R v Diabate [2025] EWCA Crim 283: Threatened Remand Cannot Override the Right to Representation — Immediate Custody Unlawful Under s226 SA 2020 Absent a Genuine Waiver

Court: Court of Appeal (Criminal Division) — Lord Justice Edis, Mr Justice Martin Spencer (delivering the judgment), and the Recorder of Coventry HHJ Lockhart KC

Date: 4 March 2025

Neutral Citation: [2025] EWCA Crim 283

Introduction

This appeal arises from the sentencing of Mr Bakhari Diabate for an offence of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861, committed during a “road rage” incident in South London. After pleading guilty to the section 20 count (and after the section 18 count was dropped and a dangerous driving count was left on the file), Mr Diabate was sentenced to two years’ immediate custody by Recorder Featherby KC in the Crown Court at Inner London. He was unrepresented at sentence.

The Court of Appeal granted an extension of time and leave to appeal. The central issues were:

Whether it was unlawful to impose a custodial sentence on an unrepresented defendant in the circumstances of this case, in light of section 226 of the Sentencing Act 2020 (SA 2020).
Whether the sentencing process below was flawed, including the approach to legal representation, categorisation under the Sentencing Council guideline for section 20, the calculation of guilty plea credit, and the consideration (or lack thereof) of suspension under the Imposition Guideline.
The appropriate sentence if the appeal succeeded.

Summary of the Judgment

Unlawfulness under s226 SA 2020: The Court of Appeal held that the Recorder’s approach to adjournment and remand effectively overbore the defendant’s freedom to choose legal representation. As a result, the statutory preconditions for imposing a sentence of imprisonment on an unrepresented defendant were not satisfied. The sentence was unlawful.
Errors in the sentencing process: The Recorder failed to refer to the Imposition Guideline when considering suspension and mistakenly applied a 25% discount for the guilty plea when the appellant was entitled to one-third, having indicated a plea on the Better Case Management (BCM) form.
Resentencing by the Court of Appeal: Exercising its power under section 11(3) of the Criminal Appeal Act 1968, as explained in Howden [2007] 1 Cr App R (S) 31, the Court resentenced rather than remitting. It found Category B2 to be appropriate, set a starting point of 24 months, applied a one‑third credit to impose 16 months’ imprisonment. It declined to suspend the sentence given the public nature and seriousness of the “road rage” wounding.
Outcome: The appeal was allowed. The two‑year sentence was quashed and replaced with 16 months’ immediate custody.

Factual Background

On 27 October 2023, after a traffic altercation on Denmark Hill, the appellant confronted the victim (Mr Ahmed). CCTV showed the appellant approaching the victim aggressively; a scuffle ensued during which the victim’s head struck the wheel rim of the appellant’s car, causing a deep laceration through the right eyebrow with skull visible and leaving permanent scarring. The appellant drove off but later surrendered to police. He answered “no comment” in interview.

At the Crown Court, the appellant pleaded guilty to unlawful wounding (s20) and not guilty to wounding with intent (s18) and dangerous driving; the s18 count was dropped and the driving charge was left on the file. The appellant was unrepresented at sentence. The Recorder warned custody was “highly likely,” offered an adjournment for representation but indicated he would remand in custody and reserve the case to himself. The appellant then chose to proceed immediately and was sentenced to two years’ imprisonment.

Key Holdings and Principles

Section 226 SA 2020 strictly limits custodial sentences for unrepresented defendants. A court “may not pass a sentence of imprisonment” unless the defendant is legally represented, has previously been sentenced to imprisonment, or has genuinely failed or been ineligible to obtain representation within the meaning of the statute. The appellant had no prior imprisonment and did not fail to obtain representation; his initial acceptance of representation was undone by the Recorder’s unjustified threat to remand.
Judicial threats of remand as the price of adjournment for representation are improper. They risk overbearing the defendant’s free choice and taint the sentencing process, potentially rendering any resulting custodial sentence unlawful under s226.
Imposition Guideline must be engaged when considering suspension. A failure to address the suspension factors is a material error in the sentencing process.
Guilty plea credit must be accurately calculated. Where a plea is indicated at the earliest stage (e.g., on the BCM form), a one‑third reduction generally applies; the Recorder’s 25% credit was wrong.
Resentencing power under s11(3) CAA 1968. The Court may substitute a lawful sentence in place of an unlawful one without remitting, consistent with Howden.

