Kaylee McIntosh: sheriff's findings in full

(ii) The causes of the accident resulting in the death were: i. The Rigid Raider II was being operated in weather conditions at or beyond its design capacity. The operating limit of the vessel was Beaufort force 5. The weather forecast issued at 0700 for the morning of 3 August 2007 indicated that the wind was south or southwest 5 to 7, perhaps gale 8; the sea state slight to moderate, becoming moderate or rough, occasionally very rough in west. There was a significant swell beyond the shelter of the area at the jetty at Loch Carnan.

ii. The boat was overloaded and was subject to bad trim. There were 10 seats but 12 passengers. A General Purpose Machine Gun and its tripod, which were heavy, together with an instructor were positioned at the bow of the vessel. The boat was designed to operate with two engines but there was only one on the port side.

iii. The self-bailing devices at the stern of the vessel were not opened until just before capsize. The boat should not have been operated without lowering those. The boat will ship water as it is sailed unless those devices are lowered. The vessel did ship water once out in the open sea.

iv. As a result of the combination of the circumstances described above in i, ii, and iii there was a considerable quantity of water aboard the vessel. The engine choked. Finally the coxswain ordered the boat's occupants to move to the starboard side. The free-surface effect of the trapped water on the port side shifting to the starboard resulted in the craft being overwhelmed. An attempt to save the situation by instructing the boat's occupants to move to port failed and the vessel capsized.

v. After the capsize, most of the occupants were thrown out from the vessel. Three cadets, including the deceased and one instructor found themselves under the upturned hull. Two of the cadets and the instructor managed to escape. The deceased did not escape.

(c) (i) That the following were reasonable precautions whereby the accident resulting in the death might have been avoided: 1. If the cadet instructor in charge of the voyage between Loch Carnan and Loch Skipport on 3 August 2007, namely Major George McCallum, had, on that date obtained an up-to-date weather forecast on weather and sea conditions in Loch Carnan, then it would have been apparent that the weather conditions were too severe for the Rigid Raider II to embark on the voyage at all.

2. The making of an advance reconnaissance voyage into the open sea at Loch Carnan before setting off on the voyage carrying the cadets and instructors.

3. The deployment of the self-baling equipment on board the vessel, the Rigid Raider Mark II, carrying the deceased as soon as the vessel was under way from the jetty at Loch Carnan.

4. Familiarisation of the coxswain of the Rigid Raider Mark II, namely Major George McCallum, with its operational limits as to weather, weight of crew, passengers and equipment and distribution thereof, deployment of the self-bailing equipment and handling qualities.

5. The appointment of a safety officer, separate from the operation of the voyage itself, with responsibility to check in advance the safety of the activity and with the power to order, on safety grounds, that the voyage not take place.

6. The devising of and adherence to a detailed risk assessment of the intended voyage from Loch Carnan to Loch Skipport might have led to a decision being made on 3 August 2007 not to embark on the voyage at all.

(ii) That the following were reasonable precautions whereby the death might have been avoided: 1. A numerical head count of those ordered on board the Rigid Raider II before it set off from the jetty at Loch Carnan.

2. A nominal roll call those ordered on board the Rigid Raider II before it set off from the jetty at Loch Carnan, based on an accurate manifest held by the coxswain of the names of all on board that vessel.

3. The taking of copies of that manifest and passing those to a shore-based adult instructor.

4. While at sea and after the capsize a numerical head count and nominal roll call of all of those thrown from the Rigid Raider II, namely all the cadets and instructors who had been on board that vessel.

5. Having on the exercise a fourth vessel which could have been used as a designated safety boat. After the capsize, the rescue of those in the water could have been co-ordinated by another officer with responsibility only for safety of the voyage.

6. The issuing of appropriate life-saving equipment to the cadets, in particular, in the case of the deceased, of a lifejacket of appropriate buoyancy for a 14 year old female.

7. The possession by all adult instructors participating in the exercise on 3 August 2007 of detailed information as to the route to be followed by the three Rigid Raider craft between Loch Carnan and Loch Skipport, both South Uist.

