Changes to adult bail law in England and Wales came into force on 22 March 2026. The reforms, made by section 44 of the Sentencing Act 2026, amend the Bail Act 1976 and may affect whether an adult defendant is granted bail, remanded in custody or made subject to electronic monitoring.
This article outlines the principal changes and explains why early legal advice can be important.
Is there a right to bail?
A person accused of an offence generally has a right to bail. However, that right is subject to statutory exceptions.
Depending on the circumstances, a court may refuse bail where there are substantial grounds for believing that the defendant would:
Fail to surrender to custody
Commit an offence while on bail
Interfere with witnesses or otherwise obstruct the course of justice
The applicable rules may differ according to the alleged offence, whether the defendant has been convicted, previous bail history, and other statutory provisions. A bail decision is therefore always specific to the facts of the individual case.
The new “no real prospect of immediate custody” test
One of the principal changes concerns adult defendants for whom there is no real prospect of an immediate custodial sentence.
Previously, the relevant statutory test referred to there being “no real prospect” that the defendant would receive a custodial sentence. From 22 March 2026, the legislation instead asks whether there is no real prospect that the defendant will receive a custodial sentence other than a suspended sentence.
In practical terms, this is commonly described as the “no real prospect of immediate custody” test.
The amended test also applies to a defendant who has been convicted and is awaiting sentence. Where it applies, certain statutory exceptions to the general right to bail—including some exceptions based on risks of absconding, offending on bail or interference—do not apply.
The distinction matters because a suspended sentence is a custodial sentence, but it does not ordinarily require the defendant to enter custody immediately. Where immediate imprisonment is not realistically in prospect, remand in custody may be harder to justify under the amended framework.
This does not mean that bail is automatic. The court must still apply the relevant legislation and consider the allegation or proven offending, the defendant’s history, the available evidence and all other relevant circumstances.
Electronic monitoring on bail
The reforms also change the circumstances in which electronic monitoring may be imposed on an adult defendant.
Previously, electronic monitoring could generally be imposed only where the court was satisfied that, without the requirement, the defendant would not be granted bail. The new provision means that electronic monitoring is not always limited to cases in which it is the sole alternative to remand in custody.
For the new adult provision to apply, the defendant must be aged 18 or over, be released on bail in non-extradition proceedings, and the court must consider that:
There is no real prospect of a custodial sentence other than a suspended sentence; and
There is a real prospect of a suspended sentence.
Further statutory conditions must also be met. The requirements differ according to the type of offence, but may include a finding that, without electronic monitoring, there are substantial grounds for believing that the defendant would fail to surrender, commit an offence on bail, interfere with witnesses or obstruct the course of justice. The court must also be satisfied that suitable electronic-monitoring arrangements are available in the relevant local justice area.
Electronic monitoring is not a punishment in itself. It is a mechanism for monitoring compliance with another bail condition, such as a curfew or a location restriction.
Personal circumstances the court should consider
The Bail Act now expressly identifies further matters that may be relevant when the court is deciding whether to grant bail or remand a defendant in custody. These include whether the defendant:
Is pregnant
Is the primary carer for another person
Has been the victim of an offence involving behaviour amounting to domestic abuse
These circumstances could already be considered where relevant. Their express inclusion is intended to ensure they are properly brought into the court’s assessment.
Evidence is important. A defendant relying on caring responsibilities, pregnancy, domestic abuse or another significant personal circumstance should tell their solicitor as early as possible. Supporting documents may assist where they are available and appropriate.
What bail conditions can a court impose?
A court may impose bail conditions that appear necessary to address an identified risk. Depending on the case, these may include:
Living at a specified address
Reporting to a police station
Observing a curfew
Electronic monitoring
Not contacting a particular person
Staying away from a particular address or area
Surrendering a passport or other travel document
Providing a surety or security
Conditions must be directed to a lawful purpose, such as securing the defendant’s attendance at court, preventing further offending on bail, preventing interference with witnesses or protecting the defendant. A defendant must comply with every condition unless and until it is formally varied or removed.
Can bail conditions be changed?
An application may be made to vary bail conditions where they have become unworkable, unnecessary or disproportionate. For example, a variation may be needed because of employment, accommodation, childcare or caring responsibilities, medical treatment, or new information about the case.
A defendant should not simply disregard a condition. Until the court formally varies or removes it, the condition remains binding.
What happens if bail is refused?
If the magistrates’ court refuses bail, it may be possible to renew the application or, in an appropriate case, seek bail from the Crown Court. The available procedure will depend on the stage and history of the proceedings.
A properly prepared bail application may address:
Suitable accommodation
Family and community ties
Employment, education or caring responsibilities
Previous compliance with bail
Proposed conditions capable of addressing the prosecution’s concerns
A suitable surety, where appropriate
The prosecution’s stated objections
Any relevant medical, safeguarding or domestic-abuse evidence
The court may not be required to hear repeated bail applications where there has been no material change in circumstances. It is therefore important to prepare the first application carefully.
How Adel Jibs & Co Solicitors can help
A decision to remand someone in custody can have immediate consequences for employment, housing, family life and the ability to prepare a defence.
Our criminal defence team can advise on bail, prepare and present bail applications, respond to prosecution objections, and apply to vary existing conditions. We can also advise individuals accused of breaching bail conditions or failing to surrender to custody.
Need urgent advice about bail or a criminal investigation?
Contact Adel Jibs & Co Solicitors or send us a WhatsApp message. WhatsApp enquiries may be sent at any time and will be reviewed as soon as possible.
Sending a message does not create a solicitor-client relationship. Please do not send confidential or time-sensitive documents unless requested.
Important information
This article provides general information about the law in England and Wales. It is not legal advice and should not be relied upon as a substitute for advice about an individual case. Bail decisions are fact-sensitive, and the statutory framework includes exceptions that cannot all be addressed in a general article.
Law stated as at 7 August 2026.
Official sources
- Sentencing Act 2026
- Sentencing Act 2026 (Commencement No. 1) Regulations 2026
- Ministry of Justice: Bail Act 1976 amendments
- Bail Act 1976
The Ministry of Justice guidance confirms the intended effect of the amended test and the added statutory considerations; the enacted provision sets out the more detailed conditions for electronic monitoring.