R (on the application of Leslie Balkwell) v The Chief Constable of Essex Police
| Jurisdiction | England & Wales |
| Judge | Dame Victoria Sharp, P |
| Judgment Date | 30 May 2022 |
| Neutral Citation | [2022] EWHC 1288 (Admin) |
| Docket Number | Case No: CO/3118/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1288 (Admin)
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Mr Justice Bennathan
Case No: CO/3118/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Kirsty Brimelow QC (instructed by Edmonds Marshall McMahon) for the Claimant
John Beggs QC and James Berry (instructed by Essex Police Legal Services) for the Defendant
Hearing dates: 3 rd February 2022
Approved Judgment
Introduction
This is the judgment of the Court.
The claimant, Mr Leslie Balkwell is the father of Mr Lee Balkwell.
In July 2002, Mr Lee Balkwell (Mr Balkwell), then aged 33 was working for Upminster Concrete, an unincorporated business run by Simon Bromley from Baldwins Farm at Upminster in Essex. Mr Balkwell had worked from time to time as a driver, delivering mixed cement. Baldwins Farm was also the home of Simon Bromley and his father David Bromley. In the early hours of 18 July 2002, a ‘999’ call was made from Baldwins Farm. When the emergency services arrived, they found the body of Mr Balkwell trapped within the machinery of a Ford Iveco Hymix cement mixer lorry (the lorry), his head and shoulders wedged between the drum and the chassis.
A police investigation into Mr Balkwell's death was commenced (the original investigation) and a file submitted to the Crown Prosecution Service (the CPS). In August 2002, the CPS determined there was insufficient evidence to charge Simon Bromley with gross negligence manslaughter. Numerous failings in the original investigation were subsequently identified by the Independent Police Complaints Commission (the IPCC) following complaints against Essex Police made by the claimant. The IPCC characterised the original investigation as seriously flawed.
The claimant subsequently commenced proceedings against the defendant in the Queen's Bench Division under section 7 of the Human Rights Act 1998, for breach of its investigative obligations under article 2 of the European Convention of Human Rights (the Convention). The defendant admitted liability in those proceedings; he accepted that the original investigation was ineffective for the reasons given by the IPCC and that Essex Police had failed to comply with the article 2 investigative obligation. He apologised to the claimant and paid him damages.
The claimant now brings this claim for judicial review, in respect of the defendant's decisions to close and not to re-open the criminal investigation into the death of his son. The claimant contends that these decisions were irrational, and breached the defendant's investigative obligations under article 2 of the Convention — beyond the breaches admitted in the Queen's Bench action referred to above. Though the current claim relies on articles 2 and 3 of the Convention, it is common ground that for present purposes it is sufficient to refer to the investigative obligations under article 2.
The claimant has a committed belief that his son was murdered; he believes that he was violently attacked and killed by Simon Bromley and/or others, and that the “accident” in which he died was staged. He does not accept that there has ever been any effective investigation into the death of his son. In summary however, the substance of this challenge is that the emergence of fresh evidence has given rise to a duty to re-open the original criminal investigation that took place. The claimant also alleges that there are several avenues of investigation which have not been explored satisfactorily. Accordingly, it is said that the defendant's decisions not to re-open the criminal investigation, or conduct a fresh investigation are irrational and in breach of the police's obligation to investigate suspicious deaths under article 2 of the Convention. Accordingly, he now asks the court to quash the impugned decision(s) and to order an effective investigation.
