The High Court dismissed Olesja Cerkovska’s judicial review proceedings over funding for expert reports in European arrest warrant cases, ruling that her challenge was premature on the evidence before it.
In a judgment delivered on 21 May 2014, Mr Justice Edwards upheld preliminary objections raised by the respondents and dismissed the case in limine. The court did not determine the substantive claims about the Legal Aid (Custody Issues) Scheme or whether its arrangements were unlawful.
Cerkovska faced two European arrest warrants seeking her return to Latvia: one for prosecution over two theft-type offences and another to serve a one-year sentence imposed in 2009 for nine theft-type offences. Surrender hearings in those cases were adjourned pending the judicial review.
She wanted to obtain psychological evidence about how surrender might affect her children, in support of objections based on family life and human rights. Under Article 13 of the Legal Aid (Custody Issues) Scheme, the court may recommend at the end of proceedings that a report’s cost be covered if it finds the report essential to preparing and conducting the case. The Legal Aid Board then considers payment.
Cerkovska argued that the absence of advance approval left her uncertain about whether report costs would be paid. The respondents said her case was speculative: she had not shown that an expert would refuse to provide a report on the scheme’s terms, that she had incurred costs, or that her ability to present her case had been impaired.
The judge said a challenge to the scheme required evidence that Cerkovska had suffered, was suffering, or was likely to suffer actual prejudice. The evidence did not show that her solicitor had been unable to retain an expert, had entered a contract or incurred expenses, or that Cerkovska had been deterred from pursuing her objection in the warrant proceedings.
The court also considered sworn assurances from the Legal Aid Board that expert-fee claims would be assessed fairly and that court recommendations would receive due regard. It concluded that any feared payment problem remained theoretical on the evidence before it.
The ruling concerned only the preliminary objections. The court declined to examine the substantive claims further. The judgment did not determine the surrender proceedings or whether the proposed reports would ultimately qualify for payment.