R v Mikolajczyk [2025] EWCA Crim 1232: A stringent “interests of justice” standard for 12‑year out‑of‑time appeals and the limits on re-trying jury verdicts

Introduction

In R v Mikolajczyk [2025] EWCA Crim 1232, the Court of Appeal (Criminal Division), constituted by Lord Justice Singh, considered a renewed application for an extraordinary extension of time—4,472 days (over 12 years)—to seek leave to appeal against two murder convictions recorded in 2012. The case provides a clear and rigorous restatement of the principles governing applications to appeal out of time, particularly the “interests of justice” test derived from Thorsby [2015] EWCA Crim 1, and the Court’s reluctance to re-try cases absent substantial, credible fresh evidence.

The applicant, a Polish national, had been convicted of the murder of Giuseppe and Caterina Massaro in Wolverhampton in April 2011. He advanced 25 grounds of appeal, which the Court sensibly grouped into five themes: criticism of the investigation/prosecution, alleged failings by his legal team, translation concerns, assertions that witnesses supported him, and claims of intimidation by a co-defendant. He also relied on practical difficulties (including repatriation to Poland) as reasons for delay.

The Court reaffirmed the Single Judge’s refusal of the extension and leave, determining that the delay was not justified and that, in any event, the proposed grounds lacked substance. Importantly, the Court navigated the necessary interrelationship between the extension-of-time question and the merits, explaining that in deciding whether to extend time the Court must examine the substance to avoid significant injustice—especially where the appellant faces a long minimum term.

Summary of the Judgment

- The Court refused the application to extend time by 4,472 days and refused leave to appeal the convictions.

- Applying Thorsby, it reaffirmed that extensions are granted only if it is in the interests of justice, with the burden increasing as delay lengthens. The applicant’s reasons—advice that there were no grounds, difficulty finding lawyers, ignorance of procedure, repatriation to Poland, and general doubts about safety—did not “begin to justify” a delay of over 12 years.

- On the merits, the Court endorsed the Single Judge’s analysis that the evidence at trial was overwhelming. Key features included the applicant’s presence in the victims’ home at the time of the murders, his blood on both murder weapons (hammer and knife), and multiple shifts in his instructions requiring amended defence case statements. The jury had a proper evidential basis to be sure of guilt.

- The Court systematically addressed and rejected the 25 grounds, noting that many merely sought to re-litigate issues available at trial and rejected by the jury, were speculative or unsupported (for example, translation complaints), or were irrelevant to the core issues (for example, points about who drove the stolen car).

- As to alleged fresh evidence (from a witness, Mr Kus), the Court highlighted delay, prior availability (or at least the capacity to seek admission at trial), agreed facts concerning the individual, and the apparent lack of exculpatory value.

- Ultimately: “It is not reasonably arguable that these convictions are unsafe.”

Analysis

Precedents Cited

The Court expressly cites and applies Thorsby [2015] EWCA Crim 1, describing the guiding principle for out-of-time appeals:

“the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so.”

Two critical corollaries are reinforced:

The longer the delay, the more onerous the duty to provide substantial justification.
In deciding whether to extend time, the Court may need to consider the substantive merits to ensure that refusal of an extension does not inflict significant injustice, particularly where the appellant faces a lengthy minimum term.

Although no other authorities are cited in the judgment, the Court’s approach coheres with established criminal appellate practice under the “unsafe” test and the cautious treatment of late appeals that seek to revisit jury verdicts without genuinely fresh, material evidence.

Legal Reasoning

1) Extension of time: interests of justice and the weight of delay

The Court began with the applicant’s reasons for delay: negative advice from trial counsel; inability to find alternative lawyers; lack of procedural knowledge; repatriation to Poland; and the abstract claim that doubts about the conviction should dictate an extension. It held these reasons wholly insufficient to explain a 12-year lapse. This is a robust application of proportionality to the delay; the longer the time elapsed, the more compelling the explanation must be, and personal circumstances like language, relocation, and difficulty securing representation will typically be inadequate without more.

Nevertheless, consistent with Thorsby, the Court evaluated the merits to ensure refusal did not work a substantial injustice given the 34-year minimum term. Finding no arguable merit, it refused the extension.

2) The merits: overwhelming evidence and the boundary between appellate review and re-trial

The Single Judge (whose reasons were adopted) summarised why the jury could be sure of guilt: the applicant’s presence in the house during the murders, his blood on the two murder weapons, and his inconsistent instructions requiring two amended defence case statements. The prosecution case was not “fragile circumstantial”: it included direct forensic anchors that the jury was entitled to regard as decisive. The appellate court stressed the limited function of the Court of Appeal—“no part of the function of the Court of Appeal to re-try the case and second guess the jury’s verdicts”—and the sufficiency of circumstantial evidence when properly marshalled, as the trial judge explained to the jury.

3) Treatment of specific complaints

- Translation and interpretation complaints: The applicant alleged that a statement taken at HMP Woodhill was mistranslated and that the prosecution knowingly used an incorrect version. The Court found the claim unspecific and unsubstantiated; more is needed than assertion, especially when advanced so late.

