Lowe, R. v

Factual and Procedural Background

Judge Norton heard an application by the Appellant for an extension of time of 747 days to seek leave to appeal convictions for two offences of conspiracy to supply class A drugs, following guilty pleas entered on 24 November 2021 in the Crown Court. The Appellant contended he was a victim of modern slavery and entitled to rely on the statutory defence in section 45 of the Modern Slavery Act 2015. He also sought permission under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence about his modern slavery status and an anonymity (withholding and reporting restriction) order under section 11 of the Contempt of Court Act 1981.

The Appellant was born in The Country and has lived in The City since childhood; indefinite leave to remain was granted in December 2016. He had previous convictions and a sentence in 2017. In May 2020 he was intercepted, searched and found to be carrying packages of crack cocaine and heroin; his mobile phones showed links to a drugs line. He was interviewed but made no comment. He later pleaded guilty to offences committed in 2020 and to the two offences now under appeal, pleading guilty on 24 November 2021 and sentenced on 9 May 2023 to concurrent terms of 12 months' imprisonment on each count.

Two law firms were involved: Company A (carrying out immigration work) asked Company B (criminal representatives) to note a National Referral Mechanism referral and communicated reasonable and conclusive grounds decisions. Company C (the prosecution) was notified but initially did not apply its policy for suspects who may be victims of trafficking or slavery; the Respondent later accepted that the policy had not been applied at the time. The Appellant declined multiple invitations to vacate his pleas after reasonable and conclusive grounds decisions were made. The Appellant did not attend the court hearing on this application and his legal representatives subsequently sought to be taken off the record; representation was revoked and the court was unable to contact him.

Legal Issues Presented

1. Whether the Appellant is entitled to leave to appeal his convictions on the basis that he was a victim of modern slavery and thus had a statutory defence under section 45 of the Modern Slavery Act 2015.
2. Whether fresh evidence relating to the Appellant's status as a victim of modern slavery should be admitted under section 23 of the Criminal Appeal Act 1968 and leave granted to rely on it out of time.
3. Whether an anonymity order (withholding order and reporting restriction) should be made under section 11 of the Contempt of Court Act 1981.

Arguments of the Parties

Appellant's Arguments

• The prosecution failed to apply guidance concerning suspects who may be victims of trafficking or slavery; had they done so the Appellant would have been identified as a victim and would not, or might not, have been prosecuted, rendering his convictions unsafe.
• The Appellant's criminal advisers did not adequately advise him of the statutory defence under section 45; he pleaded guilty when that defence would probably have succeeded.
• The Appellant sought to admit fresh evidence under section 23 Criminal Appeal Act 1968 regarding modern slavery status and sought anonymity under section 11 Contempt of Court Act 1981.

Respondent's Arguments

• The Respondent accepted that its policy was not applied at the time but, on reconsideration by counsel and a specialist prosecutor in Company C's Appeals and Review Unit (who were not involved at first instance), concluded the prosecution would have continued notwithstanding a conclusive grounds decision.
• The Respondent did not consider there was reason to believe the Appellant was a victim of trafficking or slavery or that his account was credible; alternatively, there was no clear evidence of duress or of a section 45 defence.
• On anonymity, the Respondent pointed to non-compliance with Criminal Procedure Rule 6.4 and the absence of any prior reporting restrictions in the Crown Court.

Table of Precedents Cited

Court's Reasoning and Analysis

The court reviewed the conclusive grounds decision and the written material submitted in support of the application. It noted the conclusive grounds minute largely set out the Appellant's account as accepted and observed that the decision depended on the veracity of that account, which had not been forensically tested and could not be tested in the Appellant's absence.

The court took into account the Respondent's acceptance that its policy had not been applied initially but also the Respondent's further view, after internal review, that a prosecution would have proceeded notwithstanding a conclusive grounds finding, given the seriousness and repetitions of the offences and the Respondent's assessment that there was not credible evidence of trafficking, slavery, duress or a s45 defence.

On the point of legal advice, the court observed that an appellant does not have an automatic right to raise on appeal a defence that could have been advanced at first instance. The Appellant's own statement (dated 18 December 2023) confirmed he had been advised of the right to apply to vacate his pleas but chose not to because he wished to avoid a jury trial and extended remand and wanted release. The court found no evidence that this was anything other than a free and informed decision.

Given those findings, the court concluded the guilty pleas were properly entered. The application to adduce fresh evidence failed both because of lack of merit and because the Appellant failed to attend to give evidence in support. The application for extension of time was dependent on the merits and was therefore refused. The anonymity application was refused because there was no automatic right to anonymity, Criminal Procedure Rule 6.4 had not been complied with, there had been no prior Crown Court reporting restrictions, and there was no "clear and cogent evidence" to justify restriction under the principle in R v Baniulyte.

Holding and Implications

All applications refused.

Holding: The court refused the application for leave to appeal the convictions, refused the application to adduce fresh evidence under section 23 Criminal Appeal Act 1968, refused the application for an extension of time, and refused the application for an anonymity (withholding and reporting restriction) order under section 11 Contempt of Court Act 1981.

Implications: The Appellant's convictions and sentences stand; no fresh evidence is admitted and no extension of time is granted. The court declined to create reporting restrictions and the Appellant's name may be reported. The opinion does not purport to establish a novel legal precedent beyond applying existing principles (including R v Baniulyte) to the facts of this case.