R v Cadonius Lowe [2025] EWCA Crim 1673

[2025] EWCA Crim 1673
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate Tuesday, 2 December 2025
Strand
London
WC2A 2LL
Before
LORD JUSTICE JEREMY BAKERMS JUSTICE NORTON DBEHER HONOUR JUDGE TAYTON KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
CADONIUS LOWE__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________NON-COUNSEL APPLICATION_________J U D G M E N T
[1]MS JUSTICE NORTON: This is an application for an extension of time of 747 days in which to seek leave to appeal conviction for two offences of conspiracy to supply drugs following the applicant's guilty pleas on 24 November 2021 in the Crown Court at Swansea. The basis of the application to appeal is that the applicant is a victim of modern slavery and was therefore entitled to rely on the statutory defence under section 45 of the Modern Slavery Act 2015. It is submitted that:(1) The prosecution failed to apply their guidance on suspects in a criminal case who might be victims of trafficking or slavery. Had they done so they would have identified the applicant as a victim of trafficking and would not, or might well not have, prosecuted him. His convictions are accordingly unsafe.(2) The applicant was not adequately advised by his legal representatives then acting for him in the criminal proceedings that he had a statutory defence under section 45 of the Modern Slavery Act 2015 and pleaded guilty when that defence would probably have succeeded.[2]In support of his application the applicant seeks leave pursuant to section 23 of the Criminal Appeal Act 1968 to introduce fresh evidence relating to his status as a victim of modern slavery. In addition, there is an application for an anonymity order under section 11 of the Contempt of Court Act 1981 (strictly a withholding order and reporting restriction).[3]The applications have been referred to the full court by the Registrar. The applications were lodged in January 2024. However we understand that since January 2025 the applicant's legal representatives have struggled to make contact with the applicant and following repeated but unsuccessful efforts to reestablish contact, both counsel and solicitors formally requested to be taken off-the-record. The representation order granted on referral was consequently revoked on 12 November 2025.[4]This court too has been unable to contact the applicant who has not responded to communications from the court sent to his last known address advising him of the withdrawal of his legal representatives and inviting him to exercise an option either to instruct fresh legal representatives or to abandon his application. Neither has he attended this hearing.[5]In the circumstances, although the applicant has not formally abandoned his application to appeal we can deal with the applications relatively shortly. We will deal with the merits of the appeal first and the applications for an extension of time and for a withholding order and reporting restrictions at the conclusion of this judgment. The facts[6]The applicant was born in Jamaica but has lived in this country since he was a young child. Indefinite leave to remain was granted in December 2016.[7]In March 2017 the applicant committed offences relating to possession of class A drugs and a bladed article, leading to a 28 month sentence imposed in October 2017.[8]Between February and May 2020 a drugs line known as the "Max line" was being operated in South Wales by one of the applicant's co-defendants who lived in London but travelled to Swansea to operate the line.[9]On 5 May 2020 the applicant travelled to Swansea from Birmingham. He was observed by plain clothes police officers who intercepted the applicant who was searched under section 23 of the Misuse of Drugs Act 1971 initially on the street, which led to the seizure of two mobile telephones, and thereafter at a police station where an intimate search took place. Whilst the intimate search was being undertaken the applicant sought unsuccessfully to swallow a package that had been stored in his boxer shorts. That package contained 44 wraps of crack cocaine weighing 7.08 grams with a purity of 83 per cent and 22 wraps of heroin weighing 3.99 grams and with a purity of 55 per cent.[10]The applicant's mobile phones were downloaded which revealed extensive contact between the applicant, his co-defendant and the "Max line".[11]On 10 May 2020 the applicant was interviewed under caution. Notes made by the applicant's then representative prior to him being interviewed record the applicant as stating:
"I was forced to sell drugs for another. I did not want to do it."