8. Notification by the ACF in advance to HM Coastguard, in particular at their control room in Stornoway, Isle of Lewis, of the intended route, date and intended time of the voyage between Loch Carnan and Loch Skipport on 3 August 2007.

(d) That the following defects in systems of working contributed to the death and the accident causing the death: 1. The leaving by the camp commandant of all aspects of the organisation of the voyage from Loch Carnan to Loch Skipport on 3 August 2007 to the Cadet Executive Officer, Major George McCallum, without having in place any safety check or risk assessment of the voyage by any other officer. This amounted to an exclusion of this voyage from the requirement of all activities during the camp to be assessed appropriately and competently for risks to the safety and wellbeing of the cadets, including the deceased. On the basis that the camp commandant and other senior officers organising and delivering the activities during the camp were aware of the intended voyage, it was a defect in the system of working, namely the organisation of the camp, to allow this voyage to be treated, so far as organisation and risk assessment were concerned, differently from all other activities during the camp.

2. The failure to have a training and safety adviser present throughout the duration of the camp. The training and safety adviser's time and attention were divided between two camps, hundreds of miles apart, running over overlapping periods. Had the training and safety adviser been present throughout the camp and able to concentrate on only one set of activities, he most likely would have detected the lack of a proper risk assessment of the voyage.

3. The failure of the system said to be in place to secure the issue of appropriate life-saving equipment for use by cadets in that it allowed the issue of a number of Assault Troop Lifejackets, of 498 Newton, to Major McCallum for use by cadets, when it was self-evident that those were unsuitable for use by any cadets.

4. The failure of the Battalion to have appointed a separate safety officer for the voyage with the responsibilities mentioned above. The system of working provided for the appointment of such a safety officer. The failure of the officers responsible for planning and organising of the camp to ensure compliance with Army and ACF regulations by the appointment of such a safety officer amounted to a failure in a system of working which contributed to the accident.

(e) That the following facts are relevant to the circumstances of Kaylee McIntosh's death: 1. The absence of reliable radios on board the Rigid Raider II or the other two Rigid Raider vessels, which together formed a flotilla. The absence of such equipment prevented those on board the vessels from effective communication with each other or with any shore-based officer.

2. The method of acquisition of the Rigid Raider II for the Battalion by Major McCallum was unconventional and unsatisfactory. An indication had been given to the supplier within the forces that its intended use was as a safety boat. That was not the use to which it was put during the 2007 camp. The system of gifting equipment such as boats appeared to be informal and carried out with little regard to the appropriateness of the equipment for the cadets for whom it was being requested.

NOTE Introduction 1 It may be helpful to make some introductory comments so that, on the one hand, the objectives and purpose and, on the other, the limitations of a fatal accident inquiry are understood. An essential feature of the procedure is that evidence is given in public so that the knowledge of those responsible for investigation of the death and the accident leading to the death is shared with the public and in particular with legitimately interested parties, including of course the relatives of the deceased. The inquiry therefore fulfils the important purpose of enlightening those with a legitimate interest as to the cause of the death. It also serves the purpose of ascertaining whether any reasonable steps could or should have been taken whereby the death or the accident might have been avoided, whether any defects in any system of work contributed to the death or the accident and allows the sheriff to describe any other facts relevant to the circumstances of the death.

2 The responsibility and powers of the sheriff in respect of the determination following the inquiry are set out in section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ('the Act' or 'the 1976 Act'). Section 6(1) is in the following terms: '6(1) At the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff shall make a determination setting out the following circumstances of the death so far as they have been established to his satisfaction - (a) where and when the death and any accident resulting in the death took place; (b) the cause or causes of such death and any accident resulting in the death; (c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; (d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and (e) any other facts which are relevant to the circumstances of the death.' 3 However, the limitations of the fatal accident inquiry should also be noted. A fatal accident inquiry is an exercise in fact finding, not in fault finding, and it is not the function of the court to make findings or express opinions on questions of fault or liability, or to attempt to apportion blame. This does not mean, of course, that the evidence led at an inquiry may not disclose fault. In that event, a finding implying or imputing fault is competent. However, the whole object of impartial public inquiry is to get at the truth and to see to it so far as humanly possible that any mistakes discovered, whether they arise through fault or some other reason, are not made in the future.

