R v Bakhari Diabate

A custodial sentence imposed on an unrepresented defendant is unlawful where a judge’s threat to remand the defendant in custody overbears a genuine choice about representation. Under the Sentencing Act 2020, a defendant who accepts representation and changes course only because of that threat has not refused or failed to apply for relevant representation. The sentencing court should adjourn, renew bail and avoid reserving the matter to itself. On appeal, the court may substitute a lawful sentence for one invalidated by procedural unfairness. Physical and psychological harm may support Category 2 categorisation. Serious public road-rage wounding may justify immediate custody despite rehabilitation and family circumstances. An indicated guilty plea attracts one-third credit.

The appellant pleaded guilty to unlawful wounding after charges of wounding with intent and dangerous driving were resolved at the Crown Court at Inner London. He remained unrepresented. On 24 October 2024, the Recorder categorised the offence as B2 and imposed two years’ imprisonment, applying a 25 per cent guilty plea reduction. The appellant sought an extension of time and leave to appeal, challenging the sentencing process, the length of sentence and the refusal to suspend it. The central issues were whether his choice about representation had been overborne, whether the sentence was unlawful, whether the Court of Appeal should remit or resentence, and what sentence was appropriate.

The court granted an extension of time and leave to appeal. It allowed the appeal to the extent that the sentence was quashed and replaced with 16 months’ imprisonment.

1. The Recorder had offered legal representation but then threatened to remand the appellant in custody if sentencing was adjourned. In the circumstances, that threat overbore the appellant’s freedom to choose. He had therefore not refused or failed to apply for relevant representation within section 226(8) of the Sentencing Act 2020. The custodial sentence was unlawful.
2. The approach to representation deprived the appellant of a fair sentencing hearing and tainted the proceedings. Effective representation could have addressed the correct one-third guilty plea credit, the categorisation of the offence, the appropriate sentence and suspension. The Recorder should have adjourned for representation, renewed bail and not reserved the matter to himself.
3. Applying Howden [2007] 1 Cr.App.R (S) 31, the court held that section 11(3) of the Criminal Appeal Act 1968 permitted it to substitute a lawful sentence, including one of the same length, for a sentence rendered unlawful by procedural impropriety. Remittal was therefore unnecessary.
4. On resentencing, the physical and psychological effects of the injury justified Category 2 under the applicable guideline. The aggravating and mitigating circumstances warranted the 24-month starting point, rather than 32 months. The appellant was entitled to a one-third reduction for his guilty plea, producing 16 months.
5. Suspension was inappropriate. Although family impact, rehabilitation and time already served favoured suspension, the serious injury and the public road-rage context meant that immediate custody was required. Suspension would give a wholly wrong message concerning offences of that nature.

1. Crown Court at Inner London: Recorder Featherby KC sentenced the appellant on 24 October 2024 to two years’ imprisonment for unlawful wounding.
2. Court of Appeal (Criminal Division): granted an extension of time and leave to appeal, quashed the sentence and imposed 16 months’ imprisonment under [2025] EWCA Crim 283.