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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bakhari, R. v [2025] EWCA Crim 283 (04 March 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/283.html Cite as: [2025] EWCA Crim 283

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT INNER LONDON
RECORDER FEATHERBY KC
CP No: 01LX1486623

		Royal Courts of Justice Strand London WC2A 2LL
		4 March 2025

MR JUSTICE MARTIN SPENCER:

1. The Registrar of Criminal Appeals has referred to the full court Mr Diabate's application for an extension of time for leave to appeal against the sentence of two years' imprisonment imposed by Mr Recorder Featherby KC sitting in the Crown Court at Inner London on 24 October 2024 for an offence of unlawful wounding committed on 27 October 2023. We grant the extension of time and we grant leave to appeal.
2. The appellant was born on 3 July 1993 and is aged 31. He was 30 at the date of the offence.
3. The circumstances of the offence were as follows. At 6.00 pm on 27 October 2023 the appellant was driving his vehicle on Denmark Hill, London SE5 when he became involved in a road traffic incident. The details of that incident are not directly relevant but appear to have involved an overtaking manoeuvre by the appellant of the victim Mr Ahmed's van at a set of traffic lights on Denmark Hill, whereby the two vehicles came into contact with each other on two or three occasions. Mr Ahmed described the appellant's driving as if he were driving a bumper car.
4. Both vehicles pulled up to the side of the road and the appellant walked up to Mr Ahmed's van in an aggressive manner. Mr Ahmed said he could not understand what the appellant was saying and immediately thought that the appellant wanted to fight. Mr Ahmed got out of the van and said they needed to sort it out and go through insurance and he wanted to exchange details. The appellant responded "whatever" and went back to his car in order to drive off.
5. What then happened is caught on CCTV. Mr Ahmed with his phone in his hand walked to the driver's side of the appellant's car and some words were exchanged. The appellant started to drive off but Mr Ahmed had his phone out to take a picture of the number plate and the damage. The appellant 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. There was a scuffle and the two men went sideways into the road and Mr Ahmed's head hit the wheel rim of the appellant's car with some force. He sustained 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.
6. Mr Ahmed was able to get up and remonstrate with the appellant who was himself highly agitated and remonstrating back. The appellant then got back into his car and drove off.
7. Officers attended Mr Diabate's home address at 6.55 pm the same evening and spoke to his mother, advising that Mr Diabate should attend his local police station. After telephoning the police stating that he wished to hand himself in, Mr Diabate went to Peckham Police Station where he was arrested at 7.14 pm. He was interviewed but responded no comment to all questions asked.
8. Mr Ahmed attended the emergency department at King's College Hospital and was discharged the next day for follow-up by the oral and maxillofacial surgery team with a view to the wound being closed. Although this was done, Mr Ahmed has been left with an unsightly scar and he blames the psychological effect on him as the cause of the break-up of his marriage. He says that the incident and its aftermath have had a devastating effect on his mental health.
9. The appellant was charged with three offences: wounding with intent, unlawful wounding and dangerous driving. He appeared before the Croydon Magistrates' Court on 3 August 2024 and wounding with intent being an indictable only offence he was committed to the Crown Court. The Better Case Management form shows that he indicated a plea of guilty to the offence of unlawful wounding and not guilty to the offences of wounding with intent and dangerous driving. He was granted conditional bail. He appeared, unrepresented, before His Honour Judge Kelleher at the Crown Court on 30 August 2024 when he pleaded guilty to unlawful wounding and not guilty to wounding with intent and dangerous driving, in accordance with the indication that had been given at the Magistrates' Court.
10. The prosecution offered no evidence on the charge of wounding with intent in respect of which a not guilty verdict was entered and the charge of dangerous driving was ordered to lie on the file.
11. The judge recorded a note on the Digital Case System to the effect that the appellant was unrepresented by choice, that he had been represented by a duty solicitor below but did not wish to instruct them thereafter, that he clearly understood the charges on the indictment and had seen the CCTV of the incident.
12. Sentence was adjourned and a pre-sentence report was ordered. A further note records that the judge warned the appellant that a custodial sentence could be imposed and that he should consider obtaining representation. The appellant's conditional bail was renewed.
13. On 24 October 2024 the appellant appeared before Recorder Featherby KC for sentence. He was still unrepresented. The prosecution prepared a sentencing 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. They 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.
14. The Recorder, having observed the CCTV footage and having had Mr Ahmed's victim personal statement read to him, indicated to the prosecution that in his view the category was B2 not B3 because the injury was "grave". He read a letter from the appellant and the appellant's fiancée. Although the appellant had previous convictions these had predominantly been in relation to drugs offences when he was still a juvenile. His most recent conviction had been for possessing cannabis back in 2013. There was then this exchange:

"RECORDER FEATHERBY: ... Are you sure you do not want to be legally represented?

