The solicitors for self-confessed Nasa hacker Gary McKinnon are putting together an appeal to the High Court in the light of evidence about McKinnon's medical condition.
McKinnon's solicitor Karen Todner told ZDNet.co.uk on Tuesday that as McKinnon had recently been diagnosed with Asperger's Syndrome, she was considering an application to the High Court to consider halting his extradition, should an application to home secretary Jacqui Smith fail.
"We are preparing an emergency application [to put] before the High Court under habeas corpus," said Todner. "We would apply to the High Court to consider new evidence and ask [the government] not to extradite him in the meantime. This would be a new legal challenge based on his Asperger's."
A writ of habeas corpus calls on a court to examine whether a custodian has the authority to detain a particular individual, and in this case, could slow or halt McKinnon's extradition. Todner said that should the home secretary decide to allow the extradition to go ahead, Todner would seek a judicial review of the decision.
McKinnon was diagnosed with Asperger's Syndrome, a form of autism, by a forensic psychiatrist on 23 August, according to Todner. His mother, Janice, told ZDNet.co.uk that the psychiatrist had performed a series of tests on McKinnon, and had interviewed his friends, girlfriend and ex-girlfriend to gauge his condition.
Upon learning of the diagnosis, Todner applied to the Home Office seeking a two-week window to make representations that McKinnon serve any sentence in the UK, in the light of his diagnosis. This leave was turned down, the solicitor said.
"I wrote to [the Home Office] and asked for 14 days' grace to make representations," said Todner. "They said they would not hold off. They faxed back and said no, they were not prepared to give that. So one of my colleagues delivered the representations by hand on Friday afternoon — now they have to consider them."
Todner said she had not received any acknowledgement from the Home Office that her representations had been received. However, a Home Office spokesperson told ZDNet.co.uk that Todner's representations are being considered.
"Further representations have been received from Mr McKinnon's solicitors against his surrender to the USA and these are receiving consideration," the spokesperson said in an emailed statement. "A response will be addressed to Mr McKinnon's representatives in due course."
There is no time limit for representations to be considered. However, ZDNet.co.uk understands that the Home Office will make a decision as quickly as possible.