Custody or Counsel

Fatima Jama evaluates the Court of Appeal’s ruling in Rex v Diabate [2025] EWCA Crim 283.

Introduction

The ruling by the Court of Appeal in Diabate serves as a reminder of the essential role that legal representation plays in criminal cases, as well as the risks that emerge when judicial pressure compromises a defendant’s autonomy. This case reveals the unlawful actions in the Crown Court’s method of sentencing a defendant without representation and underscores how judicial impatience may result in violations of statutory safeguards intended to uphold fairness in legal proceedings.

Background

The defendant, aged 30 at the time of the offence, was involved in a road traffic incident in October 2023 where his driving was characterised by the complainant as resembling “driving a bumper car.” What began as a minor collision escalated. CCTV footage captured the incident. As the complainant attempted to photograph the defendant’s number plate and damage, the defendant “got out of the car and went up very close to Mr Ahmed in his face. He then grabbed hold of Mr Ahmed by the neck and tried to pull Mr Ahmed to the floor.” The complainant’s head struck the wheel rim of the defendant’s car “with some force,” resulting in “an eight centimetre curving cut extending from the top right side of his forehead through the right eyebrow. The cut was so deep as to leave the skull visible.” The physical injury was only part of the harm. The complainant’s victim impact statement revealed the psychological impact, stating “the psychological effect on him as the cause of the break-up of his marriage” and that “the incident and its aftermath have had a devastating effect on his mental health.”

A Choice That Was No Choice At All

The manner in which the Recorder handled the sentencing hearing was troubling. When the defendant appeared unrepresented for sentence on 24 October 2024, over a year after the offence, the judge offered him legal representation. However, this offer came with a caveat that would fundamentally compromise the defendant’s ability to make a free choice. The exchange, recorded in the transcript, reveals the coercive nature of the judge’s approach. When the defendant initially accepted the offer of adjournment for legal representation, the Recorder stated: “Right, I am going to remand you in custody.” When the defendant questioned this decision, the judge’s response was telling: “It is a matter for you entirely. I rarely see such a serious head injury.” The judge then compounded the pressure by explaining that if the defendant chose adjournment, he would be remanded in custody until December, as the judge was “not sitting again until November.” Faced with this ultimatum, the defendant capitulated: “No I will accept your sentence today.”

Alongside this, the prosecution prepared a note in which they asserted that the offence fell in Category B3 of the sentencing guideline with a starting point of one year’s custody and a sentencing range of a high community order up to two years’ custody.  The Crown wrongly asserted that the appellant was entitled to a 25 per cent credit for his guilty plea.  In fact, having indicated a guilty plea on the Better Case Management form he was entitled to a one-third discount for his plea.  

The Legal Framework

The Court of Appeal’s analysis focused heavily on Section 226 of the Sentencing Act 2020, which provides crucial protections for unrepresented defendants. The section stipulates that courts “may not pass a sentence of imprisonment unless” the offender is legally represented, has failed to benefit from relevant representation, or has previously been sentenced to imprisonment.

“226Custodial sentence: restrictions in certain cases where offender not legally represented

(1)           This section applies where—

(a)        a magistrates’ court is dealing with an offender on summary conviction, or

(b)        the Crown Court is dealing with an offender—

(i)         on committal for sentence, or

(ii)        on conviction on indictment.

Offenders aged under 21

(2)           The court may not—

(a)        make a detention and training order,

(b)        pass a sentence of detention under section 250 (or 254) [F1, under section 252A] or under section 259 (offenders under 18),

(c)         pass a sentence of detention in a young offender institution, or

(d)        pass a sentence of custody for life (see sections 272 and 275),

unless the offender is legally represented in that court, or has failed, or is ineligible on financial grounds, to benefit from relevant representation (see subsections (7) and (8)).

Offenders aged 21 or over

(3)           The court may not pass a sentence of imprisonment unless—

(a)        the offender—

(i)         is legally represented in that court, or

(ii)        has failed, or is ineligible on financial grounds, to benefit from relevant representation (see subsections (7) and (8)), or

(b)        the offender has previously been sentenced to imprisonment by a court in any part of the United Kingdom.

(4)           For the purposes of subsection (3) a previous sentence of imprisonment which has been suspended and which has not taken effect under—

(a)        paragraph 8 of Schedule 16,

(b)        paragraph 8 of Schedule 12 to the Criminal Justice Act 2003,

(c)         section 119 of the Powers of Criminal Courts (Sentencing) Act 2000, or

(d)        section 19 of the Treatment of Offenders Act (Northern Ireland) 1968,

is to be disregarded.

(5)        For those purposes, “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence (and “sentenced to imprisonment” is to be read accordingly).

When a person is legally represented

(6)           For the purposes of this section an offender is legally represented in a court if the offender has the assistance of counsel or a solicitor to represent him or her in the proceedings in that court at some time after being found guilty and before being sentenced.

Relevant representation: failure or ineligibility to benefit

(7)           For the purposes of subsections (2) and (3), “relevant representation”, in relation to proceedings in a court, means representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (legal aid) for the purposes of the proceedings.

(8)           For those purposes, an offender has failed, or is ineligible on financial grounds, to benefit from relevant representation if—

(a)        the offender has refused or failed to apply for relevant representation, having—

(i)         been informed of the right to apply for it, and

(ii)        had the opportunity to do so,

(b)        the offender’s application for relevant representation was refused on financial grounds, or

(c)         relevant representation was made available to the offender but withdrawn—

(i)         because of the offender’s conduct, or

(ii)        on financial grounds.

Relevant representation is refused or withdrawn on financial grounds if it appears that the offender’s financial resources are such that the offender is not eligible for such representation.”