Analysis

1) Precedents and Instruments Cited

Section 226 Sentencing Act 2020 — Restricts courts from passing a sentence of imprisonment on an unrepresented offender unless specified conditions are met. The Court highlighted that:
- The appellant had not previously been sentenced to imprisonment.
- He had not “failed to benefit” from representation within s226(8), because he initially accepted the opportunity to obtain representation; it was the Recorder’s threat of remand and reservation of the case which deterred him. The choice was not genuine or free.
Section 11(3), Criminal Appeal Act 1968 — Empowers the Court of Appeal to quash and substitute sentences. The Court applied this to sentence afresh.
Howden [2007] 1 Cr App R (S) 31 — Confirms that s11(3) CAA 1968 enables substitution of a lawful sentence where the original is unlawful due to procedural irregularity (e.g., breach of statutory restriction on imposing custody on an unrepresented defendant).
Sentencing Council guidelines:
- Offences against the Person (s20) — The Court ultimately agreed the case fell within Category B2 (starting point 2 years; range 1–3 years) driven by the gravity and permanence of the injury.
- Reduction in Sentence for a Guilty Plea (as understood and applied by the Court) — A one‑third credit was due given the early indication of plea on the BCM form.
- Imposition of Community and Custodial Sentences (Imposition Guideline) — Requires explicit consideration of factors for and against suspension; the Recorder failed to do so.

2) The Court’s Legal Reasoning

a) Section 226 SA 2020 — Unlawful to impose custody in these circumstances

Section 226 establishes a clear statutory bar on imposing a sentence of imprisonment on an unrepresented defendant unless certain conditions are satisfied. The appellant:

Had not previously been sentenced to imprisonment; and
Had not “failed to benefit” from representation within the meaning of s226(8).

The judgment turns critically on the nature of the exchange at sentence. The Recorder did offer an adjournment to enable representation. The appellant initially accepted. The turning point was the Recorder’s announcement that if the matter were adjourned he would remand in custody and reserve the case to himself for December. The Court of Appeal held that this “threat” overbore the appellant’s freedom to choose, rendering any subsequent “choice” to proceed unrepresented and be sentenced immediately neither genuine nor voluntary for the purposes of s226(8).

“By deciding to remand the appellant in custody pending his obtaining legal representation, and by reserving the matter to himself, the Recorder effectively deprived the appellant of the chance of a fair hearing when the matter came back.”

The Court emphasised that s226 reflects a clear right to representation, especially where immediate custody is under contemplation and particularly for a first‑time prisoner. The combined effect of the Recorder’s threat and pre‑view of custody (“highly likely”) meant the protective purpose of s226 was frustrated. The sentence was therefore unlawful.

b) Procedural fairness and judicial conduct

The Recorder’s approach created an unfair binary for an unrepresented person: proceed immediately to likely custody without representation, or seek representation at the cost of immediate remand and delayed sentencing before the same judge. The Court stated plainly that:

The case should have been adjourned to allow the appellant to instruct lawyers.
His bail should have been renewed.
The Recorder should not have reserved the case to himself.

The exchange also suggested an element of pre‑judgment (e.g., indicating custody was “highly likely”), which sat uneasily with the absence of any reasoned engagement with suspension under the Imposition Guideline and the misapplication of plea credit.

c) Sentencing structure and errors at first instance

Guideline categorisation: The Recorder selected Category B2, describing the injury as “grave.” The Court of Appeal agreed that Category B2 was justified on either “grave injury” or “permanent irreversible injury or condition not falling within Category 1.”
Starting point and range: For B2, the starting point is 2 years, range 1–3 years. The Recorder moved to 32 months before plea credit. The Court found this too high on the facts, given the balance of aggravating and mitigating features; it restored the starting point of 24 months.
Plea credit: The Recorder’s 25% credit was wrong. Because the appellant indicated his intention to plead guilty on the BCM form and maintained the plea at the Crown Court, one‑third credit applied. The proper arithmetical outcome from a 24‑month starting point is 16 months.
Suspension: Although attracted by submissions to suspend (noting the appellant’s partner had recently given birth, his genuine remorse, and that he had already served four months), the Court considered the public nature, “road rage” context, and seriousness of the injury meant suspension would send the wrong message. Immediate custody was required.

3) Impact and Significance

a) Strengthening the s226 protection

The case provides a clear, practical application of s226 SA 2020. It confirms that:

Courts must not impose imprisonment on an unrepresented defendant unless one of the statutory gateways is genuinely satisfied.
Adjournment for representation should not be made conditional upon immediate remand where that threat would coerce a defendant to proceed unrepresented. Coercive conditions can vitiate any “choice” and render custody unlawful.

b) Sentencing practice at first instance

Representation: Judges should proactively facilitate representation where custody is in contemplation, especially for first‑time prisoners, and avoid any appearance of pressuring a defendant into proceeding unrepresented.
Bail and reservations: Renewal of bail should be carefully considered when the sole need is to secure representation. Reserving the case to oneself after indicating custody is “highly likely” risks perceptions of pre‑judgment and unfairness.
Guideline fidelity: Courts must: (i) categorise correctly; (ii) articulate aggravating and mitigating features transparently; (iii) apply the guilty plea reduction accurately; and (iv) address the Imposition Guideline’s suspension factors expressly.

c) Appellate approach

The judgment reaffirms that where a sentence is unlawful because of procedural impropriety (e.g., breach of s226), the Court of Appeal may substitute a lawful sentence without remitting, preserving proportionality and finality (Howden).

