In her present Order 53 statement as amended the
applicant seeks the following relief:
(a) An order of mandamus to compel the Minister to order the dismissal of the
Guardsmen from the Army.
(b) Further and in the alternative an order of mandamus to compel the Minister
to review their employment status.
(c) Further and in the alternative an order of certiorari quashing the decision
of the Minister refusing to discharge the Guardsmen from the Army.
(d) Further and in the alternative an order of certiorari quashing the decision
of the Minister refusing to review the Guardsmens' employment status.
(e) Such further and other relief as the court may deem appropriate.
 The grounds upon which the relief is sought are, in
(a) The declaration made by the Court of Appeal in Re McBride (No 2)
"that taken together the reasons expressed by the Army Board for the retention
in Army service of the Guardsmen in its determination of 21 November 2001 do not
amount to exceptional reasons".
(b) The requirement of the Queen's Regulation earlier referred to.
(c) That since the effect of the declaration made by the Court of Appeal in
Re McBride (No2) is that exceptional reasons did not exist for the decision
of 21 November 2000 there is no longer any justification for the retention of
the Guardsmen in the Army which must act either to discharge the soldiers or to
review their employment status.
(d) There no longer exist legally valid "exceptional reasons" that would "make
retention of the soldier[s] desirable".
(e) In these circumstances QR 9.404(d) requires that they be discharged from the
(f) The Minister erred in law in considering that the decision of the Court of
Appeal did not require the Army to act to discharge the soldiers or review their
(g) The Minister was wrong to refuse to review the soldiers' employment in the
light of the decision of the Court of Appeal.
(h) The Minister's decision was unfair, unreasonable and unlawful.
(i) In reaching his decision the Minister erred in considering only the reasons
given by the Court of Appeal for declining the grant of coercive relief and
failed to have "regard to the reasons of the majority of the Court for rejecting
the decision of the Army Board."
Summary of the submissions on behalf of the applicant
 (1) A soldier who has been convicted by a civil court cannot be retained in
the Army and must be discharged unless there exist "exceptional reasons "that
make his or her retention desirable.
(2) The Army has twice decided that there are such exceptional reasons for the
retention of the Guardsmen but the Court of Appeal has decided in McBride (No
2) that the reasons articulated in the second decision, that of 21 November
2000, were again not, taken together, "exceptional reasons" within the meaning
of Queen's Regulations.
(3) It therefore followed that the Army ought, on receipt of the Court's
decision, either to have forthwith discharged the Guardsmen from the Army or,
alternatively, to have reconsidered their employment status so as to determine
whether other "exceptional reasons" now exist that would justify the retention
of either Guardsman in the Army.
(4) Mr Treacy submitted that the terms of the Minister's letter of 10 September
indicate that the Army wrongly considers that the decision by the Court of
Appeal in McBride (No 2 ) not to make a mandatory order relieves the Army
of what he submitted was its obligation nevertheless to revisit the question of
the continued retention of the Guardsmen. This, in Mr Treacy's submission, is a
misapprehension of the relevant Queen's Regulation. He contended that the Army
presently retains in its service two soldiers who have been sentenced to
imprisonment by a civil court but with no exceptional reasons in place to
justify their retention. He submitted that, regardless of the fact that the
Court of Appeal decided not to make a mandatory order, the Army is independently
obliged by Queen's Regulations to revisit the question as to whether exceptional
reasons do now exist for the retention of either of the Guardsmen and if in
either case they do not (or if the Army does not wish to revisit the question)
then that soldier must be discharged.
(5) It was further submitted on behalf of the applicant that the terms of the
correspondence mentioned above demonstrate that in deciding not to again review
the employment status of the guardsmen the Army was motivated solely by the fact
that it was not ordered to do so by the Court and had failed to take account of
the entire decision of the Court. Mr Treacy pointed out that the Prime Minister
and Mr Caplin both indicated in their letters that the Ministry of Defence and
the Army authorities "will take into account the full implications of the
judges' serious concerns in the handling of future retention
cases."(emphasis supplied) He submitted that to use as the purported
justification for not immediately taking them into account by revisiting the
decision to retain the guardsmen the fact that the Court of Appeal had not
granted coercive relief was indefensible and irrational. Put shortly, if
consideration of the Court's concerns will admittedly be relevant in the
consideration of future potential cases it must be even more relevant to the
present concrete situation so that a reconsideration of the instant case taking
account of those concerns is or ought to have been inevitable.
Summary of the submissions on behalf of the Respondent