15/06/04 - Presentation to the Balkwell Family

• The ambulance record shows that the police had declared the scene as a crime scene and also recorded the possibility of foul play.

• The ambulance crew questioned whether there had been a delay between the incident and the 999 call being made

• A number of additional statements should have been taken that were not these include those from ambulance and Fire Rescue personnel as well as other members of the Bromley family.

In relation to the matters raised concerning the ambulance crew it is agreed that the records show the police had declared the scene as a crime scene, however it is not clear whether this was a record of fact or opinion by the ambulance personnel. What is certain is that this is standard practice, officers attending the scene will declare any death as a crime scene unless there is clear evidence to the contrary from the outset. In the case of Lee Balkwell it was not immediately obvious exactly how he had become entangled in the machinery and the possibility of culpability by one or more members of the company was a very real prospect.

Additional enquiries carried out with the ambulance crew have failed to reveal that any of them suspected there to have been a delay between death occurring and the report being made to them. Those that attended state they could not ascertain the time of death primarily because they were concerned that the machinery was unsafe and presented a very real danger to emergency service personnel. This effectively prevented them from carrying out a comprehensive examination of Lee apart from
confirming that he was deceased. The origin of this information in all probability can from an employee of the Fire Brigade who states he was told by a member of the ambulance service. All personnel have been interviewed concerning this matter and have denied this being part of their conclusions.

Mr Balkwell does complain that these statements were not taken during the initial investigation. The initial actions recorded by Detective Superintendent Wilson do include an action to take statements from the ambulance and Fire Brigade personnel. These were not carried out. I can find no record on a subsequent decision not to take these statements and therefore must conclude that this was an oversight on behalf of those in charge of the enquiry. These have now been taken and have not added any further evidence. I feel that these statements should have been obtained as part of the initial inquiry. The decision to carry out any particular line of enquiry would be at the discretion of the SIO and must be proportionate to the enquiry being undertaken.

The absence of the recording of any decision not to take these statements would suggest the matter had been overlooked and that this could be suitable dealt with by way of advice.

During the second investigation the tachograph for the vehicle was submitted for examination. In his statement the scientist notes there were two small movements on the tachograph sheet just prior to 0100 hours. It is evident that the tachograph has been used on more than one occasion. What is conclusive is that the marks made were made just before 0100 hours on either of the days that the tachograph was used. The normal operating times of the vehicle would mean that it was not used at that time of the day to carry out deliveries. It is more probable if the vehicle was being used that its use would be connected with a process such as 'gunning out' the drum.

Therefore I feel the tachograph provides credible evidence that the vehicle was being used just before 0100 hours on 18th July 2002 and that the marks were probably made as a result of the lorry being stalled. Consequently the delay between this event happening and the emergency services being called at 0108 hours is consistent with the explanation given by Simon Bromley. There may well have been speculation at the scene concerning the time delay. This cannot be attributed to any one individual and the only people at the scene qualified to give such an opinion have been interviewed and have no concerns regarding this issue. I am satisfied on the evidence that has been obtained that there was not significant delay in contacting the emergency services

• Inspector Richard Croft had told Mr Balkwell that he had suspected foul play from the very beginning and that it was he who secured the scene and commenced a scene log

In relation to the complaint against Richard Croft. In his interview he states that he made the decision to secure the scene and commence a scene log. He also states that whilst he thought the death had resulted from a tragic accident that persons present at the scene may be culpable regarding the death of Lee Balkwell. However, he does not feature in the chain of events that unfolded that night. Sergeant Hall clearly the first to arrive, it is he who contacted and briefed the Detective Inspector. Once the agreed actions had been decided with the SIO it was Sergeant Hall who made contact to organise that additional work. Inspector Croft does not feature in that chain of events. If he had taken control of the incident to such an extent that others looked to him to make the decision he claims to have made in his interview then decisions made by the SIO would have been actioned through him. My belief is that Sergeant Hall with his CID experience dealt with this matter in its entirety. Whilst Inspector Croft was the most senior officer at the scene of the incident the matter had been referred to a more senior officer at an early stage. These were Officers who specialise in the investigation of crime and who assumed control of the incident.

Clearly the decision to preserve the scene was made but in reality it was probably arrived at during the discussions between Sergeant Hall, Detective Inspector Stevenson and Superintendent Wilson along with a number of other decisions such as not to arrest the suspect and to leave the body in-situ.