As the Court of Appeal noted, the defendant had not previously been sentenced to imprisonment, and crucially, he had not “failed to benefit from relevant representation” within the statutory meaning. Mr Justice Martin Spencer, delivering the court’s judgment, was unequivocal in his criticism: “In our judgment that threat had the effect that the appellant’s freedom to choose whether or not to be legally represented was overborne.” The court concluded that “the sentence was unlawful.”

“The appellant had not previously been sentenced to imprisonment.  In our judgment the appellant had not “failed to benefit from relevant representation” by reason of having “refused or failed to apply for relevant representation having been informed of the right to apply for it” within the meaning of subsection (8).  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.  This was particularly serious where the Recorder clearly had in mind an immediate custodial sentence and where the law, as represented by section 226, indicates a clear right to legal representation and thus a desirability that those sentenced to terms of imprisonment, particularly for the first time, should be legally represented.  In the result in our judgment the sentence was unlawful.”

The Consequences

The Court of Appeal identified multiple ways in which the lack of effective legal representation prejudiced the defendant’s case. Most significantly, a competent advocate would have identified that the defendant was entitled to a one-third discount for his guilty plea, not the 25 per cent discount actually applied. This error alone added several months to his sentence. More fundamentally, proper representation could have challenged the categorisation of the offence and made submissions on suspension. The court observed that “the appellant was certainly given a longer sentence than he should have been given and was deprived of the chance of arguing that such sentence as he was given should be significantly shorter and/or suspended.” The appellant’s counsel argued that “the effect of the judge’s approach was to deprive Mr Diabate of a meaningful choice as to whether to secure legal representation.” The Court of Appeal agreed, finding that the appellant was “effectively pressurised into accepting such a sentence without the benefit of effective legal representation.”

Beyond the procedural irregularities, the Court of Appeal identified substantive errors in the sentencing approach. The Recorder had categorised the offence as B2 under the sentencing guidelines, carrying a starting point of two years’ custody and a range of one to three years. However, he then imposed a sentence of 32 months before discount, towards the top of the range, which the Court of Appeal found was “wrong.” The original judge also failed to consider suspension, making “no reference to the imposition guideline or the factors relevant to suspension contained in it”. This omission was particularly significant given the defendant’s personal circumstances: he had no recent convictions, showed genuine remorse, and his fiancée had given birth to their first child just weeks before the sentencing hearing.

“Having then heard from the appellant in mitigation on his own behalf, the Recorder proceeded to sentence him.  The Recorder, erroneously in our view, suggested that the appellant had rammed Mr Ahmed’s head into the side of the vehicle at least twice.  He categorised the offence as B2 which carries a starting point of two years’ custody and a category range of one to three years’ custody.  The Recorder stated that after trial the sentence would have been one of 32 months’ imprisonment, that is towards the top of the category range, to which he applied a discount of 25 per cent, resulting in the sentence of two years’ imprisonment.  He made no reference to the imposition guideline or the factors relevant to suspension contained in it.  He dismissed the appellant with the words: “thank you and take him away.” “

The Remedy

In addressing these multiple failures, the Court of Appeal exercised its powers under Section 11 of the Criminal Appeal Act 1968 to sentence afresh. The court reduced the pre-discount sentence to 24 months, the starting point for the category, and applied the correct one-third discount for the guilty plea, resulting in a sentence of 16 months’ imprisonment. Crucially, the court also considered whether the sentence should be suspended. Despite acknowledging that the defendant had already served four months in custody, the court ultimately declined to suspend the sentence. The judges concluded that the offence, “committed in the circumstances in which it was—in public and arising out of a road rage incident—were such that it would not be appropriate for us to suspend the sentence. That would give a wholly wrong message to the public in relation to offences of this nature.”

Broader Implications

This case raises significant concerns regarding judicial behaviour and the challenges confronting the criminal justice system. The Court of Appeal’s critique was particularly severe, characterising the Recorder’s method as “an inappropriate way for a judge to handle a defendant who appeared in person.” The court stressed that “Clearly the matter should have been postponed to enable the appellant to obtain legal representation, his bail should have been extended, and the Recorder should not have reserved the matter for himself.”

Furthermore, the case underscores systemic problems within the criminal justice system. Pressures related to court listings and judicial workloads may incentivise the progression of cases involving unrepresented defendants instead of allowing for adjournments. Nevertheless, as this case illustrates, such expediency can result in unlawful sentences and successful appeals, ultimately generating additional work and eroding public trust in the system.

Conclusion

For legal practitioners, the case of Diabate serves as a poignant reminder of the critical role that strong advocacy plays in addressing procedural injustices. The successful appeal illustrates how meticulous examination of statutory safeguards and procedural stipulations can lead to the reversal of sentences. Furthermore, this case highlights the ongoing significance of established legal protections amidst the growing demands on court resources. Section 226 of the Sentencing Act 2020 was specifically enacted to avert the type of injustice witnessed in this instance, yet it necessitates diligent enforcement by the appellate courts.

Diabate exemplifies how judicial pressures can compromise essential fairness in criminal proceedings. Although the intervention by the Court of Appeal rectified the immediate wrong, the case serves as a warning regarding the vulnerability of procedural safeguards and the necessity of upholding stringent standards in criminal sentencing. The ruling conveys a clear message to judges that offers of legal representation must be authentic and devoid of coercive influences. As the Court of Appeal noted, section 226 of the Sentencing Act 2020 “indicates a clear right to legal representation and thus a desirability that those sentenced to terms of imprisonment, particularly for the first time, should be legally represented”. In a time marked by increasing strains on court resources and a rising number of unrepresented defendants, this case serves as a timely reminder that efficiency should never compromise fundamental fairness. The right to legal representation is not merely a procedural formality but a foundational element of a just criminal justice system that must be safeguarded, especially when it may be deemed inconvenient.