11/01/06 - Letter from James Brokenshire MP to Liam Brigginshaw Assistant Cheif Constable

JAMES BROKENSHIRE MP
Member of Parliament for Hornchurch
23 Butts Green Road, Homchurch RM11 2JS
Tel: 01708 477 825

email: brokenshirej@parliament.uk
www.actionforhornchurch.com

Liam Brigginshaw
Assistant Chief Constable
Essex Police
Chief Constable's Office
Headquarters
Springfield
Chelmsford CM2 6DA

11 January 2006

Dear Mr Brigginshaw,

Death of Lee Balkwell

Further to my letter of 22 December 2005, I have now had an opportunity to review the various papers and documents that have been provided to me by Mr Les Balkwell ("Mr Balkwell") in connection with the death of his son, Lee, in July 2002. These papers highlight certain issues upon which I would be grateful for your comments and input.

As you will be well aware, Mr Balkwell remains dissatisfied with the police investigation into the fatal incident that took the life of his son. In raising these issues, Mr Balkwell is not seeking to be deliberately provocative, but is actively seeking to establish what happened to Lee and to seek what he sees as justice for the death of his son. With this in mind, please would you consider the following matters in the context of your review of this case and the manner in which it has been investigated by your officers.

1. The factual circumstances of the night of 17/18 July 2002

1.1 One of the central issues to this case is identifying from a factual basis what actually happened in the early hours of 18 July 2002. What we can be certain of is that a call was placed to the ambulance service at 01:03 seeking assistance following a fatal incident at Baldwins Farm in Upminster in which Lee Balkwell was trapped by the machinery of a cement mixer. The report undertaken on behalf of Essex Police by Vehicle Safety Research Centre, Ergonomics and Safety Research Institute of Loughborough University dated December 2003 states in its synopsis of the facts of the case that Mr Simon Bromley and Mr Lee Balkwell were working inside of the drum of the cement mixer removing hardened concrete from the inside of the drum using Kango hammers. It is stated that this process was lengthy and at various points during the removal of the concrete, both men were working inside the drum to undertake the task and that:

"each of the men also took turns in exiting the mixing drum to revolve it slightly (using the hydraulic mechanism) to gain better access to the hardened concrete whilst the other remained inside. On this occasion it is thought that Mr Bromley exited the mixing drum in order to revolve it. For the mixing drum to be rotated the vehicle's engine has to be started and running."

This view is also reaffirmed in the "Evidential Presentation" regarding the death of Lee Balkwell where it is stated that "On two or three occasions they stopped drilling, one would exit the drum, start the vehicle's engine and then revolve the drum slowly via the rear nearside control drum controls, whilst the other called out when the next appropriate section to be drilled was in place. This aspect is clearly physically risky and in contravention of recommended and obvious safety precautions."

1.2 I understand that this explanation of what happened on the evening was accepted by the investigating team. In other words that there were multiple occasions when the drum was rotated in order to assist the "gunning out" of the drum. Mr Balkwell contends that this assumption is not borne out by the evidence. In particular: (1) the tachograph of the Iveco lorry comprising the cement mixer; and (2) the transcript of the '999' call made to the ambulance service.

1.3 Mr Balkwell commissioned Tachonet UK to review the copy of the tachograph chart provided to Mr Balkwell by Essex Police. A copy of their letter of opinion dated 16 November 2005 is enclosed with this letter. In their opinion, Tachonet UK state that there was "unexplained powered vehicle activity where there is no vehicle movement nor speed registered" and that "In the period 21:07 through to 00:54 there is no indication of any movement of the vehicle on either velocity trace or in terms of the distance travelled trace... My interpretation of these imaging areas (and therefore the period of time) is that there is no indication of the distance trace accumulating and hence no engagement of the drum moving under power" (paragraph 4.2). The report goes on to state at paragraph 4.3 that"If the engine had been active but not 'in the gear to the drive wheels' then no tell-tale would inform us. Since, as we are instructed, this vehicle could not rotate the ready-mix drum without the engine being engaged (which would have left a stop-start-marking-groups' on the drive trace) we conclude there was no indication of use of the vehicle in the period concerned."

1.4 Mr Balkwell further contends that the transcript of the '999' call to the emergency services at 01:03 on 18 July 2002 also gives no suggestion that the lorry was operated on multiple occasions. It is submitted by Mr Balkwell that the evidence from the transcript suggests that the operation only occurred on one single occasion. In the transcript a person identified only as "Caller 2" but assumed to be Mr Simon Bromley is stated as saying: "Hello, yeah we've gone in the back of a ready mix lorry out and we just- I'm trying to move it round a bit and he's gone to get out the [?] as I've started the lorry up because, the, the handle had moved forward and he's fuckin' got caught under the lorry." Later in the conversation "Caller 2" continues: "He's getting out the back of the ready mix lorry... and then erm, well, we, I was just about to start it to move it round a little bit could really [?] gunning the back out of it, like, you know... and, er, the, obviously the - what, as I've started the motor up... the erm, the lever at the back must have moved forward a bit or something and he's, he's, he was just getting out and it just- the motor went round on him."

1.5 Mr Balkwell contends that the precise details of whether the drum was rotated on multiple occasions or simply on one occasion on or about 1am on 18 July 2002 (as he alleges) is an absolutely critical fact in considering this case. He alleges that this crucial issue was not considered properly by the investigating team who were merely prepared to accept that the drum had been turned on several occasions during the course of the night. Mr Balkwell does not believe that this information was presented to the CPS in their consideration of the case and in reaching their determination as to whether there was sufficient evidence to commence criminal proceedings.