• Mr Balkwell had attempted to obtain the identity of the SIO on the scene but he had not been provided with his name

In relation to the complaint made by the complainant concerning the identity of the SIO. It is not clear exactly when the request was made by the complainant for this information or to whom the request was made. It would be a matter of record who the appointed SIO was at any one time and would not be a matter that should have been kept from the complainant. I can find no evidence that Inspector Croft deliberately withheld the identity of the SIO from the family.

• That upon the arrival of a Senior Investigating Officer the matter was taken out of his hands and that it was the decision of the Senior Investigating Officer not to arrest Simon Bromley.

In relation to the decision not to arrest Simon Bromley, this decision is clearly made during a discussion between Detective Inspector Stevenson and Superintendent Wilson and is a matter of documented policy. It would be unusual in the case of a death where the cause was not immediately evident and which had been referred to the 'on call' SIO for an Inspector to make the decision not to arrest the suspect. Such matters would have awaited the decision of the SIO. The decision not to arrest Simon
Bromley was made by Detective Superintendent Gareth Wilson during the early hours of the 18th July 2002.

The powers of arrest in such circumstances are enshrined within the Police and Criminal Evidence Act which will allow an officer to arrest an individual if he has reasonable grounds to suspect that he had committed an arrestable offence. Having carried out such a course of action the detention would need to be authorised in order to secure and preserve evidence or to obtain evidence by questioning. There are, of course, other matters to be considered such as the effect of that arrest on the overall enquiry and whether or not the arrest of the suspect was both necessary and proportionate. It would appear the SIO was satisfied that the available evidence had been preserved and that an arrest was not necessary to ensure preservation.

Furthermore, he had no intention of questioning Simon Bromley until certain procedures had been completed, in particular the post mortem procedures and a scientific examination of the body in-situ. These procedures are time consuming and whilst there are occasions when such enquiries are conducted with the suspect in custody, these are normally confined to those cases where it is felt absolutely necessary, such as a fear the offender may abscond. Having considered the circumstances of the matter I can find no evidence of negligence relating to a failure to arrest the suspect that night.

• Simon Bromley was not interviewed under caution until three weeks after the death of Lee Balkwell and that this delay caused vital evidence to be lost and provided Simon Bromley with an opportunity to prepare his statement.

Simon Bromley was eventually interviewed on the 6th August 2002 some 19 days following the date of the incident. The family liaison log does show that the original date set was 1st August 2002 exactly two weeks after the incident occurred. These delays have been recorded as arising from difficulties in securing the attendance of his Solicitor and are therefore largely outside the control of the Senior Investigating Officer. I can find no evidence to support the view of the complainant that this delay
caused vital evidence to be lost.

All the evidence had been preserved from the outset of the enquiry and any decision made concerning the preservation of evidence would not await the outcome of any interview with the defendant. It could be argued that the delay did provide Simon Bromley with an additional period of time in which to prepare any statement he wished to make in his defence. It is my experience that the defence will not offer any explanation concerning such matters until they have had an adequate time to prepare for an interview. Normally with a suspect in custody, time is provided for the defence to consult with their client and to consider the full implications of the evidence. This will be dealt with in a relatively short period of time. In this case it is clear from the evidence that the enquiry team were not in a position to effectively undertake a challenging interview with Simon Bromley.

The two week period has provided an opportunity for them to gather evidence to prove or disprove the explanation he gave at the scene. The enquiry team felt by the 1st August 2002 they had completed sufficient enquiries to be able to undertake that interview. It can not be ruled out that the delay experienced, some 6 days, may have been a tactic of the defence to obtain more time to prepare for the interview, however I consider that the delay was not excessive and that it would have been outside of the control of the SIO.

• The account given by Simon Bromley is unclear. He stated that Lee had been thrown out of the drum an account which was not accepted by Detective Superintendent Bull. This differs from the account given to the emergency services which Simon Bromley is alleged to have said ' Well he was getting out of one of them (hatches) and it just went, went round on him.'

It would appear that when Simon Bromley is finally interviewed there is some discrepancy in the explanation given. Although untruths told by a suspect can be used to effectively support other evidence they are in themselves ineffective in proving the guilt of that person. The enquiry team would be charged with the duty to search for the truth and in doing so to gather evidence to prove or disprove the involvement in a criminal offence. Despite the fact that the purpose of an interview would be to seek an
explanation from the suspect should he wish to give one, I would still expect any significant alteration in a suspect's account to be challenged in order to clarify exactly what happened.

