Refusing Long Extensions of Time Where No Arguable Appeal Ground Is Shown (CACD)

Case: Rex v Izzet Kirmizigil [2026] EWCA Crim 638
Court: England and Wales Court of Appeal (Criminal Division)
Date: 6 May 2026 (on renewal of Single Judge refusals)
Judges: Lord Justice Singh, Mr Justice Soole (giving the judgment), Recorder of Sheffield (HHJ Richardson KC, sitting)

1. Introduction

The applicant sought (i) leave to appeal conviction and sentence for possession of Class A drugs (heroin) with intent to supply, and (ii) substantial extensions of time—580 days (conviction) and 323 days (sentence)—after the Single Judge refused leave in each case.

The prosecution alleged that the applicant and a co-accused (Ms Bessa), acting together, knowingly possessed and controlled 45 kg of heroin (minimum wholesale value £720,000) stored in a locked eaves compartment in her rented flat. CCTV showed both defendants transporting boxes into the building and donning gloves. Each defendant advanced an “innocent helper” account and blamed the other, producing a cut-throat trial.

The legal issues on renewal were:

  • whether there was any arguable basis to disturb the conviction as unsafe (including alleged “lurking doubt”);
  • whether bad character evidence was wrongly admitted and rendered the trial unfair;
  • whether the sentence (13 years 6 months) was arguably manifestly excessive given the guideline framework; and
  • whether, in light of the above, the court should grant the very long extensions of time.

2. Summary of the Judgment

The Court of Appeal (Criminal Division) refused leave to extend time for both conviction and sentence appeals. The court held:

  • there was no arguable ground of appeal and no basis to doubt the safety of the conviction;
  • the evidence was a strong combination of direct and circumstantial material capable of proving knowledge and intent;
  • the admission of the applicant’s bad character was an inevitable consequence of the defence strategy (and, in any event, would have been admitted);
  • the sentence properly reflected a significant role, category 1 harm, and a necessary uplift for the sheer quantity of heroin and the applicant’s previous serious offending abroad; and
  • given the absence of any arguable appeal, “no useful purpose” would be served by granting the long extensions of time sought.

3. Analysis

3.1 Precedents Cited

The judgment does not cite any previous authorities by case title. The applicant referred generally to case law on “lurking doubt” (i.e., the appellate court’s residual concern about the safety of a verdict even where no specific legal error is shown), but no named precedent is identified in the transcript.

In substance, the court applied well-established appellate principles: the question is whether the conviction is unsafe on the whole of the evidence and the summing-up, and whether any complaint discloses an arguable ground warranting leave.

3.2 Legal Reasoning

(a) Safety of the conviction: knowledge and intent inferred from the evidential picture

The applicant’s core submission was that the only “direct” evidence was CCTV of him carrying boxes and that the remainder was either neutral or dependent on the co-accused, who was allegedly lying. The court rejected that characterisation and treated the case as resting on a mutually reinforcing evidential matrix, including:

  • CCTV showing coordinated movement of boxed packages into the premises and the use of gloves;
  • the presence of 45 kg of heroin in a locked storage area, with the key found concealed in a disguised safe;
  • evidence suggesting the boxes had been opened before storage;
  • telephone and ANPR evidence consistent with coordinated movements to and from Heathrow; and
  • the overall context of a large-scale, commercial drug operation inconsistent with an innocent domestic errand.

On that material, the court was satisfied the jury had a strong evidential basis to be sure of the essential elements, including knowledge and intent to supply. The court also noted it had reviewed the summing-up and found no erroneous rulings of law or improper admission of evidence undermining safety.

(b) “Cut-throat” strategy and bad character: the price of the tactical choice

A prominent feature of the renewal was the applicant’s complaint that his previous conviction in Germany (people trafficking) was wrongly adduced merely to prejudice the jury. The court’s reasoning was pragmatic and strategy-focused:

  • The trial was explicitly cut-throat: each defendant sought to undermine the other’s credibility and responsibility.
  • The applicant sought to adduce adverse material concerning the co-accused and a third party (Mr Ostwoycan), including prior drug supply convictions and incriminating communications attributed to the co-accused.
  • The applicant’s own bad character was introduced not by the prosecution but following the co-accused’s application; the applicant had been advised that this was the likely consequence of advancing that form of defence.
  • Trial counsel’s response indicated that, even absent agreement, the judge would “inevitably” have permitted admission—underscoring that this was not an unfair ambush but a foreseeable outcome of the chosen line of attack.

