Obstructing the regulator: a rare judgment

United KingdomScotland

This article relates to appeals by a number of employees following their convictions for obstructing Environment Agency officers in the exercise of their statutory powers of investigation. Judgment in the appeals was handed down at the end of January 2019. As there are very few judicial cases of this nature, judgments on appeal are very rare. This rarity itself raises interest. The facts of these cases also provide a useful reminder of what is expected of those facing regulators, and what might constitute “crossing the line” into obstruction.

Whilst theses cases involved obstructing Environment Agency officers, the legal powers under which these officers were operating apply also to officers of Natural Resources Wales, the Scottish Environment Protection Agency and local authority EHOs. The principles will extend directly to dealings with these regulators, and indirectly to dealings with other regulators.

Sections 108 and 110 Environment Act 1995

Section 108 sets out the investigatory powers provided by Parliament to environment related regulators, including the Environment Agency, in the exercise of certain of their functions. These powers are fairly broad but not surprising. Section 108(4)(j) obliges persons to answer questions put by the regulators and to sign a declaration of truth of such answers. Section 108(4)(k) empowers the regulators to require the production of, and to take copies of, records. The consent of the holder of the records is not a requirement to the exercise of this power.

Section 110(1) provides that it is “an offence for a person intentionally to obstruct an authorised person [officer of the regulator] in the exercise or performance of his powers or duties”.

Employees

Five employees (referred to by the initials M, S R, P and A) of Southern Water were convicted of obstruction under Section 110(1). They appealed their convictions.

M and S – convictions quashed

The first instance judge made a finding of fact that M had been instructed by the Company’s legal team to prevent the Environment Agency officers from removing documents. She communicated the Company’s position to the officers but did not physically obstruct the officers. Here a distinction could be drawn between merely reporting the Company’s position, or crossing the line by implementing that position. The judge could have drawn an inference that M had so crossed the line, but did not express that inference. Nonetheless, M was convicted on the judge’s conclusion that M had failed to assist the officers.

On appeal, M’s conviction was quashed for a number of reasons. There was no finding of fact that justified the lower court’s conclusion or that M obstructed the officers. In terms of assistance to regulators, the appeal court recognised that an omission to act may constitute an offence under Section 110(1), but only if the individual involved was under a duty to act (and this was not the case in respect of M).

S was present on two visits by officers to two different sites. S stated on one visit that he had been instructed that no documents were to be removed and requested the officers to leave. However he did allow the officers to remain and bag exhibits. On another visit, S said that he wished the Company’s solicitor to be present. He also requested the officers to leave, stating that it was the view of the Company’s solicitor that the officers should leave.

Whilst the lower court convicted S, the appeal court was influenced by the absence of a clear finding of fact that S had crossed the line by giving effect (by act or omission) to the Company’s instructions to him, rather than merely communicating those instructions to the officers. In these circumstances, the appeal court quashed the conviction.

R – conviction upheld

In terms of this employee, the first instance judge found that he had given site diaries to the officers, but was subsequently instructed by a manager of the Company to request that they be handed back, which they were and R then locked them in a cupboard. When the officers returned later, R stated that he had been told not to let the officers on site (the gates were locked).

The first instance judge found that R had obstructed the officers and the appeal court agreed. Therefore R’s conviction was not quashed.

P and A – mixed outcome

In terms of another visit by the officers, the first instance judge found that P instructed A to remove site diaries from the officers and to lock them in a van. A did this. The first instance judge held that this was obstruction by both P and A. The appeal court agreed and therefore these convictions remained.

A had also been convicted in the lower court of another obstruction. A had answered some questions put to him by the officers, but on P’s instructions A refused to answer any further questions. The judge held that A’s refusal amounted to an obstruction. The appeal court disagreed with this because it had not been evidenced that A had been required by the officers to answer such questions (and here we assume that, in terms of the questioning, the officers had not raised their questions under their statutory powers, but rather were simply asking questions). As a result, this conviction was quashed.

Comment

The report of the case ([2019] 1 WLUK 361) does not set out any detail on the background of the investigation by the Environment Agency. This was probably not relevant to these actual convictions, but from a learning perspective it is a pity because the background might shed some light on why the relationship with the Environment Agency officers appeared to be poor. Nonetheless, the case provides an example of what can go wrong. Whilst a number of the convictions were quashed nevertheless the employees had to go, twice, through the legal process with all the inherent uncertainties and stresses.

Like many cases, this one also raises questions which are not addressed. In particular, the case report does not extend to whether the Company itself, or those persons in management who instructed the employees, might be said to have obstructed the Environment Agency officers.