A PATHOLOGIST who concluded a man found crushed beneath a cement mixer in the dead of night died in an accident has dismissed a report from a peer which suggested it was more likely a murder.
Dr Ben Swift was one of three pathologists who worked on the investigation into the death of Lee Balkwell, 33, in 2002, who all concluded he died in a tragic industrial accident while drilling out drying cement at close to 1am.
In December fellow pathologist Dr Richard Shepherd produced a report that said it was more likely the scene was "staged" to look like an accident.
Lee's father Les Balkwell has always suspected there was foul play involved in his son's death and has hired private investigation firm TM-Eye to investigate the case.
Mr Shepherd had been asked by TM-Eye to review the case and previous pathology findings.
STAGED: Richard Shephered thinks the scene could have been staged (BBC)
He concluded the accident as described simply could not have happened and there was not enough blood at the scene if he had been alive when he was crushed.
He believes Mr Balkwell was likely to have been dead when his head was placed into a small inspection hatch while the drum was rotated to crush him.
Mr Shepherd's report was sent to Essex Police, who asked Mr Swift to respond to his observations.
In a cutting statement seen by Essex News and Investigations, he dismissed the report as an "opinion" with "no evidence" provided to support it.
Mr Swift wrote: "I was provided with a copy of the report produced by Dr Richard SHEPHERD, (dated 19th December 2019), though I was aware of the conclusions that he had reached through national media releases in mid-July 2019.
"Indeed, I understand he was able to reach his conclusions before he had received all the materials for consideration in this complex case or examined the vehicle in question.
NO EVIDENCE: Dr Ben Swift dismissed the report as an opinion with no evidence (EHAAT)
"I would note that Dr SHEPHERD provides no novel point of view that I, or others, have not already considered over the many years of involvement in this case.
"Therefore, not wishing to repeat previous reports and statements that I have given on the case... I would only comment that Dr SHEPHERD’s report includes several bold statements (literally, given his font choice).
"Included is the statement of 'very strong evidence of staging of the scene in an attempt to make Lee’s death appear to be an accident,' and yet he provides none of this supposed evidence to support his claim; he provides only his opinion, which he is equally entitled to."
Essex Police had said it would get Mr Shepherd's report peer reviewed and it was expected this would be done by independent pathologists, but this has yet to happen.
SCENE: A drill can be seen outside the mixer near Mr Balkwell's leg which is visible (Essex Police)
Simon Bromley, 50, Lee's employer at the time, has consistently maintained the pair were each using Kango drills and spades to break and remove dried cement from inside the drum.
He said in interview they wore gloves and dust masks and worked with an electric light.
Mr Bromley says it was while he left Lee inside the drum, so he could slowly revolve it a bit to reach more cement, that it malfunctioned, turning more quickly than expected and Lee was either ejected from the hatch at that point, or had been inadvertently trying to climb out of it.
Police and health and safety officials, who attended the scene at Baldwins Farm industrial area in South Ockendon, Essex, investigated it as such an accident.
Due to botched police inquiries it took 12 years to come to court, when, in 2014 Mr Bromley was cleared of gross negligence manslaughter, but convicted of the health and safety offence of failing, as an employer, to ensure Lee's safety.
Mr Shepherd wrote: "I note that despite the reported use of hammer drills, shovels and possibly lights inside the drum, by both Simon Bromley and Lee Balkwell, none were present inside the drum.
"No gloves were present on Lee Balkwell's hands... no masks were seen on his body, in the drum or in or around the lorry."
He concluded that, because Mr Balkwell was decapitated inside his skin, due to the major arteries involved there would have been a huge amount of blood at the scene if he was alive at the time.
He wrote: "None of the examinations of the scene showed any evidence of significant blood loss. No blood drop, spray or splash is seen in any of the photographs of the scene around, or beneath, the lorry.
"I must conclude that the death of Lee Balkwell must be considered to be very highly suspicious and that there is very strong evidence of staging of the scene in an attempt to make Lee's death appear to be an accident."
Mr Swift said his statement was brief and he did not respond directly to any of Mr Shepherd's observations, because he was concerned anything he said may be seized upon by Mr Balkwell.
COMPLAINT: Les Balkwell made a complaint to GMC about Ben Swift
He added: "By way of full disclosure I would wish it known that, the last time that I provided an independent, unbiased opinion upon this case, I was referred to the General Medical Council by the father of the deceased and an associate.
"Although the complaint was dismissed immediately as being without basis, I am obviously concerned that any further opinion that I may provide on this case that does not agree with the bereaved party’s point of view might result in a similar attempt to discredit me or my opinion."
Mr Bromley, who has stuck to his account from the outset, has not responded to a number of requests for comment on the position of the tools.
Early investigators never pinned down Mr Bromley about the position of the equipment, but in a statement he made ahead of the inquest, he said he could not remember how the equipment ended up where it was.
He has never given an interview about the death, but in 2012, after Mr Balkwell held a press conference making claims of foul play his dad, Simon Bromley, 72, said he was sick of insinuations of murder.
He said at the time: "This was a terrible, tragic accident.
“Lee was like one of the family. He was a great loss. Simon felt terribly guilty. It made him ill. He would cry his eyes out about it. He said he wished it had been him and not Lee who died.”
A new High Court bid was launched by Mr Balkwell in 2018 in a bid to force the police to reopen the case, but this was on hold while Mr Shepherd prepared his report.
No date for an application hearing has been set.
An Essex Police said: "Due to ongoing legal proceedings calling for a judicial review we will not be commenting any further at this time."
Essex News & Investigations Opinion
MYSTERY: Under Simon Bromley's account how could tools have been outside the mixer? (Essex Police)
Dr Ben Swift said in his statement that Dr Richard Shepherd had provided no evidence to support any of his findings.
However, in his statement he made no attempt to counter any of his specific suggestions in his lengthy report.
One thing that stands out are Mr Shepherd's observations on the positioning of the drills and spades.
If Simon Bromley's account is to be believed it is not possible for the drills, spades and light to have been outside the mixer drum - they would have still been inside with tangled wires.
No one, including Mr Swift has ever been able to offer any form of explanation as to why the equipment was found outside the mixer, and not inside the drum, as clearly shown in Essex Police scene photographs.
While it was right for Dr Swift to be allowed to respond to the Shepherd report, it is clear Essex Police should have got independent pathologists to peer review it.
It is also clear this case needs to get in front of a High Court judge as soon as possible so someone with that level of authority to get Essex Police to explain once and for all why the investigation took the path that it did when the force knew where the tools were found from the outset.