However when interviewed he made no comment in response to the questions he was asked. The applicant was subsequently released under investigation. Chronology of proceedings[12]Following his release under investigation the applicant continued to engage in the supply of controlled drugs. On 19~August 2020 he pleaded guilty to two offences of being concerned in the supply of controlled drugs of class A, both committed between 30 June and 18 August 2020, and one offence of assaulting an emergency worker committed on 17 August 2020. He was subsequently sentenced at the Crown Court at Worcester to five years and one month's imprisonment on 7 December 2020.[13]On 27 September 2021 the applicant was charged with the two offences the subject of this application and in respect of which he pleaded guilty on 24 November 2021. Sentence was adjourned to await the outcome of the trial of his co-accused. Following a number of delays he was finally sentenced on 9 May 2023 to 12 months' imprisonment concurrent on each count.[14]On 18 November 2021 TNA Solicitors, who were representing the applicant in respect of immigration matters, contacted DJG Solicitors who were representing the applicant in his criminal case to inform the latter that they had requested the Home Office to make an NRM referral as, in their view, the applicant was vulnerable and had modern slavery indicators (county lines).[15]In his responses to the McCook questions, the solicitor from DJG stated that although he no longer possessed any notes, he had a "recollection" that before the plea and trial preparation hearing on 24 November 2021 he had discussed with the applicant the fact of the referral and the potential consequences to the criminal proceedings if a positive conclusion was reached.,but that the applicant confirmed that he wanted to plead guilty, nevertheless.[16]On 1 December 2021 a reasonable grounds decision was made. This was communicated to DJG Solicitors by TNA on 6 December. DJG in turn notified the Crown Prosecution Service.[17]There is no recorded response from the CPS to this communication although, in his responses to McCook questions, DJG again referred to his recollections that in a discussion in January 2022 the reviewing lawyer for the CPS had informed him that a prosecution would continue irrespective of any conclusive grounds decision.[18]Whatever consideration, if any, was given by the CPS to the ongoing criminal proceedings at the relevant time, it is now accepted by the respondent in the Respondent's Notice that the Crown Prosecution Service did not apply its policy in respect of suspects who may be victims of trafficking or slavery in this case.[19]Following the reasonable grounds decision on 17 December 2021, DJG held a conference with the applicant in which the solicitor advised him that he had a right to apply to vacate his guilty pleas. However, the applicant did not wish to do so and maintained his original instructions.[20]In November 2022 a conclusive grounds decision was made. The applicant was further advised before his sentence that he could apply to vacate his guilty pleas. Again he declined to do so.[21]Although DJG Solicitors have been unable to provide any written note of such advice being given, or of the applicant's response to it, it is relevant and important to note that the applicant has confirmed in a statement dated 18 December 2023 prepared for the purposes of this application to appeal, that he was so advised but that he did not wish to vacate his pleas as he did not want to be put before the jury, was scared of having to remain on remand after his sentence had finished, he had been in prison for a long time and he wanted to be released. Discussion and conclusion[22]Notwithstanding the absence of the applicant, we have considered all the material before us with care. We note the reasoning in the conclusive grounds decision, have considered the very lengthy and detailed perfected grounds and the material provided in support and have derived assistance from the carefully considered response on behalf of the respondents.[23]In respect of the first ground, that had the prosecution applied the appropriate guidance they would have identified the applicant as a victim of trafficking and would or might well not have prosecuted him, we take into account in particular the fact that:(a) The minute of the conclusive grounds decision does little more than set out the applicant's account as accepted. The decision is wholly dependent on the veracity of the applicant's account which had never been forensically tested and which, in the absence of the applicant, cannot be tested by this court.(b) The respondent has confirmed that having applied its policy to this case and considered it afresh, through counsel and a specialist prosecutor in the CPS Appeals and Review Unit, neither of whom were involved in the proceedings at first instance, the respondent considers that on a proper application of its policy the case is one which would have been prosecuted notwithstanding a conclusive grounds decision. The respondent does not consider that there is reason to believe either that the applicant is a victim of trafficking or slavery or that the applicant's account is credible. In the alternative, that there is no clear evidence of duress or of a section 45 defence.(c) A prosecution would in any event be in the public interest given the seriousness of this repeated offence of supplying class A drugs.[24]In respect of the second ground, as is noted by the respondent, an applicant does not have an automatic right to advance on appeal a defence that could have been advanced at first instance. Whether and to what extent there were any deficiencies in the advice provided to the applicant by his then legal representatives about the availability of the statutory defence, it is clear from the applicant's own statement of 18 December 2023 that he was well aware that he could apply to vacate his guilty pleas. On his own account he chose not to do so because "he did not want to be put in front of a jury." There is no evidence to suggest that this was anything other than a free and informed decision on his part.[25]Accordingly, we are satisfied that his guilty pleas were properly entered and are unpersuaded that there is any merit in this application to appeal which is refused, as is necessarily the application to adduce fresh evidence from the applicant who has failed to attend before us. Given that the application for an extension of time depended on the merits of the substantive application, it follows that that application is also refused.[26]That only leaves the application for an order for anonymity which application we also refuse for the following reasons. First, it is important to note that there is no automatic right to anonymity for victims of trafficking or modern slavery. Secondly, Criminal Procedure Rule 6.4 requires the parties seeking such an order to specify the proposed terms and length of the order, explain what power the court has to make the order and explain why an order in the terms proposed is necessary. This rule has not been complied with. Thirdly, we note that there were no restrictions on publication of the applicant's name in the course of proceedings in the Crown Court.[27]As was made clear in R v Baniulyte [2025] EWCA Crim 1205 at [88]:
"Any derogation from, or restriction upon, open justice is exceptional and must be based on strict necessity. The derogation or restriction must be shown by 'clear and cogent evidence' to fulfil a legitimate aim and to be both necessary and proportionate... "
[28]In the absence of such "clear and cogent evidence" we decline to make an order withholding the applicant's name. No reporting restrictions therefore apply and this case can therefore be reported in the name of the applicant which is Lowe. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE29. Tel No: 020 7404 140030. Email: rcj@epiqglobal.co.uk