The court therefore treated the bad character point not as a misdirection or unfairness, but as part of the adversarial balance the trial process requires when defendants put each other squarely in issue.

(c) Charging decision and “ulterior intent”

The applicant argued he should at most have faced simple possession and that the prosecution failed to charge the “real” dealer. The court accepted counsel’s analysis that, on the case as advanced and evidence relied upon, there was “no possible basis” for the prosecution to limit the matter to simple possession or accept a plea to a lesser offence. The court’s conclusion reflects the orthodox position that:

  • intent to supply can be proved by inference from quantity, packaging, concealment, coordination, and surrounding circumstances; and
  • a perceived failure to prosecute a third party does not itself negate the sufficiency of evidence against the convicted defendant.

(d) Sentence: guideline structure, exceptional quantity, and uplift

The sentencing judge placed the applicant in a significant role and category 1 harm under the drug guideline framework (category 1 being predicated on 5 kg of heroin, with a starting point of 10 years and a category range of 9–12 years). The Court of Appeal endorsed the approach of moving beyond the category range because:

  • the quantity was 45 kg, far exceeding the category threshold and indicative of a highly commercial operation; and
  • the applicant’s previous serious offending in Germany properly aggravated sentence.

On that basis, a sentence of 13 years 6 months was not arguably excessive.

(e) Extensions of time: “no useful purpose” absent an arguable appeal

Although the applicant explained the delay by reference to advice that he had no grounds and difficulty pursuing procedures unaided, the court’s decisive reasoning was that, where no arguable challenge exists, granting an extension serves no useful purpose. In other words, the extension application rose or fell with the merits: without an arguable appeal, the delay question did not justify reviving proceedings.

3.3 Impact

The decision reinforces several practical points in criminal appellate practice:

  • Extension applications are merit-sensitive: very long delays will not be indulged where the proposed appeal is unarguable.
  • Large-quantity heroin cases readily justify a sentence uplift above the nominal category range where the guideline itself flags “most serious and commercial scale” operations.
  • Cut-throat defences carry reciprocal risk: a defendant who seeks to deploy bad character against a co-defendant may face the admission of their own adverse history as part of the fairness balance.

4. Complex Concepts Simplified

  • “Lurking doubt”: a shorthand for the appellate court’s residual concern that a conviction may be unsafe even without pinpointing a specific legal error. It is not a licence to re-try the case; it is exercised sparingly and usually where the overall evidential picture leaves the court genuinely uneasy.
  • Cut-throat defence: where co-defendants run mutually incompatible accounts, each effectively alleging the other is responsible. This often increases the relevance of credibility and can widen admissibility arguments.
  • Bad character evidence: evidence of prior misconduct/convictions used to assist the jury on issues such as credibility or propensity. It is tightly controlled but may be admitted, including on a co-defendant’s application, where it has substantial probative value on an issue between defendants.
  • Category 1 harm / significant role (drug guideline terms): structured labels used to locate a starting point and range; unusually large quantities can justify moving above the range where the guideline contemplates exceptionally serious commercial scale offending.
  • Respondent’s Notice: a document by the prosecution/respondent setting out reasons to uphold the decision and/or additional arguments resisting the appeal.
  • Waiver of privilege: when an appellant criticises former lawyers, they may waive legal professional privilege so counsel/solicitors can respond; the court can then assess the fairness and competence of the representation.

5. Conclusion

Rex v Izzet Kirmizigil [2026] EWCA Crim 638 exemplifies the Court of Appeal’s disciplined approach to out-of-time criminal appeals: where the proposed grounds disclose no arguable error and the conviction is safe on the evidence and directions, the court will not grant even substantial extensions, because doing so serves no practical purpose. Substantively, the judgment also confirms that exceptionally large quantities of heroin can properly drive substantial uplifts beyond category ranges, and procedurally it illustrates how tactical choices in a cut-throat trial can make the admission of bad character evidence a foreseeable—and sometimes inevitable—consequence.