Complex Concepts Simplified

Section 226 SA 2020 — Custody where unrepresented: A court generally cannot impose a sentence of imprisonment if the defendant is not represented, unless:
- They have previously been sentenced to imprisonment; or
- They have genuinely declined or failed to obtain representation after being informed of the right and having a real opportunity, or were ineligible on financial grounds.
If a defendant agrees to obtain representation but is dissuaded by the prospect of immediate remand or other judicial pressure, they have not “failed to benefit” and custody will be unlawful.
Guilty plea credit: Defendants who indicate a guilty plea at the first reasonable opportunity (e.g., on the BCM form) normally receive a one‑third reduction in sentence. Later pleas receive smaller reductions. Getting this wrong can materially affect the outcome.
Category B2 for s20: The Sentencing Council guideline assesses harm and culpability. Category B2 (starting point: 2 years) includes cases with “grave injury” or permanent irreversible injury falling short of Category 1. The presence of permanent, visible scarring and significant psychological impact supported B2 here.
Imposition Guideline (suspension): Even where the custody threshold is passed, the court must weigh factors for and against suspension. Factors against include the need for punishment; factors in favour include strong rehabilitation prospects and the impact on dependants. Judges should demonstrate that these factors have been considered.
Resentencing power: Under s11(3) CAA 1968, the Court of Appeal can quash an unlawful sentence and impose a different one. This avoids unnecessary remittals where the error is clear and a lawful sentence can be crafted.

Application to the Facts: Why 16 Months Immediate Custody?

Harm/Culpability: The injury was severe, leaving permanent scarring and psychological consequences, justifying Category B2.
Aggravation: Public, “road rage” context; leaving the scene without providing details; the confrontation was aggressive.
Mitigation: Genuine remorse; a decade without offending since youth; positive personal circumstances; willingness to address thinking skills and emotional regulation.
Starting point and movement within range: Balanced correctly, the Court returned to the B2 starting point of 24 months rather than 32 months after trial.
Plea credit: One‑third reduction from 24 months yielded 16 months.
Suspension: Refused due to seriousness, public nature, and message required for “road rage” violence.

Practical Implications

For Judges

Do not use remand as leverage when offering an adjournment for representation; doing so may vitiate voluntariness under s226.
Where custody is in contemplation for an unrepresented defendant, adjourn with bail to facilitate representation unless there is a clear and articulated reason to refuse bail consistent with law and fairness.
Do not reserve cases to yourself in circumstances that could create a perception of pre‑judgment; ensure procedural fairness.
When sentencing:
- Signpost categorisation under the relevant guideline and the reasoning behind movement within the range.
- Apply the guilty plea guideline precisely; confirm the timing of any indication of plea.
- Address the Imposition Guideline explicitly when considering suspension.

For Defence Practitioners

Raise s226 SA 2020 immediately if a court proposes to sentence an unrepresented client to imprisonment without a genuine waiver or ineligibility.
Ensure the BCM form accurately records any early indication of plea to secure one‑third credit.
Prepare detailed submissions on suspension, addressing each factor under the Imposition Guideline, especially where immediate custody would impact dependants and rehabilitation prospects are strong.

For Prosecutors

Assist the court by ensuring the correct application of plea credit (do not understate the reduction) and by fairly identifying aggravating and mitigating features.
Where a defendant appears unrepresented and custody is in prospect, ensure the court’s attention is drawn to s226 SA 2020.

Notable Passages

“In our judgment the appellant had not ‘failed to benefit from relevant representation’… When the Recorder offered the appellant the opportunity to be legally represented, the appellant accepted that offer and only changed his mind when the Recorder then threatened to remand him in custody. In our judgment that threat had the effect that the appellant's freedom to choose whether or not to be legally represented was overborne.” (para 22)

“This was an inappropriate way for a judge to deal with a defendant who appeared in person. Clearly the matter should have been adjourned to allow the appellant to receive legal representation, his bail should have been renewed and the Recorder should not have reserved the matter to himself.” (para 20)

“We therefore quash the sentence of two years’ imprisonment and we impose in its place a sentence of 16 months’ imprisonment.” (para 39)

Conclusion

R v Diabate is an important reaffirmation of the statutory protection in section 226 SA 2020: courts may not impose imprisonment on an unrepresented defendant unless the statutory gateways are genuinely satisfied. Judicial conduct that effectively coerces a defendant to give up representation—such as threatening immediate remand as the price of adjournment—undermines voluntariness and renders any resulting custodial sentence unlawful.

The decision also reinforces core sentencing disciplines: fidelity to guideline categorisation and ranges, accurate application of guilty plea credit, and explicit reasoning under the Imposition Guideline when considering suspension. Although the Court found Category B2 appropriate, corrected the starting point, and granted the full one‑third plea credit, it declined to suspend the sentence due to the seriousness of the public “road rage” wounding.

The key takeaway is twofold: procedural fairness—especially regarding representation—directly conditions the lawfulness of custody; and rigorous, transparent guideline application remains essential to proportionate sentencing. Together, these principles ensure both the integrity of process and the legitimacy of outcome.