Niziol, Re

Habeas corpus is a wholly exceptional remedy in the extradition context. It may prevent an otherwise lawful extradition where circumstances have undermined the basis on which extradition was ordered. A deterioration in the requested person’s physical or mental health after the exhaustion of the extradition appeals does not, without more, justify habeas corpus. The court must distinguish between the legality of surrender and concerns about conditions or procedures in the requesting state.

The applicant faced imminent extradition to Poland under the Extradition Act 2003. His extradition decision had been upheld on appeal, and subsequent applications for a stay had failed. Shortly before surrender, he applied without notice for habeas corpus, relying on a deterioration in his depression and blood-pressure condition. The Polish authorities had undertaken to provide a doctor to accompany him. The central issue was whether his medical condition and the uncertainty surrounding the mechanics of surrender justified the exceptional remedy of habeas corpus.

The court considered Hilali v Governor of HMP Whitemoor and others [2007] EWHC 939 (Admin), in which habeas corpus had been deployed in exceptional circumstances affecting the basis of the extradition warrant.

1. The application for habeas corpus was refused. The applicant’s extradition remained lawful under the statutory process, and his worsening depression did not justify intervention after the dismissal of his final appeal.
2. The court accepted that Hilali v Governor of HMP Whitemoor and others [2007] EWHC 939 (Admin) established that habeas corpus could, in wholly exceptional circumstances, prevent an otherwise lawful extradition. In Hilali, however, events concerning the trial of others had caused the basis of the original warrant to fall away. That was materially different from a deterioration in the applicant’s health following an unsuccessful extradition challenge.
3. The relevant question was the actual surrender of the applicant, rather than the trial, pre-trial detention or investigative procedures that might occur in Poland. The court therefore declined comparisons with domestic deportation cases or prisoners awaiting trial who had medical conditions.
4. The Framework Decision underlying the Extradition Act 2003 supported treating extradition, so far as possible, in the same way as arrest or detention within national boundaries. The court could not use habeas corpus merely because the applicant’s condition had worsened or because there was uncertainty about the precise arrangements for removing him from hospital.
5. The court noted that the undertaking to provide a Polish doctor had changed the position, but it did not alter the legal conclusion. The writ was not issued.

• High Court (Administrative Court): the extradition decision made by the Deputy Senior District Judge on 1 December 2006 was followed by dismissal of an appeal in the Divisional Court. Subsequent applications to the Court of Appeal for a stay or adjournment were refused, most recently by Laws LJ on 8 June 2007.
• High Court (Administrative Court): the application for habeas corpus was refused.