Changes to bail framework for adults

The recent amendments to the Bail Act 1976 introduced by the Sentencing Act 2026 aim to alleviate the pressures of the prison remand population. This circular provides an overview of these changes, which are designed to guide courts in making more informed bail decisions without offering legal advice. For comprehensive guidance, prosecutors can refer to resources available on the CPS website.

One of the notable changes introduced is the alteration of the ‘no real prospect’ test. The Sentencing Act now establishes a presumption to suspend sentences of 12 months or less. This shift is expected to reduce the likelihood of immediate imprisonment, allowing courts to better predict whether a defendant might receive an immediate custodial sentence when considering bail. With a clearer understanding that immediate custody is unlikely, courts may find less justification for remanding defendants in custody.

In effect, the previous ‘no real prospect’ test has transformed into a ‘no real prospect of immediate custody’ test. This new criterion will apply not only to pending cases but also to defendants who have already been convicted and are awaiting sentencing. This change is fundamental in ensuring fewer exceptions to bail apply, thus enabling more defendants to secure bail without unnecessary remand.

Additionally, the amendments affect the criteria for imposing electronic monitoring on defendants. Under the previous Bail Act, electronic monitoring was only applicable when the court believed it was essential to prevent remand into custody. However, the updated legislation permits electronic monitoring as a condition of bail in instances where the court has established a real prospect of a suspended sentence, coupled with no prospect of immediate custody.

Moreover, the Bail Act will now consider additional statutory factors during bail deliberations. Previously, courts had discretion to account for various factors such as the character of the defendant and the seriousness of the offence. The revised statute now specifically includes considerations for defendants who are pregnant, primary caregivers, or victims of domestic abuse. This legislative recognition reinforces the importance of these factors, ensuring courts actively consider them during bail assessments.

Overall, the changes introduced by the Sentencing Act 2026 represent a significant shift in the bail and remand framework for adults, aiming to foster a fairer justice system that prioritises alternatives to custody when appropriate