Half-sister of Clutha helicopter crash pilot refused permission to participate in fatal accident inquiry

Evelyn Mitchell argued that her involvement in the FAI would be “just and reasonable”, but Sheriff Principal Craig Turnbull ruled that while she did have an “interest” in the proceedings, her participation would not “further the purpose of the inquiry”.

Glasgow Sheriff Court heard that the applicant had the same mother as David Traill, who was the pilot of the helicopter at the time of the accident on 29 November 2013 in which 10 people died, when a Eurocopter (Deutschland) EC135 T2+ helicopter, registered as G-SPAO, then carrying out operations on behalf of Police Scotland, crashed into the Clutha Bar in Stockwell Street, Glasgow.

‘Just and reasonable’

The court was told that the applicant was adopted in or around 1961, when she was approximately 18 months old.

She had no contact with either her mother or her younger half-brother until in or around 1985, when she and her three children began living with her mother, Mr Traill, her mother’s then husband (Mr Traill’s father) and her step-brother (Mr Traill’s brother) - an arrangement which subsisted for approximately six to eight months before the applicant secured accommodation for herself and her children.

Mrs Mitchell then maintained regular contact with her mother and Mr Traill until in or around 1991, but then re-established contact with Mr Traill, via Facebook, in or around the end of 2011 or the beginning of 2012.

She then recommenced contact with him initially by telephone and thereafter they communicated regularly with each other by telephone and Facebook messages until Mr Traill’s death in November 2013.

However, in the hearing of her application, the applicant’s solicitor confirmed that Mrs Mitchell had not seen Mr Traill since 1991 - some 22 years prior to his death.

The applicant’s position was that her participation in the inquiry would be “just and reasonable in the circumstances” and would “further the purpose of the inquiry”.

She contended that it would allow her to “actively participate” in the inquiry process; to become aware of the circumstances of her late brother’s death; and would allow her to consider and, if appropriate, “make proposals as to how similar circumstances can be avoided in the future”.

In that regard, the applicant - who has separately raised proceedings against Babcock Mission Critical Services Onshore Limited (the operators of the helicopter) in which she is seeking reparation for the loss of society of her late brother - would be able to participate and contribute as a sister of the half-blood of Mr Traill and to give a “family perspective” upon matters.

Mrs Mitchell recognised that Mr Traill was engaged to be married at the time of his death, but argued that his fiancée, the interested party, Dr Lucy Thomas’s knowledge of Mr Traill was ”much more recent” than hers.

The applicant submitted that she would be able to contribute to the inquiry by speaking of her experience of Mr Traill’s “way of life, frame of mind and such like”.

Application ‘without merit’

The court observed that the cumulative effect of section 11(1)(e) of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 Accident Act and rule 3.5(2)(a) of the Act of Sederunt (Fatal Accident Inquiry Rules 2017) was that, to be permitted to participate in an inquiry, an applicant must have an interest to participate and that participation must further the purpose of the inquiry, but held that the applicant’s arguments were “without merit”.

In a written opinion, Sheriff Principal Turnbull said: “It is difficult to conceive of circumstances in which any family member would not have an interest in an inquiry into the death of a relative. I am satisfied that the Applicant has an interest in this inquiry. It is, however, notable that the Act limits intimation to only one individual (see section 11(1)(a) – (c)). There are obvious and understandable reasons for this.

“The underlying principle of the legislation is that, ordinarily, only one family member will be permitted to participate in the inquiry. In this inquiry, in relation to the late Mr Traill, intimation was made upon his fiancée, the interested party, Dr Thomas, who has given notice of her intention to participate in the inquiry.

“In such circumstances, having regard to the underlying principle, in my view there would need to be compelling reasons to permit more than one family member to appear in an inquiry. The problems which might be associated with such a course of action are brought into sharp focus in an inquiry such as this one in which there are a significant number of deceased persons.

“I regret to say that the arguments advanced in support of the application are without merit. They do not set out a basis upon which it could be legitimately inferred that the applicant’s participation would further the purpose of the inquiry, namely, (a) to establish the circumstances of the death; and (b) to consider what steps (if any) might be taken to prevent other deaths in similar circumstances. The application singularly fails to address both aspects.

“The applicant had not seen the late Mr Traill for approximately 22 years at the time of his death. Her application discloses nothing in relation to the late Mr Traill’s ‘way of life, frame of mind and such’ that might assist the purpose of the inquiry.

“The solicitor for the applicant was unable to expand upon this contention when making submissions in support of the application. In any event, the interested party is clearly far better placed to comment upon such matters. I am not satisfied that the applicant’s participation would further the purpose of the inquiry.”

The applicant has raised proceedings against Babcock Mission Critical Services Onshore Limited (the operators of the helicopter) in which she seeks reparation from them for the loss of society of her late brother. The action is sisted until 23 February 2019. Issues of liability and quantification are still to be resolved.