R v Lowe: No Automatic Anonymity for Modern Slavery Claimants and No “Second Bite” After a Guilty Plea Absent a Proven, Trial-Ready Section 45 Defence

1. Introduction

R v Lowe ([2025] EWCA Crim 1673) is a decision of the Court of Appeal (Criminal Division) concerning: (i) an exceptionally late application (747 days) for leave to appeal conviction following guilty pleas to two offences of conspiracy to supply drugs; (ii) an application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 aimed at establishing the applicant as a victim of modern slavery/trafficking and thus entitled to the section 45 Modern Slavery Act 2015 statutory defence; and (iii) an application for an anonymity/withholding and reporting restriction order under section 11 of the Contempt of Court Act 1981.

The applicant’s central contention was that he was a victim of “county lines” exploitation and that (a) had the Crown Prosecution Service applied its policy for suspects who may be victims of trafficking or slavery, it would (or might well) not have prosecuted, rendering the convictions unsafe; and/or (b) he was inadequately advised about the section 45 defence and pleaded guilty when that defence would probably have succeeded.

The case is notable for the Court’s treatment of (1) the limits of challenging convictions after guilty pleas where the defendant declined opportunities to vacate pleas despite being advised, (2) the evidential and forensic difficulties of relying on administrative NRM findings in appellate proceedings (especially where the applicant is absent), and (3) the strict approach to anonymity, grounded in open justice and procedural compliance.

2. Summary of the Judgment

  • Leave to appeal conviction refused. The Court was “unpersuaded” that the application had merit and held the guilty pleas were properly entered.
  • Fresh evidence application refused. The application to adduce further material about modern slavery status failed, particularly given the applicant’s non-attendance and consequent inability to test the account.
  • Extension of time refused. The application depended on the merits of the appeal; once the appeal failed, the extension necessarily failed.
  • Anonymity/reporting restrictions refused. There is no automatic anonymity for victims (or claimed victims) of trafficking/modern slavery; Criminal Procedure Rule 6.4 was not complied with; and no “clear and cogent evidence” justified derogation from open justice.

3. Analysis

3.1 Precedents Cited

R v Baniulyte [2025] EWCA Crim 1205

The Court relied expressly on R v Baniulyte [2025] EWCA Crim 1205 (at [88]) when refusing the anonymity/withholding application. The quotation adopted encapsulates a stringent open justice test: restrictions are “exceptional”, must be justified by “strict necessity”, supported by “clear and cogent evidence”, pursuing a legitimate aim, and be necessary and proportionate.

How it influenced the decision: Lowe applies Baniulyte as the controlling authority for anonymity/reporting restrictions in this context. Even where modern slavery is asserted (and even where an NRM conclusive grounds decision exists), the Court treated open justice as the default and insisted on a properly evidenced, procedurally compliant application demonstrating necessity and proportionality.

3.2 Legal Reasoning

(A) Ground 1: CPS modern slavery policy not applied—does that make the convictions unsafe?

The respondent accepted (in the Respondent’s Notice) that the CPS did not apply its policy on suspects who may be victims of trafficking or slavery. However, the Court treated that failure as not determinative of safety.

Three features were central:

  1. Forensic weakness of the NRM reasoning in an appellate setting: the Court noted that the “minute of the conclusive grounds decision” largely recorded the applicant’s account “as accepted” and was “wholly dependent on the veracity” of that account. Because the applicant was absent, the account “cannot be tested by this court.” The Court thereby signalled that NRM outcomes are not, without more, a substitute for trial-level forensic scrutiny when the issue is the safety of conviction.
  2. Post hoc CPS review did not support non-prosecution: counsel and a specialist prosecutor in the CPS Appeals and Review Unit (uninvolved below) reviewed the case afresh and maintained that it would have been prosecuted even with a conclusive grounds decision—challenging both credibility and the evidential foundation for trafficking/slavery and/or duress/section 45.
  3. Public interest in prosecution: the Court accepted that prosecution would, in any event, be in the public interest given the seriousness and repetition of class A drug supply.

Result: even conceding a policy failure at the time, the Court was not persuaded that proper policy application would have prevented prosecution or made the convictions unsafe.

(B) Ground 2: Alleged inadequate advice and the limits of raising a “lost defence” after a guilty plea

The Court emphasised that an applicant does not have “an automatic right to advance on appeal a defence that could have been advanced at first instance.” The reasoning was anchored in the applicant’s own later statement confirming that: (i) he had been advised he could apply to vacate the guilty pleas after the reasonable grounds decision and again after the conclusive grounds decision; and (ii) he chose not to do so for pragmatic reasons (fear of a jury trial, remand, desire for release).

