Introduction

The Sentencing Act 2026 (‘the Act’) received Royal Assent on 22 January 2026 and is likely to reduce the number of custodial sentences imposed by courts for health and safety offences. The Act was introduced with a view to freeing up overcrowded prisons following a period of consultation which highlighted the current challenges facing the criminal justice system. 

Presumption of suspended sentences

Section 1(3) of the Act will require courts to apply a presumption in favour of suspending custodial sentences of 12 months or less. The introduction of a presumption of a suspended sentence order is the main mechanism through which the Act intends to reduce the number of custodial sentences imposed. This presumption will apply to defendants convicted after 22 March 2026 and can only be overcome if exceptional circumstances apply, set out at section 1(2)(3) of the Act. These exceptional circumstances include where:

• the offender is already in custody or on remand in connection with another offence;
• the offence was committed while the defendant was already subject to a court order;
• suspending the sentence would place a specific individual at risk of serious harm.

These exceptions mean that courts will retain discretion to impose an immediate custodial sentence of 12 months or less where the circumstances justify it. 

Impact on convictions for health and safety offences

The presumption of a suspended sentence will apply to all convictions for health and safety offences determined by the Magistrates’ Court. Under section 224(1A)(b) of the Sentencing Act 2020, the Magistrates’ Court is able to impose a maximum custodial sentence of 12 months. In practice, this will mean that for any convictions for health and safety offences imposed by Magistrates, a suspended sentence will be imposed rather than a custodial sentence unless exceptional circumstances apply. This is likely to reduce the number of custodial sentences imposed by Magistrates for breaches of the provisions of the Health and Safety at Work Etc. Act (‘HSWA’) 1974. For example, we can expect to see fewer custodial sentences imposed on employees by the Magistrates’ Court for breaches of section 7 HSWA 1974, and fewer custodial sentences imposed on directors for breaches of section 37 HSWA 1974.

The Crown Court, however, is not limited to imposing maximum custodial sentences of 12 months. The Crown Court is able to impose the maximum sentence authorised by law for an offence. For the offence of gross negligence manslaughter for e.g., this is life imprisonment. In gross negligence manslaughter cases, the presumption will only apply if culpability is determined to fall at the very bottom of the range of category D, which carries a prospective sentence of one years’ custody. This will not be the case for the vast majority of gross negligence manslaughter offences.

All offences under the HSWA 1974 carry a maximum custodial sentence of two years and the Crown Court’s assessment of harm and culpability on a case-by-case basis will determine if the presumption is applicable in relation to the above offences. The applicability of the presumption will depend on where a case sits within a category range following an assessment of the level of harm and culpability. Where, after this assessment, the prospective custodial sentence is one year or less, the presumption will apply that the sentence is to be suspended.

Comment

The Sentencing Act 2026 is likely to significantly reduce the number of immediate custodial sentences imposed by courts for health and safety offences from 22 March 2026. For any health and safety cases determined by the Magistrates’ Court, a presumption will apply in favour of imposing a suspended sentence over a custodial sentence. This presumption will mean that custodial sentences will only be imposed by Magistrates’ Courts for offences under the HSWA 1974 in exceptional circumstances. In the Crown Court, the assessment of harm and culpability on a case-by-case basis will determine if the presumption is applicable for offences under the HSWA 1974. We wait to see how this will play out in practice and the impact this will have on the criminal justice system.