THE DEFENDANT: Would it be a bit too late now?

RECORDER FEATHERBY: No, I can adjourn it for representation. This is a very serious matter.

THE DEFENDANT: [Inaudible]. The reason I decided to self-represent was I thought I might be better being able to address the Court myself. However, as Your Honour is much more experience than [inaudible] if you advise me to adjourn it to get-

RECORDER FEATHERBY: I am not advising anything at all. I am just giving you one more opportunity if you want to seek legal advice, to seek it. A custodial sentence is highly likely here.

THE DEFENDANT: I'll do that, yes.

RECORDER FEATHERBY: You will do what sorry?

THE DEFENDANT: I will take that opportunity please.

RECORDER FEATHERBY: To adjourn it?

THE DEFENDANT: Yes.

RECORDER FEATHERBY: Right, I am going to remand you in custody.

THE DEFENDANT: You are going to remand me?

RECORDER FEATHERBY: Yes.

THE DEFENDANT: If you're going to remand me in custody today-

RECORDER FEATHERBY: It is a matter for you entirely. I rarely see such a serious head injury.

THE DEFENDANT: I guess it's a bit too late now. I [inaudible] injury that-

RECORDER FEATHERBY: I know all that. We are just dealing whether you want this to be adjourned for legal representation at the moment. If you do want to adjourn I am going to remand you in custody.

THE DEFENDANT: No, I want to - if I am going to go custody anyway, I will want Your Honour to take [inaudible]-

RECORDER FEATHERBY: I have not made a concluded view about the eventual sentence but if you want to adjourn today I will remand you in custody until I can deal with this matter which will be, I can tell you, I am not sitting again until November. I will give you the exact dates. I am next sitting for the first two weeks of December.

THE DEFENDANT: I will accept your -

RECORDER FEATHERBY: Do you want me to sentence you today or do you want me to sentence you in December?

THE DEFENDANT: No I will accept your sentence today.

RECORDER FEATHERBY: You will accept it today. Very well... "

15. 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."
16. On this appeal the appellant has been represented by Miss Daniella Waddoup of counsel for whose written and oral submissions we are very grateful.
17. She submits that the sentence was too long and should in any event have been suspended. She also submits that there were errors in the sentencing process, contributed to by the Recorder's approach to the question of legal representation. Referring to the exchange reproduced above, Miss Waddoup submits that:

"The effect of the judge's approach was to deprive Mr Diabate of a meaningful choice as to whether to secure legal representation. Mr Diabate was given to understand, and clearly did understand, that adjourning for legal representation would make no difference at all. That this was the case was clear from the judge's clear statement, without first having heard from Mr Diabate, that a custodial sentence was 'highly likely'."

18. She submits that for the reasons set out in her submissions on the appropriate substantive sentence, an immediate custodial sentence was by no means an inevitability and the appellant was effectively pressurised into accepting such a sentence without the benefit of effective legal representation.
19. We agree. 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. Despite saying, "I have not made a concluded view about the eventual sentence", his decision to remand the appellant in custody showed that he had in effect pre-judged the matter and in particular the issue of whether any sentence should be suspended, to which he appears to have given no consideration given the complete lack of any reference to the imposition guideline and the factors mentioned in it in the Recorder's sentencing remarks.
20. The Recorder was right to make the appellant a further final offer to be represented, particularly when he had an immediate custodial sentence in mind. But he accompanied that offer with a threat which was unjustified and unfair leading, as we shall come to, to a breach of the Sentencing Act and an unlawful sentence. 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.
21. Section 226 of the Sentencing Act 2020 provides:

"Custodial 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.

...

(2) 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.

...

(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."

22. 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.
23. We consider that the appellant's lack of effective legal representation tainted the whole proceedings. An example is that had the appellant been represented his advocate might well have picked up the fact that he was entitled to a one-third discount for his plea, not 25 per cent, as well as being able to make proper representations on the question of suspension and the appropriate categorisation of the offence for the purpose of the sentencing guideline. The result was 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.
24. By section 11 of the Criminal Appeal Act 1968 it is provided:

"(3) On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—

(a) quash any sentence or order which is the subject of the appeal; and

(b) in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below."