The Court treated these reasons as demonstrating a free and informed decision, not one vitiated by deficient advice. The absence of contemporaneous written notes from the solicitors did not displace the applicant’s own acknowledgment that the option to vacate pleas was explained.

Key point of principle: where a defendant is aware of the ability to vacate pleas and elects not to, appellate reliance on a statutory defence (here section 45) faces a high hurdle—particularly where the record supports voluntariness and strategic choice.

(C) Fresh evidence and the applicant’s non-attendance

The application under section 23 Criminal Appeal Act 1968 was refused. The Court’s reasoning was practical and forensic: the case advanced depended substantially on the credibility of the applicant’s narrative, and the applicant’s absence meant the narrative could not be tested. In that context, the Court declined to reopen the convictions via fresh evidence.

(D) Anonymity and reporting restrictions: strict necessity, procedural compliance, and no “automatic” protection

The Court gave three reasons for refusal:

  1. No automatic anonymity for victims of trafficking or modern slavery.
  2. Criminal Procedure Rule 6.4 non-compliance: the applicant did not specify terms/length of the order, the legal power relied upon, or why the order was necessary in the proposed terms.
  3. Open justice history: there were no reporting restrictions in the Crown Court proceedings.

Applying R v Baniulyte [2025] EWCA Crim 1205, the Court found no “clear and cogent evidence” justifying departure from open justice, and therefore refused to withhold the applicant’s name.

3.3 Impact

  • Modern slavery claims post-conviction: Lowe underscores that an NRM conclusive grounds decision will not automatically translate into an unsafe conviction finding—especially where the appellate court cannot forensically test the account and where prosecutorial review maintains the public interest and evidential sufficiency for prosecution.
  • Finality of guilty pleas: the decision reinforces the strong weight given to guilty pleas, particularly where the defendant was advised of the possibility of vacating pleas but consciously chose not to do so.
  • CPS policy failures: even an accepted failure to apply CPS guidance does not, without demonstrated consequence (e.g., a realistic prospect that prosecution would not have been brought/continued), establish that convictions are unsafe.
  • Anonymity applications: Lowe (via Baniulyte) signals a demanding evidential threshold and strict procedural expectations under CrimPR 6.4; it also clarifies—expressly—that there is no presumption of anonymity for trafficking/modern slavery victims in criminal appeals.

4. Complex Concepts Simplified

NRM “reasonable grounds” and “conclusive grounds” decisions
Administrative decisions within the National Referral Mechanism assessing whether someone is (first) reasonably suspected and (later) conclusively determined to be a victim of trafficking/modern slavery. Lowe treats these decisions as potentially relevant but not conclusive on criminal liability or on the safety of a conviction, particularly where the underlying account is untested.
Section 45 Modern Slavery Act 2015 defence
A statutory defence for victims compelled to commit certain offences as a direct consequence of slavery or relevant exploitation, subject to conditions and exclusions. Lowe illustrates that invoking section 45 after a guilty plea will require more than pointing to an NRM outcome; the court will consider whether a defence is truly evidenced and whether the plea was freely entered with knowledge of options.
Vacating a guilty plea
A defendant can, in certain circumstances, apply in the Crown Court to withdraw (vacate) a guilty plea before sentence (and sometimes in limited contexts thereafter). Lowe treats the applicant’s repeated refusal to pursue that route—despite being advised—as powerful evidence that the pleas were informed and voluntary.
Section 23 Criminal Appeal Act 1968 (fresh evidence)
A mechanism allowing the Court of Appeal to receive evidence not presented at trial/plea proceedings, but only where it is in the interests of justice. In Lowe, the inability to test the applicant’s account (due to non-attendance) weighed heavily against admitting further evidence to unsettle the conviction.
Open justice and section 11 Contempt of Court Act 1981
Open justice means court proceedings and identities are normally public. Section 11 can restrict reporting of names or matters withheld from the public in court. Lowe reaffirms that such restrictions are exceptional and require strict necessity supported by clear evidence.

5. Conclusion

R v Lowe provides a clear appellate message in three connected areas. First, a conceded failure by the CPS to apply modern slavery suspect guidance does not, without demonstrated material consequence, render convictions unsafe—particularly where a specialist review maintains that prosecution would have proceeded and where the factual foundation (including credibility) is untested. Second, the Court will be slow to entertain a section 45 defence after guilty pleas where the defendant knew he could seek to vacate pleas and chose not to. Third, anonymity is neither automatic nor lightly granted for modern slavery claimants: open justice prevails absent CrimPR-compliant applications and “clear and cogent evidence” of strict necessity, as reinforced by R v Baniulyte [2025] EWCA Crim 1205.