The father of a lorry driver found dead in a cement mixer nearly two decades ago has lost a High Court challenge against Essex Police over the investigation into his son’s death.
Lee Balkwell, 33, was found with his head and shoulders wedged between the drum and chassis of the machine at Baldwins Farm in South Ockendon, near Upminster in Essex, in the early hours of 18 July, 2002.
His father, Les Balkwell, now in his mid 70s, has spent the last 20 years campaigning for a greater investigation into his son’s death, claiming he was murdered and accusing the police of corruption.
Mr Balkwell brought a High Court challenge against Essex Police over the force’s decisions to close and not reopen a probe, which he claimed were “unlawful” and “irrational”.
At a hearing in London in February, his lawyers claimed his son may have been “deliberately killed” and the scene of his death “staged”.
But in a ruling on Monday, Dame Victoria Sharp, sitting with Mr Justice Bennathan, dismissed Mr Balkwell’s challenge, saying they were “in no doubt” that police decisions over a fresh investigation “had regard to the proper legal tests and to the material facts”.
Dame Victoria said she and Mr Justice Bennathan believed it was “reasonable” for police to conclude that alleged new evidence in the case was “insufficient” to require the investigation to be reopened.
Essex Police described Mr Balkwell’s death as a “tragic accident” at the time, before an inquest in 2008 ruled he had been unlawfully killed.
Following 130 complaints by his father, the Independent Police Complaints Commission (IPCC) – since replaced by the Independent Office for Police Conduct (IOPC) – concluded in a 2012 report that the Essex Police investigation was “seriously flawed” but found no evidence of corruption.
It came after a 2009 to 2010 review by West Midlands Police which made more than 90 recommendations about further action that should be taken.
Essex Police apologised, made admissions and paid compensation to Mr Balkwell’s family over failings in its original investigation.
In 2014, Mr Balkwell’s employer at Upminster Concrete, Simon Bromley, was found not guilty of unlawful killing by gross negligence but convicted of failing to discharge his duty under health and safety regulations.
Kirsty Brimelow QC, for Mr Balkwell Snr, told the hearing in February that he claimed to have “intelligence”, including that his son may have been “punished” over someone else’s “drugs deal”, and wanted senior judges to order a new independent investigation into his death.
Working with private investigators, he secured a report by pathologist Dr Dick Shepherd which allegedly provided evidence that his son was “likely dead before he was crushed”.
John Beggs QC, representing Essex Police, acknowledged the force’s original investigation failings and said an operation by Kent Police between 2012 and 2014 had led to the prosecution of Simon Bromley and “no new intelligence” had been received since its review.
In Monday’s ruling, Dame Victoria acknowledged that Mr Balkwell “suffered the loss of a beloved family member”, adding: “His shock and sense of loss were significantly aggravated by the failure of the defendant to conduct a proper investigation in 2002."
But she said judges concluded that the force had “considered the correct legal principles and engaged with the detail of the fresh evidence in a way that was sensitive to the importance of the case but had regard to the other burdens on the police and the prospects of any successful prosecution”.
Dame Victoria said that Operation Nereus, conducted after the West Midlands Police review, could be classified as an “investigation”, with it involving a team of nine officers completing around 1,000 actions and producing nearly 4,500 documents.
She said the court did not accept it was “irrational” for the police not to reopen the investigation in light of the pathologist’s report, highlighting that three others had produced “contrary” views to it.
Mr Shepherd’s report “did not give rise to any lines of enquiry beyond those already explored at various stages, up to and including Operation Nereus”, Dame Victoria said.
She noted that flaws in the original investigation created “evidential difficulties” with “vital evidence” being lost.
The judges concluded that a senior police officer’s assessment that “there were (and are) no investigative opportunities with any prospect of success” was “a reasonable one”, adding: “As was his conclusion that despite Dr Shepherd’s report, there was no realistic prospect of any further investigation obtaining evidence to meet the evidential stage of the CPS’s (Crown Prosecution Service’s) Full Code Test for murder.”
Dame Victoria said alleged new evidence in the case consisted of “nothing that had not already been considered and explored during the course of Operation Nereus”.
A report by private investigators contained “commentary, supposition, theories and criticisms” that had been dealt with by the police operation, the judge said.
Commenting after the ruling, Det Ch Supt Lucy Morris of Essex Police said: “We know that Lee Balkwell’s death is incredibly painful for his family and they still have questions about what happened to him.
“We know there were failings in the original 2002 investigation and for that we are truly sorry.”
She added: “Whenever new information or potential evidence comes to light, we will always consider and review it to see if there are further investigative opportunities.
“However, sadly, in Lee’s case there has been no information or evidence which has arisen since 2014 which has warranted a new investigation.”