25. In Howden [2007] 1 Cr.App.R (S) 31 it was held that the opening words of section 11(3) are apt to cover the substitution of a lawful sentence, including of the same length, for a sentence that was unlawful on account only of some procedural impropriety such as failure to observe the restriction on the imposition of a custodial sentence on an unrepresented defendant. Hence, it is not appropriate for us to remit the matter to the Crown Court: we have the power to sentence this appellant afresh and shall do so.
26. In relation to the sentence itself Miss Waddoup submitted that the Recorder erred, such that a sentence resulted which was manifestly excessive, although, in view of the forgoing, she no longer needs to establish this as we are sentencing afresh.
27. Informed of that, she has made full submissions as if she were mitigating before a court of first instance. She submits that the starting point was too high because, so far as harm is concerned this was not a grave injury within the context of offences of wounding and causing grievous bodily harm and his culpability should have been assessed as being on the cusp of categories B and C. She submits that the Recorder mischaracterised the circumstances leading to Mr Ahmed sustaining his injuries, both in relation to whether his head was rammed into the vehicle and whether it happened once or twice.
28. She has repeated those submissions to us in mitigation and she has drawn to our attention the letter written by the appellant to the court below in support of those submissions. Furthermore, she submits that the Recorder in reaching the provisional sentence that he did before discount for plea, gave too much weight to the aggravating factors and too little weight to mitigation. Again, she has repeated those submissions to us as if we were a court at first instance. She submits that the Recorder should not have moved towards the top of the sentencing range before giving the discount for plea, that he should have been in a different category or if within the same category he should have moved down towards the bottom of the sentencing range.
29. In our judgment the injury in this case, taking into account both the physical and psychological effect on Mr Ahmed, does in fact justify categorising it within Category 2. Category 2 includes the following: Grave injury; Offence results in a permanent irreversible injury or condition not falling within Category 1.
30. It is agreed that the injury in this case does not fall within Category 1. However, whether the injury is described as "grave", as the Recorder clearly thought, or resulted in a permanent irreversible injury or condition, which is the alternative way of categorising the injury, we are of the view that the injury falls within Category 2. Pressed on that matter, Miss Waddoup did not argue strongly to the contrary.
31. That should not, though, undermine the fact that, particularly given the prosecution had initially categorised the injury as B3, Mr Diabate should have had the opportunity for his counsel before the learned Recorder to argue to the contrary that it was not B2. Thus the Recorder's unequivocal statement that it was B2 served only to emphasise how important it was for the appellant to have proper representation in order for the matter to be properly argued by reference to the authorities, including those to which Miss Waddoup has drawn our attention.
32. The starting point for a B2 offence is, as the Recorder recognised, two years' custody. We consider that the Recorder was wrong to light upon a sentence of 32 months' custody after taking into account the aggravating and mitigating circumstances.
33. The aggravating circumstances were that this offence was committed on a busy public street with members of the public present in circumstances of a road rage injury and where the appellant, despite having recognised, as he has admitted in the letter to the court, that he had caused a very serious injury to Mr Ahmed, simply left the scene without leaving his details.
34. However, there are also in our view balancing mitigating factors. These include the appellant's clear remorse, the fact that he has recognised that the problems which led him to commit this offence need to be addressed, including through thinking skills courses and the like. There are the matters mentioned in his letter to the court and those of his fiancée and the fact that his fiancée gave birth to their first child just two or three weeks before the sentencing hearing in the court below. Miss Waddoup relies upon the fact that he has no recent convictions and those convictions that he does have are for predominantly drugs offences committed when he was still a juvenile. She asks the court to give credit for the fact that for a period of over 10 years he has been out of trouble and has led a productive and law-abiding life. She submits with force that the offence was out of character and that the appellant is committed to working on the problems of emotional regulation and the like which led to him committing this offence.
35. We consider that taking all those matters into account, the sentence before discount for plea should have been, and should be, back to the starting point in the category, that is 24 months. Mr Diabate is then entitled to a one-third deduction as credit for his plea of guilty and that leads to a sentence of 16 months' imprisonment.
36. Finally, we consider the question of suspension. Miss Waddoup has argued, again with force, that the sentence should have been suspended; alternatively that we should take the view that it should be suspended. She points out that Mr Diabate has now been in prison for four months and so has, to an extent, served punishment, the need for appropriate punishment being within the factors in the imposition guideline which militate against suspension of sentence. No other factors militating against suspension of sentence apply.
37. So far as the factors in favour of suspension are concerned, she says that immediate custody has had, and will continue to have, an effect on others (namely his partner and his child), that there are good prospects of rehabilitation and she submits that in the unusual circumstances which apply in this case this court should take the view that the sentence can and should be suspended.
38. Attracted as we were by those submissions, we take the view that this 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. The injury caused to Mr Ahmed was indeed severe and within the context of wounding within section 20 of the Offences Against the Person Act 1861 this in was in our view a serious offence, so serious that in the end we consider that the Recorder was right to consider that it could not be suspended.
39. We therefore quash the sentence of two years' imprisonment and we impose in its place a sentence of 16 months' imprisonment. To that extent this appeal is allowed.