2. Alleged shortcomings in Essex Police's investigations

2.1 One of the principal complaints that Mr Balkwell has in connection with this case is that the investigating team did not, in his opinion, follow through on all of the leads and witnesses that they should have done. In particular, Mr Balkwell believes that various police "actions" were put in place that were not completed. One of these was the interviewing of the crews of the London Ambulance Service (LAS) and the London Fire Brigade who were first at the scene of the incident at Baldwins Farm. Mr Balkwell believes that the information from these individuals at the start of the investigation was crucial, particularly when you take account of the fact that the LAS Patient Report Form makes reference to "foul play."

2.2 When this issue was raised with Essex Police by my predecessor, John Cryer, DS Simon Coxall stated in his letter of 24 January 2005 stated that "evidence relating to the death has been recovered both from ambulance and fire brigade crews attending the scene of death." As far as Mr Balkwell can ascertain from private enquiries, the crew of the London Fire Brigade that attended the scene have never been interviewed by Essex Police to this day, which he sees as a serious shortcoming as he believes that the crews can provide further insight into the case and should have been interviewed as part of this investigation.

2.3 The IPCC Report dated 8 December 2004 makes reference to this in connection with comments on the actions of DS Wilson stating that "We cannot find fault with his actions. He is however to receive advice for failing to ensure that officers under his command carried out his orders in respect of obtaining statements from the members of the emergency services who were present... However the fact that no evidence appears to have been lost by this omission means that we consider formal advice to be sufficient." Despite this finding, on the basis of the information obtained by Mr Balkwell, the fire crew have still to be interviewed despite the IPCC's confirmation that they should have been and notwithstanding DS Coxall's statement that evidence had been recovered.

2.4 Please would you also confirm whether witness statements have been taken from the crew of the London Ambulance Service who arrived at the scene first, as well as the crew of the Essex Ambulance Service.

2.5 In terms of the video tape of the CCTV footage taken from the scene, Mr Balkwell was provided with a copy of the original tape seized by the Police. This copy of the tape was not marked in any way with a descriptive label or indicating any specific catalogue reference. Whilst this may seem a relatively trivial point in the context of such a large and complex investigation, Mr Balkwell still has questions over the completeness of the tape and whether the "master" tape in fact shows other views of the site that neither he nor his solicitors have been able to view on the copy. The lack of any identifying markings has added to Mr Balkwell's unease and I would be grateful if you could confirm that the appropriate steps have been taken. I note that DS Coxall did confirm in a letter dated 3 October 2003 to Mr Balkwell's then solicitors that they had received "an exact copy of the original seized".

3. The nature of the review of the investigation

3.1 Following initial concerns about the adequacy of the initial investigation carried out by Essex Police, DCI Peter Hood wrote to Mr Balkwell on 15 April 2003 stating that the matter was being reviewed by "a team of officers not connected with the original enquiry" to ascertain whether there were any discipline issues committed by the officers involved.

3.2 I am told by Mr Balkwell that one of the investigating officers into Lee Balkwell's case was Inspector Terry Haines. Mr Balkwell understands that one of the officers appointed to carry out the "review" was DI Cliff Haines, whom he believes to be Inspector Terry Haines' brother. I should be grateful if you could confirm if this is the case. If so, please would you confirm whether it is appropriate for officers to be involved in investigations of a disciplinary nature into the actions of close family members. As you can appreciate, even if a matter has been investigated in a full and proper manner, a close family relationship between an investigating officer and a person under review does raise issues of perception about the potential independence and robustness of such investigation.

4. Relationship with the Crown Prosecution Service (CPS)

4.1 In a letter dated 19 August 2005, The Rt. Hon Hazel Blears MP, Minister of State at the Home Office advised me that "Following the conclusion of the full homicide investigation, the Crown Prosecution Service made the decision on 23 August 2002, that there was insufficient evidence to consider a manslaughter charge". If this is correct the CPS's decision was made just over a month after the fatal incident took place. This seems remarkably quick, particularly when:

(A) • the statement from the pathologist, Michael John Heath is dated 7

September 2002; and

(B) the witness statement from the forensic scientist is dated 22 October 2002.

4.2 Please would you confirm when the CPS first took the decision that there was insufficient evidence to consider a manslaughter charge. If the decision was taken on 23 August 2002 as stated in Ms Blear's letter to me, in what way could the "full homicide investigation" have been completed if key witness statements had not been taken by that date? What information was actually given to the CPS to form their view? Whilst I accept that further files of evidence have subsequently been presented to the CPS, if an incomplete presentation of the facts was initially presented to the CPS, you can appreciate that this might cloud the view of the whole case and any subsequent information that was provided. I would appreciate your clarification of this important point, as it could well be that Ms Blears was inadvertently given the wrong date when replying to me. It would also be appreciated if you could confirm the dates of subsequent reviews and determinations by the CPS.

4.3 I understand from Mr Balkwell that Mr Simon Bromley is currently the subject of

separate serious criminal charges and that Baldwins Farm is a significant location in connection with these charges. I should be grateful if you could confirm whether you have taken these factors into account when considering the investigation of this case.

The last information that I have in relation to the status of this case was that Essex Police were preparing a further file for submission to the CPS. I should be grateful for your confirmation on the current position.

Following your review of this letter, it may be appropriate for us to meet with Mr Balkwell. I would be prepared to facilitate this meeting if this would be helpful.

I look forward to hearing from you at your earliest opportunity.

Yours sincerely,
James Brokenshire MP