The defendant's case is that the impugned decisions are rational. The investigations undertaken following the original investigation have satisfied the requirements of article 2 and the claimant does not come close to surmounting the very high hurdle for challenging police decisions with respect to investigations. Further, while new information/evidence can revive an article 2 investigative obligation, the information/evidence presented by the claimant did not do so, or it if it did, the defendant complied with his obligations, by taking such further steps as were reasonable in the circumstances. It is common ground that the original investigation into Mr Balkwell's death was unsatisfactory. Since the original investigation however, the defendant arranged for a separate police force to conduct Operation Nereus, a major investigation conducted between 2010 and 2015 which resulted in a file being submitted to the CPS and the prosecution of Simon Bromley for the gross negligence manslaughter of Mr Balkwell. The professional assessment of the defendant's senior officers in their impugned decisions was, and remains, that in the light of the very extensive investigations to date, and gaps in the evidence that can never be filled, there is no realistic prospect of Mr Balkwell's death yielding evidence that would enable the CPS Full Code Test to be satisfied for a charge of murder, when the state of the evidence is considered as a whole.
The proceedings
The proceedings have a long and convoluted history.
The application to apply for judicial review was issued on 8 August 2018. The claim as originally formulated, challenged the defendant's decision in a letter dated 26 April 2018. In that letter, Assistant Chief Constable Downing, the Head of Kent and Essex Police Serious Crime Directorate, said in summary, that he did not consider a further investigation into Mr Balkwell's death was justified and the investigation into Mr Balkwell's death should be closed. Thereafter, the claim was stayed by consent or by orders of the court, for various periods, at the claimant's request. This was to enable the claimant to obtain further disclosure from the defendant and to facilitate access to the lorry by Dr Richard Shepherd (a forensic pathologist instructed by the claimant) so that Dr Shepherd could produce an expert report. On 29 November 2018, the defendant refused to re-open and conduct a fresh investigation into Mr Balkwell's death after the claimant provided it with a witness statement dated 1 August 2018 from the managing director of the company that manufactured the lorry (Mr Nicholas Humpish). On 10 January 2020, the claimant disclosed to the defendant a report from Dr Shepherd, following which, on the 6 July 2020, the defendant made a final decision confirming its decision “not to request a fresh investigation”. Following this final decision, the action was revived. Amended Grounds were served on 7 August 2020 in which it was said that, whilst the claim continues to challenge the 26 April 2018 decision, the grounds were “amended to update the detail of the material considered (and reconsidered) by the defendant which underpinned the 6 July 2020 not to re-open…” the investigation into Mr Balkwell's death. On 23 July 2021, permission to apply for judicial review was granted by Dove J.
In the absence of a formally pleaded claim relating to the decision of 29 November 2018, there is some dispute as to whether we are concerned as the claimant contends, with three decisions or, as the defendant contends, only with two (where it is also said that the decision of the 6 July 2020 was a fresh decision, replacing that of 26 April 2018). Nothing turns on this issue for the purposes of our decision on the merits however in circumstances where the decisions sequentially evolved from one to the next and where the principal focus of the parties has been on the final decision of 6 July 2020.
The material before the court
We were provided with a large volume of evidence for the purposes of this hearing. The defendant served its amended detailed grounds of resistance and its evidence in support on 13 September 2021. Directions made by Dove J gave the claimant permission to serve evidence in reply. That evidence was served on the 7 December 2021. It consists, in the main, of material which is similar to that already placed before the court such as extensive commentary on other evidence. It also includes a statement from the claimant explaining amongst other things, the impact that the death of his son and subsequent events has had on him and his family. Most of this further evidence is objected to by the defendant. Several reasons are given. First, because it does not constitute reply evidence, properly so called; secondly, because it is not reasonably required to resolve this claim and thirdly, because it contains what purports to be expert evidence, which is no such thing, and for which no permission has been given under the Civil Procedure Rules. Further, the late provision of such a substantial body of evidence is, it is said, unfair, and puts the defendant in considerable difficulties in addressing its substance at the hearing.
In our view, there is substantial merit in each of these objections. The material served by the claimant in reply seems to have been put in without consideration of the terms of the Order of Dove J or of issues of admissibility or relevance. However, we considered all of the material de bene esse, and looking at the matter pragmatically, we do not consider it is necessary to rule formally on the objections made for the purposes of resolving this application for judicial review. It is sufficient to say that in arriving at our conclusions, we have had regard to all the material placed before us.
The fatal event
Simon Bromley's account of the...
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