The impetus for the Independent Sentencing Review by former Conservative justice secretary David Gauke was the increasing prison population, which has doubled since 1993 to 88,000 people.
The justice secretary told the House of Commons in May that most of the recommendations would be accepted but did not respond to the review in depth. Instead, the government jumped straight to a new Sentencing Bill, laid on 2 September 2025, to implement the accepted recommendations. The bill introduces significant changes to sentencing and release provisions, but exactly what and how, is far from clear at first glance. There are also some important and unexpected changes, including the much-publicised curtailment on the independence of the Sentencing Council and the less publicised changes to the test for bail, including new provisions affecting women and carers.
Complex and different
The Sentencing Bill is 90 pages long (the first two clauses alone are nine pages long) and is extremely hard to make sense of. In fact, the overriding takeaway after several hours of study is that the changes will add a great deal of complexity to sentencing and release procedures, in line with recent trends. A significant number of the Gauke proposals have not been included or have been significantly varied. Most of the new measures include carve outs and exceptions that will require individuals and their lawyers to take a great deal of care, time and attention to understand them. The bill will primarily amend the Sentencing Code (inserting new numbers to the currently very clear and comprehensive statute) and the already very convoluted Criminal Justice Act 2003.
Will it cure the mischief of the overuse of custody?
The Gauke review found that the key drivers of the rise in the number of people in prison are the increase in the use and length of custodial sentences. But less than half of its 48 recommendations relate directly to reducing the use or length of custody. Only three hard-edged recommendations directly sought to achieve that aim: a presumption against the use of short sentences of under 12 months, enabling deferred sentences for 12 (rather than six) months and enabling suspended sentences to be used where a custodial sentence of up to three (rather than two) years might otherwise be imposed. All of these recommendations will be implemented by the bill. However, there are a significant number of caveats that undermine the impact of these provisions.
Two missed opportunities are the failure to tackle sentence inflation or reset the sentencing framework entirely. The Gauke review was silent on the former, but recommended 'crime reduction' as an overarching principle governing the five purposes of sentencing. However, the bill does not provide any overarching aim as recommended.
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The progression model in practice
The Gauke review proposed a progression model characterised in the press as rewarding good behaviour with early release. The proposals raised serious questions about how such a scheme would work in practice, especially if release decisions were to be made by prison officers. It was unclear how they could be made fairly and without discrimination.
The resulting scheme looks quite different. The bill requires prisoners on standard determinate sentences to be released much earlier, unless they are awarded extra days through the formal disciplinary process by judges. Additional days can currently be imposed but the government plans to double the number given at any one time. Use of the judiciary avoids inconsistent and discriminatory decision making by prison staff. However, the adjudication system needs to be considerably strengthened to ensure that they are administered fairly. In 2016 and 2017 the Howard League published reports highlighting concerns around the exponential use of extra days.
It is troubling that, due to the desire to deal with the prison capacity crisis in the adult estate, children are excluded from the opportunity to benefit from earlier release and will spend longer in custody than adults serving equivalent sentences.
Recalls - more, not less, short spells in prison?
The proposal to remove the Parole Board involvement in standard determinate recalls is firmly in the bill. However, concerns raised by the Justice Committee in an evidence session on 1 July 2025 about the lack of involvement of the parole board for multiple and successive recalls do not appear to have been addressed.
The new regime will effectively mirror the temporary arrangements prepared for 'FTR48', implemented on the 2 September. This resulted in all adults recalled on sentences of 12 months or more but less than four years being released after a fixed period of 28 days unless exclusions apply. The bill will extend fixed term recalls from 28 days to 56 days for qualifying standard determinate sentences of any length (as opposed to only those under 4 years). The rationale for extension of the recall period from 28 days to 56 days is to give probation officers more time to prepare for release (as recommended by the review), although it remains unclear what evidence there is that preparation will be any more feasible or effective within this period than within 28 days and whether that outweighs the harm of short spells in prison acknowledged by the Gauke review.
Tacking the overuse of remand
One welcome surprise (largely as it was out of scope of the Gauke review) is a change to the Bail Act which seeks to reduce the availability of exemptions to bail on the basis that there is no real prospect of immediate custody in line with the presumption against short sentences. It also increases the scope for electronic tagging for those on bail on account of the no real prospect test.
The bill also makes provision to take into account specific factors that apply to women when considering bail including pregnancy, being a primary caregiver, and being a victim of domestic abuse.
Dr Laura Janes KC (Hon)
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