immediate custody will have a significant harmful impact on others, such as dependants.

Clause 1 of the Bill, if enacted, would substantially change that legal analysis. It would introduce a rebuttable presumption that sentences of 12 months’ custody or less will be suspended. Under clause 1, the court must suspend a sentence of 12 months’ custody or less, unless there are exceptional circumstances that (a) relate to the offence(s) for which a person falls to be sentenced or relating to the person and (b) justify the sentence not being suspended. The presumption does not apply in certain cases, such as those in which the court decides that suspending the sentence would put a particular person at significant risk of physical or psychological harm.

Discussion

The presumption proposed is, overall, welcome. It reflects the reality that relatively short-term custodial sentences are often counter-productive, both for the person sentenced and broader society. The Sentencing Council’s research, for example, notes that ‘the collective evidence casting doubt on the effectiveness of short custodial sentences is robust’ and that sentences close to the custodial threshold can often be more effective in the community.’[1]

The change in approach raises various issues. One issue is the strength and scope of the presumption in practice. Will it end up being watered down? Will ‘exceptional’ circumstances be drawn narrowly or widely? The approach in the current sentencing guideline will continue to apply to sentences of 12 months’ custody or more. Presumably, the factors in the existing guideline would not amount to ‘exceptional’ circumstances — but it is also possible to imagine cases in which the strength of one factor, or the combination of several factors, might meet the threshold and justify a particular outcome.[2]

Another issue is the exception in respect of significant risk of physical or psychological harm to a particular person. It is likely to be especially contentious in cases involving violence in domestic contexts. It may also be complex in cases in which a witness gives a statement about the impact of the offending, which in turn raises issues that have not been tested under cross-examination or substantiated by other evidence. The Bill’s exception (risk of ‘significant harm’ to a ‘particular individual’) is narrower than the equivalent factor in the existing guidance (‘risk’ to ‘any person’). However, the Bill places particular emphasis on this issue by formulating it as a stand-alone exception. It occupies a sub-section by itself. It is no longer one factor to be weighed amongst several. Rather, the presence of this factor expressly means that the presumption ‘does not apply’. This undercut the presumption in a significant number of cases involving people in relationships or living in the same communities.  When interpreted, it may need particular care. Otherwise, it could dilute a presumption intended to make a big change.

A Note: Comparison with Alex Chalk’s 2024 Bill

It is worth pausing here to compare the Bill with the Sentencing Bill introduced in 2024 by the previous government’s Justice Secretary, Alex Chalk. In that Bill, the title refers to a ‘duty to impose suspended sentence for sentences of 12 months or less’, rather than a ‘presumption’. The language of ‘duty’ is stronger, though the text actually refers to the same kind of presumption in the 2025 Bill. The 2025 Bill also differs in the number and extent of the exceptions. It is more limited in the sense that it adds further exceptions relating to the armed forces. However, unlike the 2024 Bill, the 2025 Bill makes no exception if the offence is one under s 6(1) or (2) of the Bail Act 1976 (failure to surrender to custody) or if the person was on licence at the time. The 2025 Bill could mean that the presumption applies even in the — relatively common — instance of a failure to surrender or a breach of licence.

Topic 2: Income Reduction Orders

Summary

Clause 3 of the Bill looks to introduce ‘income reduction orders’ (‘IROs’) to Part 7of the Sentencing Act 2020. The key points are below.

· An IRO would require the person being sentenced ‘to pay such percentage of [their] excess monthly income as is determined by the court’ for the term of the order.

· The individual must be at least 18 at the time of conviction, the court must have imposed a suspended sentence order in relation to the offence(s), and the person’s monthly income must exceed a specific amount, either at the date of sentence or during the operational period of the suspended sentence order.

· Regulations made by the Justice Secretary may define ‘excess monthly income’, ‘monthly income’, the form and manner of payments, period of payment and interest on unpaid payments.

· The ‘monthly income’ must not be less than 170 times the hourly amount of the national minimum wage.

· The amount to be paid may depend on the type of offence(s) committed, how the person is sentenced (e.g. a fine, too), and the person’s age.

· The court must ‘have regard’ to the person’s means, ‘so far as they appear or are known to the court’.

Discussion

IROs reflect one of the main themes of the Bill: to give courts more options when sentencing people, which will in turn avoid sentences of immediate custody and help to solve the ‘prisons crisis’. It is easy to think about how IROs might succeed. In general, courts could decide that, with the combination of the SSO and the reduction in income, there will be effective punishment and deterrence without the need for prison. There may also be an advantage in particular cases, especially those involving wealthier people.

