Changes to the Bail Act 1976 (from 22 March 2026)

Practitioners should be well aware by now of the changes to sentencing practice brought about by Part 1 of the Sentencing Act 2026 with effect from 22 March 2026, significant among which is the presumption in favour of a suspended sentence order for custodial sentences of 12 months or less (see this article by Laura Collier and Sophie Hanson summarising the changes to the sentencing practice).

But Part 3 of the Sentencing Act 2026 also makes changes to the Bail Act 1976.  Thankfully Part 3 only consists of one section (section 44) and two significant amendments, namely:

- a presumption against the attachment to bail conditions of electronic monitoring requirements when the presumption in favour of a suspended sentence applies, and

-  the addition of further circumstances a court must consider before it applies an exemption to the right to bail and remands the defendant into custody.

Presumption against electronic monitoring requirements

The new section 3AAB has been added to the Bail Act 1976.  It is headed “Conditions for the imposition of electronic monitoring requirements: certain adults released on bail where real prospect of suspended sentence”.  The provision goes hand in hand with above referenced amendment to the Sentencing Act 2026 creating a presumption in favour of suspending sentences of 12 months or less for convictions after 22 March 2026.

In short, section 3AAB creates a presumption against the imposition of electronically monitored conditions to bail when there is a “real prospect” of a suspended sentence.  Such bail conditions can only be imposed if one or more of a number of (familiar) conditions is / are met, which differ according to the category of the conviction i.e. indictable, either way or summary only offence.  As practitioners know, electronic monitoring is often imposed to secure compliance with conditions such as curfew, residence and exclusion zones.

When the presumption applies

Sub-section 3AAB(1) provides that the presumption applies when there is “no real prospect” of a custodial sentence other than a suspended sentence “and” there is “a real prospect” of a suspended sentence.  Rather than being a combination of requirements, which would be unnecessarily duplication, this pre-condition appears to relate to two separate scenarios: (i) when there is no real prosect that that court will impose a sentence of immediate custody, and (ii) when there is a real prospect of a suspended sentence.  Put another way, sub-section(1) should be read disjunctively rather than conjunctively.  Unfortunately, the Explanatory Notes do not assist on the point.

The presumption does not apply in extradition proceedings.

Conditions to be satisfied before electronic monitoring is imposed

That lack of clarity in sub-section (1) aside, the rest of the new section is reasonably clear.  If the presumption applies, an electronic monitoring requirement can only be imposed:

- When there is a conviction for one or more indicatable or either way offences[i]: if the court is satisfied that there are substantial grounds for believing that without such a requirement the defendant (a) would fail to surrender, commit a further offence, or interfere with witnesses / obstruct the course of justice, or (b) would not be granted bail without the electronic monitoring requirement.

- When there is a conviction for one or more summary offences: if the defendant (a) has previously failed to surrender whilst on bail in any proceedings, (b) was on bail when one or more of the offences for which s/he has been convicted was committed, (c) has been arrested for a breach of bail in the proceedings (pursuant to section 7 of the Bail Act) and would fail to surrender, commit further offences or interfere with witnesses / obstruct the course of justice if bailed, or (d) would not be granted bail without the electronic monitoring requirement.

In both circumstances the court must also be satisfied that there is provision for electronic monitoring available in each relevant local justice area.

Additional mandatory considerations before refusing bail

Paragraph 9 of Schedule 1 to the Bail Act 1976 is amended to add a further mandatory consideration the court must have reference to before applying the exemption to the right to bail in paragraph 2 i.e. where the court is satisfied that there are substantial grounds for believing that the defendant will fail to surrender, commit offences or interfere with witnesses / obstruct the course of justice.

Added to the list of considerations is the fact (“where it is the case” - emphasis added) that the defendant (i) is pregnant, (ii) is the primary carer for another person, or (iii) has been the victim of an offence of domestic abuse within the meaning of section 1of the Domestic Abuse Act 2021.  In relation to the latter circumstance, the amendment is silent as to whether the “offence” must have resulted in a conviction.

Consequential amendments

A definition of suspended sentence is added to section 2(2) of the Bail Act.

The general requirements for the imposition of electronic monitoring set out in section 3AB of the Bail Act do not apply to a person to whom section 3AAB applies i.e. section 3AAB consists of an entire regime when it applies, and section 3AB is then not applicable.

The general provisions in relation electronic monitoring of section 3AC now also refer to section 3AAB.

Schedule 1 (“Persons entitled to bail: supplementary provisions”) is also amended to disapply the exceptions to the right to bail in paragraphs (2), (2A) and (6) of the Schedule to cases in which section 3AAB applies.

Commencement

These amendments to the Bail Act 1976 came into force on 22 March 2026 pursuant to Regulation 2 of the Sentencing Act 2026 (Commencement No.1) Regulations 2026 (SI 2026/86).  Therefore, the provisions of section 3AAB will only apply when the defendant is convicted after 22 March 2026 and the court is considering bail pending sentence.