I would not consider the difference in the verbal accounts given by Simon Bromley to be particularly significant. It is quite possible that he does not know how Lee Balkwell became trapped because he did not witness it, the difference could be the result of speculation, as opposed to lying, on his part. It is clear Mr Balkwell feels that these discrepancies are an indication that Simon Bromley is not telling the truth about the events leading to the death of his son. If this were to be correct his only apparent motive for lying would be that he or another carried out the murder of Lee Balkwell.

There is no evidence to suggest that this was a pre-planned or pre-meditated murder by Simon or any other member of the Bromley family. The most significant point being that no injuries were found on the deceased to show that he was the victim of a crime. This opinion has since been validated by a second Pathologist. It is clear that both were operating an unsafe practice and Simon Bromley would have a duty to provide a safe working environment for his employee, however the neglect in this incident is not sufficient as to amount to an offence of Manslaughter.

• The Police failed to treat Simon Bromley's account as suspicious even though it had changed. In support of this he states that Simon was operating a practice that he knew to be unsafe and that as his employer he had a duty to provide a safe working environment. He also indicates the existence of other evidence which he feels supports this conclusion. The pneumatic kango hammers were outside the drum this indicates that the process had been completed. Lee had contacted his girlfriend that night and had told her that he was getting a Chinese meal. He would not have been using this equipment after eating as the vibrations would have made him feel sick.

• Simon Bromley has suggested that he moved the drum back and forth after the incident. Mr Balkwell feels this was done to disguise another cause of death.

All Officers attending the scene felt that this was a death in which Simon Bromley may have been culpable. They have recognised the requirement by law to provide a safe working environment and have involved the Health and Safety Executive. It is clear that both were operating an unsafe practice but there is insufficient evidence to support a prosecution against Simon Bromley in relation to Lee's death. The conclusions that have been drawn in relation to the events that happened that night are not evidence upon which conclusions can be based in order to decide the level of culpability Simon may or may not have had in Lee's death. It is clear that the kango hammers had been removed from the drum it would speculation that they were removed because the job had been completed. There is still a significant amount of hardened concrete which remains in the drum which would indicate the opposite.

It is clear that Simon Bromley does move the drum in the opposite direction following his discovery that Lee has been trapped. The complainant implies this action was taken in order to cover up a second cause of death. There is no evidence to suggest this is correct. There are no injuries to the body which would be considered as inconsistent with the facts gathered at the scene.

• In relation to the CCTV officers have accepted the account given by Simon Bromley that only one camera was working and have not sought to examine the system for themselves.

Officers have been questioned concerning their views in relation to the seizure of the CCTV evidence. Several Officers have mentioned the seizure of the CCTV evidence. Only Sergeant Hall was involved in the process of seizure. It would be impossible to state definitively whether or not Sergeant Hall seized all the available CCTV evidence that night. He states that taking into account all the circumstances that were presented to him that night he made an initial judgement that the death of Lee Balkwell arose from an accident whilst using heavy machinery.

He recognised that there maybe offences relating to corporate or negligent manslaughter and used his available skill and judgement to arrive at what he thought had taken place. Consequently he begins to collect the available evidence. He did not suspect any member of the Bromley family to be lying about the incident that happened that night and therefore would have had no grounds to search the premises for any further evidence. Such a search could only be carried out using the powers conferred under the Police and Criminal Evidence Act

following an arrest or under the provisions of a Justices Warrant. I am satisfied that the course of action taken by Sergeant hall was both correct and proportionate in the circumstances.

• He feels that the investigation team failed to consider whether the death of Lee had any connection with the alleged' drug dealing activities of the Bromley family. He had specifically asked Martin Oakley whether or not Simon Bromley had been drug tested. He initially said that he had and that he was clean. Martin Oakley later said that he, Bromley, was never tested.

It is clear from the enquiries that have been made that the Bromley family do have a history with the Police. The actions of Detective Superintendent Wilson included background enquiries into members of the Bromley family and that of Lee Balkwell. This is a standard procedure in relation to all such enquiries and is specifically to assess whether any past history has any elevance to the motive or cause of death. In this case I am confident these enquiries would have been taken into account should any motive of death have been discussed.

In relation to Martin Oakley he denied giving conflicting accounts as to whether tests for alcohol or drug consumption were carried out. His recollection was that he was only asked on one occasion and he told the complainant that he would find out the answer. It is clear however this may have been the subject of conversation between the two in which theories would have been discussed and the relevance of those theories to the investigation. There is some evidence to indicate that conflicting accounts may have resulted from the conversations between the complainant and Martin Oakley but there is insufficient evidence to prove that such conflicting accounts were given in a deliberate or negligent manner.

• He feels that the CCTV footage 19:36 onwards indicates what appears to be the handling of large quantities of drugs.

