Law Report: Officer's military detention lawful: Re Maychell - Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Clarke), 3 February 1993

A person's detention under close arrest by military authorities for 75 days was lawful since there had to be a proper investigation of the serious allegations made. Therefore it was not appropriate at the present time to grant bail, but that might not be the position in future proceedings.

The Divisional Court dismissed an application by Carole Leslie Maychell for a writ of habeas corpus. Since 22 November 1992, Captain Maychell, an officer in the Territorial Army, has been detained by the Army authorities at Colchester and held under close arrest amounting almost to solitary confinement. She admitted two unauthorised visits to a foreign state. On 29 November, two charges relating to the unauthorised visits were signed by her commanding officer.

On 18 January 1993, she was charged with an offence under section 1 of the Official Secrets Act that a document classified as secret was found in her brief case.

She applied for a writ of habeas corpus on the ground that there had been excessive and oppressive delay in the investigation of her case.

Anthony Arlidge QC, and Stephen Harvey (Thompson Smith & Puxon, Colchester) for Captain Maychell; Philip Havers (Treasury Solicitor) for the Army authorities.

LORD JUSTICE KENNEDY said that it was clear from R v Royal Army Service Corp, Colchester, Ex p Elliott (1949) 1 All ER 373 that the Divisional Court had power which extended to a person held in military custody even when the military authorities were satisfied that the custody was lawful. There was under section 75(1) of the Army Act 1955 a duty on Army authorities to proceed with expedition.

The court was dealing with a serious and complex investigation concerning potential allegations which were serious. They had to be properly investigated.

At the present time excessive delay had not been demonstrated. However, if the matter had to be considered by a court on any future occasion the court would look back as far as 22 November 1992 and would have to be satisfied that the investigations were proceeding as rapidly as could reasonably be expected, having regard not only to the seriousness of the matter but also to the fact that somebody was already under close arrest. If there was any relief to be granted the proper relief would be the grant of bail. However, that relief would not at present be granted.

Mr Justice Clarke concurred.