R (on the application of Leslie Balkwell) v The Chief Constable of Essex Police

A police decision to close or refuse to reopen a criminal investigation is reviewable, but the court will intervene only in rare and exceptional cases, recognising the police’s operational discretion and expertise.

The investigative obligation under European Convention of Human Rights article 2 is an obligation of means, not of result. Fresh credible evidence may revive the obligation, but the required steps depend on the circumstances and must not impose a disproportionate burden. The authorities may consider whether further investigation has a realistic prospect of producing sufficient evidence to charge an identifiable person. An earlier breach does not create an open-ended duty where a later effective investigation has addressed the relevant investigative opportunities.

The claimant challenged decisions by the Chief Constable of Essex Police to close and not reopen the investigation into the death of his son, Lee Balkwell, in 2002. Essex Police admitted that the original investigation breached the investigative obligation under European Convention of Human Rights article 2 and paid damages.

A later investigation by Kent Police, Operation Nereus, reviewed the available evidence, pursued further lines of inquiry and led to Simon Bromley’s prosecution for gross negligence manslaughter. He was acquitted of manslaughter but convicted of a health and safety offence. The claimant relied on further material, including reports from TM Eye and Dr Shepherd, and argued that the investigation had to be reopened. The central issues were whether Operation Nereus was an effective investigation, whether the later material revived the article 2 obligation, and whether refusal to reopen was irrational.

1. The claim was dismissed. The decisions not to reopen the investigation were rational and were not shown to be among the rare and exceptional cases warranting judicial intervention.
2. The description given to Operation Nereus was not determinative. Its substance showed an investigation: previous evidence was revisited, new lines of inquiry were explored, witnesses were interviewed, experts were instructed, the Crown Prosecution Service was consulted, a file was submitted, and criminal proceedings followed. The operation therefore amounted to an effective investigation rather than a mere review.
3. The police have a broad discretion to decide whether to investigate, what steps to take, and whether to continue or close an investigation. Courts must accord substantial deference to those operational judgments. The claimant had not established irrationality in the decisions of April 2018, November 2018 or July 2020.
4. The article 2 obligation is an obligation of means only. It does not guarantee a prosecution or conviction. A further obligation may arise where credible or plausible fresh evidence casts doubt on the original investigation, but the nature and extent of any further steps depend on the circumstances. The authorities may consider the prospects of a successful prosecution and must avoid imposing an impossible or disproportionate burden.
5. The admitted breach concerning the original investigation did not create an open-ended continuing obligation. The relevant question was whether the material provided after Operation Nereus revived the investigative obligation. Most of the material repeated matters already considered. Dr Shepherd’s report added expert opinion but did not identify investigative opportunities beyond those already explored, and it conflicted with the detailed evidence of other pathologists.
6. The court endorsed the evidential sufficiency approach in Al-Sadoon. It was proper to ask whether further investigation had a realistic prospect of obtaining sufficient evidence to charge an identifiable person with murder. The decision-maker reasonably concluded that it did not. Even if the obligation had revived, the defendant’s consideration of the material and further consultation with Dr Swift satisfied article 2.

The judgment describes a first-instance judicial review claim. Permission was granted by Dove J on 23 July 2021. The Divisional Court dismissed the claim on 30 May 2022.