The Sentencing Bill: Reform Must be Matched by Long-Term Investment

On 2 September, the government revealed its Sentencing Bill, building on some of the recommendations of the Independent Sentencing Review led by former Lord Chancellor David Gauke.

The Bill sets out reforms to the custodial sentencing framework in England and Wales, with important implications for prison management, community supervision, and judicial independence.  

Among its measures, the Bill would introduce a presumption against the use of short prison sentences, expand the use of electronic monitoring, create an earned progression model for release, and grant ministers’ power to veto sentencing guidelines. The government considers the Bill an important step towards placing our prison system on a more sustainable footing, alongside commitments to allocate an additional £700 million into the Probation service by 2028 and to recruit 1,300 trainee probation officers by 2026.

JUSTICE welcomes the government’s recognition that reforms to reduce reliance on custody and to strengthen and expand community alternatives are urgently needed. However, without sustained investment in prison and probation services their proposed reforms will fail. In the face of a national prison estate crisis and significant shortfall of probation staff, legislation must be matched with adequate long-term funding, operational support and joined up approaches from across government.  

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A closer look at the Bill

Sentencing  

The Bill would give Judges discretion to replace short sentences of 12 months or less with suspended sentences (for which people do not go to prison as long as they do not commit further offences and comply with certain rules) and to suspend sentences for up to three years. This is a welcome step given suspended sentence orders have a proven lower reoffending rate than short prison sentences. Rather than being limited to six months, sentencers can now postpone sentences for up to 12 months if, for example, people need to undertake addiction treatment. Specific reference to victims would now be included in the statutory purposes of sentencing, with a domestic abuse flag also introduced for sentencing.  

Adult’s serving Standard Determinate Sentences (“SDS”) would no longer be eligible for Home Detention Curfew (“HDC”) and probation officers would have discretion to end community orders once a person has completed all requirements.  

Reforms to sentencing are accompanied by replacing the “Rehabilitation Activity Requirement” with a new ‘Probation Requirement’ within the Sentencing Code, providing increased flexibility to probation officers to tailor rehabilitation activities to individual risks and needs.  

To strengthen community alternatives to prison, the Bill introduces further specific requirements for the court to impose within Community Orders and Suspended Sentence Orders. These include a ban on entering drinking establishments, a prohibition on driving and imposing restriction zones – areas from which individuals will be prohibited from leaving. There would also be new financial penalties for those who receive a suspended sentence and have an income above a certain threshold.  

The Bill also introduces a statutory requirement for the Sentencing Council to gain explicit approval from both the Lord Chancellor and Lady Chief Justice before issuing final, definitive guidelines.  

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Management of offenders  

The Bill introduces a progression model for certain people in prison serving SDSs.  For those with previous automatic release dates at the 40 or 50% point, this has been replaced by eligibility for release at the one-third point. Similarly, those who were formerly released at the two-thirds point will now become eligible for release no earlier than the halfway point. Eligibility of release would be based on behaviour and independent adjudicators would now be able to add up to twice the current maximum number of days to a sentence as a result of an adjudication.

The second stage of the progression model is an intensive supervision period with probation services being able to add additional restrictive measures and a presumption that all prison leavers released at this stage would be tagged. In the third stage, only those considered to be the highest risk would be actively supervised.  

In respect to the imposition of community orders or suspended sentence orders, the Bill extends the use of unpaid work requirements and allows for the publishing of names and photographs of offenders subject to this requirement.

The Bill amends fixed term recalls – where someone serving a fixed-length sentence is recalled to prison for breaching their licence conditions – from 28 days to 56 days and seeks to narrow the use of standard recalls.  

As part of the management of those within custody the removal of Foreign National Offenders has been streamlined. They would now be eligible for deportation at any point after sentencing.

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Bail  

The Bill would expand the ‘no real prospect’ test to convicted defendants, meaning that certain grounds for refusing bail to this cohort would no longer apply where there is no real prospect of them receiving a custodial sentence. The provisions also exclude suspended sentences from the ‘no real prospect’ test. The amendments provide conditions for courts to subject those who have no real prospect of a custodial sentence but do have a real prospect of a suspended sentence to electronic monitoring as part of their bail conditions.  

Along with the amendments to legislation set out within the Bill, the government announced the launch of an expression of interest exercise to identify further sites for Intensive Supervision Courts.  Further, a pilot scheme is due to be established in October 2025 to see an expansion in electronic monitoring, with plans for offenders to be tagged before leaving the prison estate.  

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Our concerns and recommendations

The success of sentences involving community options depend on the proper resourcing and funding of the probation service and voluntary community services. The Bill would give increased powers to the probation services to restrict the lives of those leaving prison, so it is important that adequate training is provided to ensure their proper use. Probation services must also be equipped with the tools and time to effectively manage risk, support rehabilitation and implement proper procedures to ensure the safety of victims and survivors. Similar concerns apply to amendments to the recall procedure, monitoring, resourcing and funding will be required to prevent unintended consequences of people ending up serving multiple 56-day stints in prison.

Likewise, the electronic monitoring roll out must not be done without adequate safeguards and support to prevent those on tag from being set up to fail. In JUSTICE’s submissions on the Independent Sentencing Review we highlighted the importance of ensuring we do not create ‘alternatives’ to custody which instead resemble ‘virtual prisons’.  

A necessary and proportionate approach must be taken to community-based alternatives to prevent the use of overly restrictive conditions. Careful consideration must be given to imposing conditions such as restriction zones and enhanced electronic monitoring, or there is a risk of infringing on fundamental human rights.  

For example, probation services must ensure conditions do not interfere with prison leavers’ right to liberty (Article 5) and right to respect of private life (Article 8). Overly restrictive conditions risk isolating individuals, limiting employment opportunities and ultimately undermining the opportunity for rehabilitation.

The earned progression scheme must be accompanied with equal access to education and enhanced rehabilitation services within prison. Without this, the scheme risks worsening pre-existing inequalities within prison and those with certain traits spending prolonged periods in prison. Subjective assessments and unequal access to opportunities of progression risks violating fundamental rights to liberty, procedural fairness and non-discrimination.  

The scheme also risks those considered to be of ‘bad behaviour’ being imprisoned until the end of their sentence, meaning they are then released without probation conditions; this could have concerning consequences from a public protection perspective. Victims should be informed of what to expect from the earned progression scheme in respect to progression decisions and amended release dates to minimise distress and promote transparency.  

The earned progression scheme requires transparent and clear guidance which is consistently and objectively applied to ensure fair implementation and understanding for individuals subject to the scheme, victims and the wider public.

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What next?

JUSTICE supports efforts to reduce reoffending and strengthen the Probation service. However, we urge the government to pair legislative reforms with a long-term commitment to proper funding of HMPPS services. Only then can we build a fairer and more effective justice system and restore public confidence.

We will be briefing parliamentarians on the Sentencing Bill in the coming weeks and months. If you would like more information, or wish to share your views on the proposals, please get in touch.

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