However, IROs reveal three main points of concern.

 · First, there is scope for significant intrusion into people’s freedom by ‘regulations’ made by a Secretary of State. Income is the basis of most people’s quality of life; restricting it can clearly erode their autonomy and their dignity. The meaning of key phrases — such as ‘excess monthly income’—would be left to the Secretary of State, not Parliament. This would avoid the accountability and scrutiny that amendments to primary legislation, in theory, require when made through Parliament. It could mean that we end up with an onerous regime in which the Secretary of State permits courts to restrict income for significant periods of time, at relatively high rates and with interest added to it.

·  Second, it is not clear whether IROs are necessary. Although they would work in a distinctive way, why do we need them when we have fines and compensation (both of which can be paid by instalments already)? In addition to confiscation orders under the Proceeds of Crime Act 2002, it is not clear quite what IROs offer that we cannot achieve through existing options.

· Third, the Bill — at present — does not tell us what could happen if a person breaches the order by not paying the amount. Would this rarely happen because the money would go directly from the bank account, as some court-ordered payments already do? Would breach be addressed as contempt of court? Would it be a question of paying interest on unpaid sums? If so, how much? More orders for the court could also mean more opportunities for proceedings in relation to the breach of them, the ultimate punishment for which would usually be imprisonment. The Bill omits the issue of breach entirely, apart from to indicate that enforcement, compliance and appeals would all be, again, a matter for the Secretary of State.

Topic 3: From Prison to Probation

Topics 1 and 2 give examples of the overarching theme of the Bill, which is to offer options to court other than immediate custody. However, the effect of the Bill would be felt beyond courtrooms. It would have the consequence of shifting a great deal of work from the Prison Service to the Probation Service. The Bill’s range of new requirements—including more hours of unpaid work, longer SSOs and further provisions about licence and recall—would create more for probation officers to do.

On the surface, this is positive. If we criticise the prison system for its over-crowding and fundamental inability to get to the root causes of offending, why not shift the emphasis to the rehabilitative and community-centric Probation Service?

Yet the Probation Service is hardly without problems. The most recent chief inspector’s report emphasises the lack of staff and inadequate training and experience. In the rush to resolve the ‘prisons crisis’, the Bill may shift problems from one place to another.

It is not just a question of resources. It is also a question of fairness. With a greater role for the Probation Service, the Bill should also consider the state of proceedings alleging breach of requirements of a community sentence. At present, it is common to have a statement written by a probation officer, often with untested, unsupported assertions and served with little (if any) other evidence. It is rare to see the kind of preparation we might expect in court proceedings put into those alleging breach, even though the latter may also lead to imprisonment. The Bill does not seem to give thought to how greater probation supervision might create more breach proceedings. With few officers and ever heavier workloads, it would not be surprising to find breach proceedings in greater numbers and yet with even less rigour than they often have now. This issue maybe more nuanced than the question of avoiding a prison sentence, but it is hardly unimportant.

Conclusion

The most pressing issues in criminal justice remain (i) under-funding and (ii) an over-emphasis on a certain concept of punishment to the detriment of rehabilitation and effective prevention of re-offending. These issues are at the root of the lack of case management and the lack of procedural rigour in breach proceedings, as well as the limited resources of the Probation Service and community options.

The Bill has many strengths. It represents an overdue move from the reliance on imprisonment. In the short term, it is attractive. However, with its reforms, an already over-stretched Probation Service would be likely to encounter even more problems, unless accompanied by robust investment. The Probation Service must be provided with sufficient funding and resources to fulfil the aims of the Bill.

The Bill alone will not solve the problems the system currently faces. It might seem like an empty mantra, but it is one that will not go away: as long as we under-fund all parts of our criminal justice system, piecemeal reforms can only do so much.

Endnotes

[1] Jay Gormley and Melissa Hamilton and Ian Belton, The Effectiveness of Sentencing Options on Reoffending (Sentencing Council, 2022).

[2] See, for a loose analogy, the Sentencing Council’s guideline, Causing grievous bodily harm with intent to do grievous bodily harm/Wounding with intent to do GBH, which states that ‘[f]or categoryA1 offences the extreme nature of one or more high culpability factors or the extreme impact caused by a combination of high culpability factors may attract a sentence higher than the category range’.