4 The very wide power given to a sheriff in a fatal accident inquiry must also be exercised with caution, bearing in mind the summary nature of the proceedings and the lack of formal written pleadings. It is no doubt partly at least for this reason that Section 6(3) of the Act provides that the sheriff's determination in a fatal accident inquiry may not be founded upon in any subsequent proceedings.

5 It must be stressed that the findings made can only be based upon the evidence led at the inquiry. It is the duty of the Procurator Fiscal to lead evidence at the inquiry with regard to the circumstances of the death. The other parties who are present or represented at the inquiry are also entitled to lead evidence, if they so desire.

6 This particular inquiry was held under section 1(1)(b) of the 1976 Act in that it appeared to the Lord Advocate that the death of Kaylee Susan McIntosh on 3 August 2007 had occurred in circumstances such as to give rise to serious public concern. The deceased was only fourteen years old when she lost her life. Throughout the inquiry she was mostly referred to by her first name and in this note I have taken the liberty of describing her in the same way.

7 At the inquiry representation was as follows: The Crown by Mr. David Teale, Procurator Fiscal, Stornoway and Lochmaddy; The Ministry of Defence by Mr. Andrew Webster, Advocate and Messrs Morton Fraser LLP, Solicitors, Edinburgh; Mr. George McCallum, Major in the Territorial Army, represented himself. Given that the actions of Major McCallum (as he was referred to at the inquiry and in this determination) were the subject of much scrutiny, and criticism, during the inquiry, it was unfortunate that he was not legally represented. I had been told at a preliminary hearing that legal aid was unavailable to him, but that he could not afford to fund representation from his own resources. The Ministry of Defence decided not to fund separate legal representation for Major McCallum. That was a matter for them, but it could not be said that the Ministry's and Major McCallum's interests in this inquiry were identical.

Derek and Lesley McIntosh, the parents of the deceased, by Mr. Simon Di Rollo Q.C. and Messrs Thompsons, solicitors, Edinburgh.

8 Evidence was led by the Procurator Fiscal from the following witnesses: Cadets * L. N. (aged 14); * Jake Watson; Cadet instructors * John Shaw, adult under officer; * Craig Duncan, sergeant: * Vicky Lorimer, sergeant; * Calum Campbell, lieutenant; * Scott Rose, company sergeant major; * Mark McKee, sergeant; * Charles Milne, lieutenant, now captain; * Fergus Gatt, captain, now major; * Douglas Rodger, sergeant; * James Stewart, sergeant; * David Adams, at the time of the accident major, now captain; * Ian Hay, training safety adviser; * Norman Donald, major, now Colonel Commandant 2nd Highlanders ACF; * David Taylor, at time of accident, Colonel Commandant, now retired; * George McCallum, Major, Cadet Executive Officer.

Coastguards employed by HM Coastguard * Joseph Johnstone, station officer at Benbecula; * Robert Currie, auxiliary coastguard; * Brian Learmont, auxiliary coastguard; * Andrew Mair, HM Coastguard watch officer, Stornoway; Civilian witness * Roderick Campbell, resident of the Uists and a fish farmer; Pathologist * James Grieve, consultant pathologist, Aberdeen; Witnesses who carried out post-accident investigations: * Paul Mara, chief power boat instructor, Royal Yachting Association; * Charles Davey, marine surveyor, Marine and Coastguard Agency; * John Adams, retired lieutenant colonel, Land Accident Investigation Team; Witness as to weather conditions on 3 August 2007 * Donald Mackay, Air Traffic Controller, Balivanich Airport, Benbecula; Police * Detective Sergeant Ian Morrison.

9 The only other party to lead evidence was the Ministry of Defence. They led the evidence of Colonel David Tobey, a senior Army officer in a supervisory role in respect of the ACF.