Army officer escapes prison after pleading guilty to negligence that lead to death of young cadet

AN Army officer will only be fined after his health and safety failures led to the death of a young cadet on a training exercise in the Outer Hebrides.

Major George McCallum, 52, admitted contravening the Health and Safety at Work Act following the death of 14-year-old Kaylee McIntosh, from Fyvie in Aberdeenshire, in 2007.

Sentence at Inverness Sheriff Court was deferred for two weeks by Sheriff William Taylor, QC, to consider the ‘overall picture’ of the Falkland Islands’ war veteran’s overall role in the tragedy as the court was told the cause of the accident had been an “organisational failing”.

The sheriff, however, was told he can only impose an unlimited financial penalty, as the crime was committed before new legislation was introduced which extended sentencing powers to a maximum of two years’ imprisonment.

Kaylee’s parents, Lesley and Derek, welcomed McCallum’s guilty plea, saying it was the “only honourable route available”.

Kaylee drowned after becoming trapped under a boat during a training exercise at Loch Carnan, South Uist, on 3 August, 2007.

McCallum, who also served in Northern Ireland with the Parachute Regiment, was in charge of the expedition when the rigid boat capsized.

The court was told Kaylee was wearing the wrong type of lifejacket - one designed for a soldier in full combat gear. The teenager was pinned under the hull for 90 minutes, unable to swim under the boat because of the jacket’s buoyancy.

The boat, carrying eight cadets and four adults, was also overloaded by two people. There was also a heavy machine gun on board, and the engine was placed on one side, making the vessel list.

The self-bailers, which empties inflowing water from inside the craft, were also closed.

As the long list of failures were being outlined, Sheriff Taylor commented: “Capsize was virtually inevitable.”

There was no roll call following the rescue operation and Kaylee was only noticed to be missing by another cadet 90 minutes later.

The Coastguard helicopter called following the accident was initially sent to the wrong location, and had returned to its base by the time it was realised Kaylee was missing.

Depute fiscal Geoff Main said: “McCallum was in charge of this activity and played a significant role in its planning, assessment and implementation.

“Whilst there seems little doubt that he intended the experience to be an enjoyable and exciting one for the cadets, in relation to a number of aspects he failed to sufficiently assess the risks involved in this journey or to take all reasonable steps when planning or carrying out the activity.

“To that end the accused did not take reasonable care for those on board the boats, as required of him by virtue of the 1974 [Health and Safety] Act.

“The consequence of his – and organisational – failing is that a 14-year-old cadet needlessly and tragically died during a training camp at which her parents believed her to be safe.”

Defence counsel Barry Smith said: “I am instructed by McCallum here in public to formally express his sorrow and remorse at the tragic consequences of this terrible accident.

“For his part in this matter, and the parts he bears responsibility, he is very sorry indeed.”

A statement on behalf of Kaylee’s parents said: “We welcome that Major McCallum has taken the only honourable route available and pleaded guilty to the charge against him arising from the significant role he played in the wholly unnecessary death of our beloved daughter Kaylee.

“The family’s position today is to give a guarded, cautious welcome. There’s certainly no sense of triumphalism on their part.

“They view this as one more step on a long road to securing comprehensive justice for their daughter Kaylee.

“They are in a sense grateful to Major McCallum for what he’s done today, albeit at long last, to hold up his hands and admit his culpability to what happened to Kaylee.

It added: “By pleading guilty Major McCallum has at least spared us the ordeal of sitting through a further legal hearing analysing the dreadful detail of Kaylee’s last moments and the unforgivable catalogue of errors that led to her death.

“However, Major McCallum is only one of a number of people who have to answer for their actions on the day Kaylee was taken from us. Our campaign does not stop here and we will continue to press the Crown Office to bring charges against several others implicated in the death of our daughter.’’

The fiscal told the court: “The Health and Safety Executive has commenced Crown Censure proceedings against the Ministry of Defence in relation to alleged failures to comply with the duties place on it as an employer.

“A Crown body may be censured in respect of breaches of health and safety legislation which would have been the subject of prosecution but for the fact that the body has immunity from prosecution by virtue of Section 48 of the 1974 Act.”

He said that censure was at a very early stage, adding: “Whilst Mr McCallum was in charge of the transfer by boat, he was not the highest ranking officer at camp. There were others who were in a position to challenge or question his planning and decision-making, but chose not to do so.”

The Commander of 51 Scottish Brigade, Brigadier Paul Harkness, said: “The Army is extremely sorry about the events that led to the tragic death of Cadet Kaylee McIntosh and for the loss suffered by her family in particular. We apologise unreservedly for any failures by the Ministry of Defence which contributed to her death.

“We continue to do our utmost to ensure that those involved have been kept informed of significant developments, The Ministry of Defence will continue to offer support to the McIntosh family for as long as they require it. “The Ministry of Defence has already learned lessons from this tragic incident and taken steps to prevent a recurrence. When it becomes available we will review the Health and Safety Executive’s report and take action to address any additional areas of concern.

“The Army remains committed to ensuring that the many thousands of cadets who enjoy adventurous and other forms of training each year do so safely, for their benefit and for the benefit of the wider community.”

HSE Inspector Douglas Conner said: “The investigation into the circumstances surrounding this tragic incident revealed a number of failings by Mr McCallum.

“Mr McCallum failed to sufficiently assess the risks involved or to take all reasonable steps when planning or carrying out the activity.

“The part played by his employers, the Ministry of Defence, in Kaylee’s death is being dealt with separately by HSE.”