R v Miguel Kakaie

An application for leave to appeal a criminal conviction out of time requires a proper explanation for the delay and an arguable basis for appellate intervention. An extraordinary, unexplained delay may justify refusal, particularly where the proposed grounds disclose no arguable merit or significant injustice. Criticism of former legal representatives cannot be evaluated where privilege has not been waived. An appeal is not a second jury trial: circumstantial evidence may be strong, and an appellate court should not second-guess a properly directed jury where ample evidence supported guilt. Evidence available at trial does not become fresh evidence merely because it is presented later.

The applicant was convicted at the Central Criminal Court on 10 May 2016 of theft and two counts of fraud and was sentenced to two years’ imprisonment. He later renewed an application for leave to appeal out of time, lodged more than eight years after conviction, following refusal by a Single Judge.

The proposed grounds challenged the circumstantial evidence, the trial judge’s directions, the presentation of exhibits, the advice not to give evidence, the conduct of trial representatives and alleged fresh evidence. The central issues were whether the delay justified an extension of time and whether any proposed ground disclosed an arguable basis for questioning the safety of the convictions.

The renewed application for leave to appeal out of time was refused.

1. The applicant’s proposed grounds included criticisms of his trial representatives. The Court had invited him to waive privilege so that observations could be obtained from those representatives. Because he had not waived privilege, the Court could not assess whether those criticisms disclosed an arguable ground of appeal. The application was therefore dismissed to that extent, applying the principle referred to in R v Frost-Helmsing [2010] EWCA Crim 1200.
2. The delay was more than eight years and had no proper explanation. The Court agreed with the Single Judge that the application would have been refused on that ground even if an arguable ground had been shown. The proposed grounds also did not make it arguable that significant injustice would result from refusing the extraordinary extension. Alleged negative advice, without more, would not justify delay of any length, and the medical evidence did not explain the delay or support the claimed medical advice.
3. The remaining grounds sought to re-run the trial. The Court agreed that the trial had been fairly conducted and that the jury had been properly directed. A circumstantial case may be strong. Evidence which required careful consideration or was open to forensic challenge did not itself create an arguable safety concern. The appellate court was not a second jury and could not properly second-guess a properly directed jury’s conclusion where there was ample evidence on which it could be sure of guilt.
4. Evidence relied on as fresh had been available at trial and was not admissible as fresh evidence. There was no arguable merit in the proposed appeal and no good reason for the delay. Leave to appeal out of time was refused.

1. Court of Appeal (Criminal Division). Refused the renewed application for leave to appeal out of time. [2026] EWCA Crim 258
2. Single Judge of the Court of Appeal (Criminal Division). Refused the original application for leave to appeal out of time.
3. Central Criminal Court. Convicted the applicant on 10 May 2016 of theft and two counts of fraud and sentenced him to two years’ imprisonment.