"That, taken together, the reasons expressed by the Army Board for the retention in Army service of Guardsmen Fisher and Wright in its determination of 21 November 2001 [sic] do not amount to exceptional reasons."

However, the Court of Appeal declined to grant a mandatory order either of certiorari or mandamus such as would have compelled the Army to again review its decision to retain the Guardsmen in service.

The reasoning of the Court of Appeal on the withholding of a mandatory order

"[34] My conclusions are as follows:

Paragraph 18 of the Findings of the Board

[Reasons (a) to (f) were discussed by the Lord Justice and each rejected in turn].

Reason (g) The loyalty of the guardsmen to the Army until their release was understandable but no more than to be expected. Many senior army generals and others had taken up their cause, based on a misreading of the decision of the trial judge or a refusal to accept it. The Army was largely at fault for the situation in which the guardsmen presently find themselves, since in my view a decision should have been speedily taken to discharge them from the Army after the Court of Appeal had dismissed their appeal in December 1995 and before they came out of prison. However I am not prepared to say that an Army Board could not hold reason (g) to be an exceptional reason as at June 2003.

[35] The guardsmen have been Notice Parties to these proceedings and I assume that if there were any reasons which they wished to advance, they would have done so.

Decision and Relief

[36] I have decided that none of the factors at (a) to (f) which the Army Board took into account could be an "exceptional reason" but that reason (g) could be regarded as an exceptional reason making it desirable to retain the guardsmen in the Army. A mandatory order would not be appropriate.

[37] I am prepared to agree to the making of a declaratory order and allow the Army to take such course as it sees fit, having regard to the reasons of the majority of the Court for rejecting the decision of the Army Board. Accordingly, I agree to a Declaratory Order that, taken together, the reasons expressed by the Army Board for the retention in Army service of Guardsmen Fisher and Wright in its determination of 21 November 2001 do not amount to exceptional reasons." (emphasis supplied)

McCollum LJ framed his reasoning on the appropriate relief thus:

"[45] The question of remedy is considerably complicated by the fact that there are essentially three interests involved, that represented by Mrs McBride, that of the army and that of Fisher and Wright.

[46] The second and third are in harmony at present, but if an order of the court has the effect of requiring the army to discharge Fisher and Wright then a different and difficult situation would arise.

[47] Fisher and Wright have a substantial argument that the army's tardiness in determining the question of their discharge has materially altered their situation and has created exceptional reasons for their retention.

[48] Even if Mrs McBride has established that the decision to retain is unsustainable on the basis upon which it was made Fisher and Wright may well be in a position to maintain that their retention is justified by the circumstances which have arisen consequent on the failure by the army to observe the requirement of 9.404(l).

[49] In my view Mrs McBride and the interest she represents will not be materially affected by the remedy itself; it should therefore be sufficient to satisfy her and that section of the public that is concerned that a declaration should be made vindicating the objection to the army's decision.

[50] The circumstances of the appellant are entirely removed from those referred to by Lord Brightman in Chief Constable of North Wales Police v Evans (1982) 1 WLR 115 at 1172:

'My Lords I must address myself later to the question of remedy. All that I would say at this moment is that it would, to my mind, be regrettable if a litigant who establishes that he has been legally wronged, and particularly in so important a matter as a pursuit of his chosen profession, has to be sent away from a court of justice empty handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory.'

[51] In this case the wrong done to the appellant by the legal error of the Army Board is essentially an injury to her feelings. It appears to me that a declaration in the appropriate form will serve to compensate for that injury. It is not apparent that any section of the public will suffer detriment if the Army Board's decision should stand.

[52] Decisions on what is best for the Army and its soldiers are best left to the Army and it would be an unwise usurpation of power if the Court were, at the behest of a person outside the Army not materially affected by the decision, to intervene by mandamus to impose a course of action on Army authorities.

[53] In the circumstances of the case certiorari would merely prolong the agony of all concerned, since it would cause a reopening of the Army Board's consideration of the case when the situation of Fisher and Wright is markedly different from it was when the decision should originally have been made.

[54] If failure to comply with Queen's Regulations were to visit a material injustice on any person then the Courts could intervene to provide a remedy for that person, and counsel for the respondent does not challenge the principle that certiorari does lie. However, in this case it appears to me that the court in its discretion should refrain from making an order of certiorari.

[55] A declaration does not impose upon the Army authorities any legal compulsion to take any further action in relation to the retention or discharge of Fisher and Wright. (emphasis supplied)

[56] I would therefore allow the appeal to the extent of ordering a declaration in the following terms:

'That, taken together, the reasons expressed by the Army Board for the retention in Army service of Guardsmen Fisher and Wright in its determination of 21 November 2001[sic] do not amount to exceptional reasons'."

Correspondence following the decision of the Court of Appeal

"Thank you for your letter of 4 September, which crosses with correspondence I have received from Paul O'Connor of the Pat Finucane Centre. He too has been writing on behalf of Mrs McBride.

I indicated in my letter to Paul O'Connor of 7 August that the Army Board had no plans to review the employment status of the Guardsmen. That remains the position.

Paul O'Connor recognised in his letter to me of 27 August that the Court of Appeal did not order a review of their employment status. That, with respect, is an accurate reading of the judgements. You are correct in stating that the Court made a declaration in the terms you identify, but it carefully considered whether any mandatory or quashing order should be made. Mrs McBride sought an order of mandamus requiring the Army Board to dismiss the Guardsmen, alternatively an order of certiorari quashing the decision with a direction for the matter to be reconsidered. For the reasons given by the court, it declined to grant Mrs McBride that relief.

It is in those circumstances that the Army Board has no plans to revisit the question of the employment of the Guardsmen."

(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.

(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 Army.

(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 employment.

(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

[9] (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

"Similarly with remedies withheld in discretion: the court may hold that an attack on the validity of some act or order succeeds, but that no remedy should be granted. The court then says, in effect, that the act is void but must be accepted as valid."

Founding himself upon this passage and the two authorities referred to in footnotes to support it, Mr Burnett submitted that it was a mistake to suggest that the Army had an obligation to review the second decision because, even though the reasoning that led to it had been rejected by the majority of the Court of Appeal, the refusal by that Court to order a coercive remedy in relation to the decision meant that as a matter of law it remains effective.

(1) 7 August 2003 – the Minister to Mr Durcan:

"We have studied the ruling of the Court of Appeal Northern Ireland very carefully"

(2) 22 October 2003 - Prime Minister to Mr Durcan and

(3) 30 October 2003 - Mr Caplin to Mr Kelly:

"They [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."

Decision

"Such an absolute result depends, however, upon the willingness of the court to grant the necessary legal remedies.

The court may hold that the act or order is invalid, but may refuse relief to the applicant because of his lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason . In any such case the "void" order remains effective and must be accepted as if it was valid."

In my judgment that is the effect produced in this case by the nature and terms of the order of the majority in relation to the second decision and the consequent decision of the Army authorities, made as I find in the light of the entirety of the judgments and not merely those sections relating to remedy, not to further review the employment status of the Guardsmen. The second decision to retain them in service therefore remains effective even though the majority found that there is no basis for it. I consider that Mr Burnett was correct in his submission that the present proceedings are an impermissible attempt to circumvent the effect of the order of the majority. Accordingly I refuse the relief sought.