This has been checked by members of the Drug Squad and they felt that it contains not evidence to indicate that large quantities of drugs were being handled.

• The destruction of clothing worn by Lee Balkwell was premature and that this caused vital loss of evidence.

In relation to the last of the matters raised by the complainant, the premature destruction of the clothing worn by Lee Balkwell, it is accepted that this clothing would have been cut from the body during the post mortem procedures and that such clothing was contaminated by blood and cement dust. The continued preservation of the clothing would have depended upon whether or not it was capable of providing evidence relevant to the matters under investigation. It is an accepted fact that Lee Balkwell had been in contact with both Simon Bromley and the cement mixer they had been 'gunning out'.

Examination of the clothing would not have been required to establish that fact. There was no other evidence of the involvement of a third or unknown party and this remains the case after the second investigation has been completed. I therefore must conclude that continued retention of the clothing would not have assisted in furthering the investigation.

• The police failed to obtain records of the mobile telephone used by Lee Balkwell on that night. He feels that these records would be relevant to the investigation.

These have been obtained as part of the second enquiry. I do not feel that they would have been relevant in the initial enquiry. In my opinion they are unlikely to assist in determining the facts concerning what took place on the evening of 18th July 2002

• Inspector Richard Croft who changed his account at the scene and concealed the name of the Senior Investigating Officer

I can find no evidence to suggest that Inspector Richard Croft changed his account of the scene and concealed the name of the Senior Investigating Officer. Having carried out the interview with Inspector Croft I feel that he fails to consider the implications that lay behind what he says. It is conceivable that a similar issue has arisen in his conversation with the complainant which may have resulted in confusion. I am satisfied that if this did occur Inspector Croft did not intentionally or deliberately give false or misleading information to the family. In relation to the allegation raised by the complainant I have to conclude that although I find then unsubstantiated Inspector Croft could benefit from advice regarding the lack of care he uses when he expresses himself.

• Detective Superintendent Bull and Detective Inspector Stevenson in relation to the loss of vital evidence reducing the chances of obtaining a criminal conviction in relation to his son's death, in particular whether their performance amounted to a neglect of duty.

In relation to Detective Superintendent Bull and Detective Inspector Stevenson, it is clear that adequate steps were taken in relation to preserving the available evidence upon report of the incident to Police. There is no evidence upon which I could conclude there was any further CCTV evidence other than that seized at the time of incident. The other issue relating to the failure to reserve evidence would relate to the destruction of the clothing worn by Lee Balkwell. Detective Superintendent Bull does explain quite clearly the reasons behind the destruction. I find that they are both sound and relevant. Consequently I can find no evidence upon which to prove the complaint in this area is upheld.

• Whether there is any underlying reason for the inadequacy of the investigation, in particular whether any of the officers intentionally refused to follow lines of enquiry or in any other way attempted to protect the Bromley family from potential criminal proceedings.

In relation to the lines of enquiry that are documented I find them to be both relevant and adequate given the circumstances of the death. There are issues relating to the failure to obtain statements from other emergency service personnel. In my opinion these should have been obtained and would appear to be an oversight rather than an act of neglect. As I have eluded to previously, such matters could be dealt with by way of advice. There is no evidence that officer in charge of this investigation deliberately refused to follow lines of investigation in order to protect members of the Bromley family.

• He feels that his family were treated with disrespect in that they were given inadequate and inconsistent accounts of the incident and that his concerns were not treated seriously.

It is clear from the investigation that many officers had contact with the complainant in this case. Mr Balkwell has actively sought information from a variety of people. The family liaison logs show the amount of contact with the family during the investigation which would appear prima facie to be adequate. It would be impracticable for officers to record everything that was said verbatim. Therefore it is not possible to conclude whether or not conflicting accounts were given. The example given relating the drug testing of the suspect is denied by the officer. He states they made every effort to keep the family fully informed.

It is a very difficult and demanding job and particularly so in this case because the last few seconds of Lee Life were not witnessed by any individual and are therefore not known. These facts have the subject of much discussion and deliberation during which various theories have been discussed between the Police and members of the family. It is accepted this may have sought to give an unclear and confusing picture, however, if this is what happened it was not intended to be so by the Officers involved.

I can find no evidence upon which to conclude the family were deliberately given inconsistent and misleading facts. The officers concerned genuinely feel that they had a good relationship with the complainant and were disappointed that their efforts appear now not to have had the intended effect. I therefore feel that there is insufficient evidenceupon which to prove the officers deliberately misled the complainant