The parents of a 14 year old cadet who died while taking part in a training exercise in South Uist in 2007, say they have been ‘badly let down’ by the Criminal Justice System after the Health and Safety Executive today (Friday) formally censured the Ministry of Defence on behalf of the army for its part in her death.
The concept of Crown Immunity means the army will face no prosecution for Kaylee McIntosh’s tragic death.
A Health and Safety Executive (HSE) investigation found a series of serious failings by Major George McCallum, who was leading the boating trip, compounded by systemic organisational failings by MOD Army.
General Sir Nick Parker attended today’s Crown Censure meeting and accepted the findings on behalf of the MOD, formally acknowledging there were health and safety failures.
The MOD cannot face prosecution in the same way as non-Government bodies. Crown Censures are agreed procedures applicable to Crown employers, including the MOD, in lieu of criminal proceedings.
HSE’s Director for Scotland and Northern England, David Snowball, who chaired the Censure said: “The various investigations into the circumstances surrounding this tragic incident revealed a number of organisational failings by the MOD.
“HSE’s investigation has confirmed that primary failings during the activity amplified a number of significant underlying organisational failures. In particular, there was evidence of poor planning, leadership and execution of the exercise, coupled with inadequate oversight, procurement, monitoring and training arrangements. These all contributed to the events that took place.
“Together with the considerable failings of Major George McCallum, who was in charge of this activity and played a significant role in its planning, assessment and implementation, what should have been an enjoyable and exciting experience resulted in tragedy.
“The evidence brought to light by HSE’s investigation would be sufficient to provide a realistic prospect of conviction of the MOD in civilian courts. A Crown Censure is the maximum enforcement action that HSE can take and it serves to illustrate how seriously we take the failings that led to the death of Kaylee McIntosh.”
Kaylee McIntosh was part of a group from the 2nd Battalion of the Highlanders Army Cadet Force, taking part in the Annual Camp at South Uist.
On 3 August, Major George McCallum led an exercise to take some of the cadets by boat from the jetty at Loch Carnan to Loch Skipport where there was a training area.
Due to poor weather, the trip was abandoned part way through, but while trying to turn around, one of the boats capsized throwing everyone overboard. Kaylee was trapped beneath the boat for approximately two hours before she was noticed as missing.
Kaylee’s parents said today, they had been badly let down by the Criminal Justice System.
They said: “The Army cannot be prosecuted for their failings as they are protected by Crown Immunity. The Crown Censure which the Health and Safety Executive has conducted is just window dressing. The army are effectively being given a slap on the wrist and told not to do it again. That’s not justice for Kaylee.
“We are not convinced that a similar accident couldn’t happen today. There were rules in place that ought to have prevented Kaylee’s death, so what’s the point of making more rules that individuals don’t bother to follow?
“The army has focused their changes on Kaylee’s cadet battalion. There has been an improvement there only because they’ve changed local personnel but there are so many other cadets across the UK. Those in charge of children need to be competent, experienced and well trained and our view is the only way this can be achieved is through independent regulation of cadet forces and the lifting of Crown Immunity for such forces. It seems to us until that’s done children going to camps like Kaylee attended are no safer than she was five and a half years ago.
“If Kaylee had been on a school trip the Council would have been prosecuted for breaches of Health and Safety law but the army is immune and the law completely powerless to penalise them. When you are dealing with the safety of children we don’t think it’s appropriate for the army to hide behind Crown Immunity, this immunity shouldn’t apply to cadet forces.“
Jayne Crawford, the family’s solicitor and Associate at Thompsons Scotland added;
“Today has been another disappointment for Kaylee’s parents. The army is shielded from a full criminal prosecution for their failings as they have crown immunity. It isn’t clear to Derek and Lesley McIntosh or us that there is any justification for the army having such immunity in the circumstances of this case. The fact the law does not draw a distinction between cadet forces arranging leisure activities involving children and those actively serving in the armed forces appears absurd.
“In fact the number of non combat accidents generally shows that the army does not take matters of health and safety anywhere near as seriously as it ought to. Making it face the full force of the criminal law for such accidents and for tragedies such as Kaylee’s death by removal of Crown Immunity is a matter that should be considered by Parliament if it is serious about safety of those who serve their country and those, like Kaylee, who have ambitions to do so.”