- Alleged universal support from witnesses: The contention that all witnesses testified in his favour was plainly inconsistent with the trial outcome and the prosecution case as summarised; trial counsel had the opportunity to challenge credibility at trial, and the jury’s resolution cannot be relitigated in the absence of fresh, material evidence.

- Fresh evidence (Mr Kus): The Court observed that the defence could have applied to adduce this at trial; there were agreed facts concerning Mr Kus; the applicant referred to testimony emerging four years post-trial, yet he delayed a further eight years before raising it; and, in any event, it did not appear exculpatory. The complaint fails both on lateness and on substance.

- CCTV gaps and unidentified shoeprint: These were known at trial and available to be exploited in cross-examination and submissions. They do not undermine the verdict now, particularly in light of the stronger forensic strands.

- Who drove the stolen car: Even if arguable on its own terms, it was peripheral to the central issues about presence in the house and forensic linkage to the weapons.

- Alleged intimidation by a co-defendant, intoxication, and similar matters: These points were known and could have been run at trial. The jury heard exculpatory explanations (including for blood on the weapons and in a victim’s pocket) and rejected them.

- Procedural complaints (jury briefly leaving the courtroom for legal discussions): The Court notes that this is standard practice and does not impugn the safety of a conviction.

4) Professional criticism and waiver of privilege

Faced with allegations against trial counsel and solicitors, the Court invited waiver of privilege and accepted a detailed response from leading counsel who had represented the applicant at trial. The Court explicitly accepted counsel’s account of the applicant’s conduct and instructions. This underscores a familiar appellate dynamic: criticisms of professional performance must be particularised and supported by cogent evidence; bare assertions, especially made after substantial delay and contradicted by counsel’s contemporaneous understanding, carry little weight.

Impact

The judgment’s significance lies less in forging a new rule than in clearly restating and sharpening existing guidance for late criminal appeals:

Long delays require exceptional, well-evidenced justification. Personal difficulties (language, repatriation, inability to find lawyers) will not, without more, satisfy the “interests of justice” test when the delay is measured in years, let alone a decade.
Courts will probe the merits even at the extension stage to avoid substantial injustice, but speculative, repetitive, or trial-available arguments will not suffice.
Fresh evidence must be genuinely fresh, raised promptly, and possess real exculpatory force. Evidence that was available (or could have been sought) at trial, or which lacks probative bite, will not unlock an out-of-time appeal.
Appellate restraint in re-trying cases is reaffirmed. Absent credible new material, the Court will not second-guess a jury’s assessment of evidence that was fully ventilated at trial.
Translation/interpretation allegations advanced years later must be precise, supported by expert material, and shown to matter.

Practically, the decision will influence case management by reinforcing that:

Defence teams must identify and pursue potential fresh evidence expeditiously, and record reasons if material cannot be obtained earlier.
Appellants contemplating late appeals should focus on specific, material grounds supported by evidence, rather than broad-brush dissatisfaction with trial events.
Where counsel performance is impugned, privilege should be waived and contemporaneous documents examined; courts commonly accept counsel’s account where it is clear and consistent with trial realities.

Complex Concepts Simplified

Extension of time: Criminal appeals must be lodged within strict time limits. An “extension of time” asks the Court to permit a late appeal. The longer the delay, the stronger the justification required.
Interests of justice test: From Thorsby, the Court will extend time if it serves the interests of justice, which typically involves weighing the explanation for delay and the arguable merit of the proposed grounds.
“Unsafe” conviction: The statutory touchstone for allowing an appeal against conviction is whether the conviction is “unsafe.” If the proposed grounds are not reasonably arguable to render the conviction unsafe, leave will be refused.
Fresh evidence: Evidence not adduced at trial may be admitted on appeal if it is credible, material, and if there is a good reason why it was not presented earlier—subject always to the interests of justice. Courts scrutinise freshness, delay, and potential impact on the verdict.
Circumstantial evidence: Evidence that requires inference rather than direct eyewitness testimony. Properly marshalled and cogent circumstantial evidence can be as powerful as direct proof.
Jury leaving the courtroom: Routine practice for legal argument to occur in the absence of the jury; it does not reflect impropriety or prejudice.
Waiver of privilege and counsel responses: When an appellant alleges trial counsel error, privilege may be waived so counsel can respond. Courts often place weight on counsel’s contemporaneous account unless contradicted by compelling evidence.

Conclusion

R v Mikolajczyk is a clear reaffirmation of the stringent approach to out-of-time appeals in criminal cases. Applying Thorsby, the Court insisted that the interests of justice do not favour an extension where a 12-year delay is inadequately explained and the proposed grounds lack substance. The decision underscores the high threshold for disturbing a jury’s verdict absent persuasive fresh evidence, the limited role of the appellate court in re-trying facts, and the need for specificity, promptness, and evidential support when mounting late challenges—whether based on translation issues, alleged counsel failings, or post-trial witness statements.

The key takeaway is straightforward: exceptionally late appeals will only proceed where there is a compelling, evidenced explanation for the delay and a genuinely arguable basis for concluding that the conviction may be unsafe. In the absence of both, the interests of justice require finality.