The Millmore case – a cautionary tale.Print publication
The Environment Act 1995 gives Environment Agency officers wide powers to investigate premises and question individuals in connection with suspected breaches of the act. In this briefing note, Walker Morris explores the Court of Appeal case of Millmore, which considered the convictions of five individuals for failing to co-operate with requests of the Environment Agency. The note also offers advice on the practical steps to be taken for those who may find themselves subject to an Environment Agency investigation.
Environment Agency (the Agency) Investigations
The Environment Act 1995 (the “Act“) contains wide statutory powers for authorised persons to conduct inspections to ensure that there are no present breaches of the Act.
S.108 of the Act contains powers of enforcing authorities and their authorised persons (Powers) to enter any premises necessary for the purpose of examining and investigating, which includes removing articles for further inspection and questioning individuals on site.
S.110 of the Act provides for various offences which may result from failing to enable an authorised person from exercising their powers under S.108. These are as follows:
- you must not intentionally obstruct an authorised person in the exercise of their Powers
- you must not fail to comply with any of the Powers
- you must not fail to provide facilities or assistance or any information or to permit any inspection required by an authorised person in exercise of their Powers
- you must not prevent any other person appearing before an authorised person to answer any questions that they may raise.
An offence under S.110 of the Act carries a maximum sentence of an unlimited fine.
Important points to note
There is no requirement in law that the Agency is required to provide on arrival a letter of authority to members of staff, stating that it is an offence to obstruct an authorised person in exercise of their Powers. Lack of knowledge of this offence will not be a defence.
There is a specific power contained in S.108(4)(j) which enables an Agency officer to require any person who he believes to be able to give relevant information to answer questions in respect of that information. This means that despite having a general legal right to silence, criminal liability for obstruction under S.108(4)(j) of the Act can arise where you refuse to answer question put to you. Informing Agency officers that you have been instructed not to answer questions is not in itself, an offence. An offence will only materialise at the point questions are asked but an answer is refused. There is no requirement for an individual to be cautioned before questioning.
The consent of the occupier of the site is not required to exercise the Agency’s power of entry, nor to remove records for the purpose of copying.
Agency officers are entitled to use force during their investigations if they have a warrant to do so.
Millmore and Others v Environment Agency  EWHC 443 (Admin)
The appellants in this case were five employees of Southern Water Serviced Limited (the “Company“) who were all convicted by a magistrates’ court of offences under S.110(1) of the Act. These convictions arose from the employees’ conduct in connection with various investigations carried out by the Environment Agency into potential breaches of the Company’s obligations under the Act.
All five employees appealed their convictions. The High Court considered their convictions and held as follows:
Facts: Helen Millmore informed the investigators that she had received instructions from the Company’s legal team to stop the Agency and refuse to allow them to remove items from the site. She also informed them that there would be no accompanied visit of the site and that they could not conduct an inspection unaccompanied due to health and safety reasons.
- Held: a distinction was drawn between communicating the position of the Company and positively implementing that position, in which Ms Millmore was only guilty of the former. Her conviction was quashed.
Facts: Carl Smith informed an investigator that he had been instructed by the Company’s lawyer that no documents could be removed from the site. Mr Smith also informed them that they could not walk around the site without legal representation as the Company hadn’t received reasonable notice of the visit. Finally, Mr Smith informed the investigators that he had been asked to request that they leave the site. However, he did allow them to remain on site until they had collected and bagged the relevant articles.
- Held: as with Ms Millmore, since Carl Smith was reporting the position which his employer intended to adopt, rather than giving directions to Agency officers which obstructed the exercise of their Powers, he was not guilty of an offence. His conviction was quashed.
Facts: Peter Rowbottom had initially found and handed site diaries on to Agency investigators that were conducting a site visit. On the instruction of his line manager, he informed the investigator that the Agency could not take site diaries from the site. He informed the investigator that he had been instructed to request the diaries back and to take possession of them – he then took back possession of the diaries and locked them in a cupboard, whilst the investigator was on the phone to his line manager.
- Held: Mr Rowbottom’s actions were clearly intended to prevent officers from exercising their Powers. His conduct went beyond simply refusing to assist, as he took a positive step to remove the diaries and hinder the investigation. There was nothing in section 108(4)(k) which made it a precondition to removing documents that the officer concerned had considered whether it was reasonably necessary to do so. The fact that the officer had not done so did not render his actions unlawful. The offence under section 108(4)(k) of the Act, of intentionally obstructing officers of the Agency in the exercise their Powers to enforce provisions of the Act, was therefore upheld.
Robert Parker and Matt Annetts – upon arrival, the Agency produced a letter of authority to Mr Parker, detailing their Powers and the information the officers were seeking to obtain. Mr Parker had initially instructed Mr Annetts to assist Agency officers and he therefore began answering questions put to him by the Agency officers. However, after consulting with the Company’s solicitor, he then instructed Mr Annetts to cease assisting the Agency and to remove bagged diaries from the possession of the Agency officers and to lock them in his van, which he did so. Mr Annetts informed the Agency that he could no longer answer their questions, and no further questions were put to him.
- Held: both convictions under offences under section 110(1) of the Act were upheld. The mere fact that Mr Annetts had not seen a letter of authority did not entitle the judge to exclude evidence of his obstructive actions. The judge left open the question of this being used as a defence, but concluded that such a defence was not available on appeal. It was ruled that there is no requirement to issue a caution prior to questioning under the Police and Criminal Evidence Act 1984. The mere fact that the officer may or may not have had questions in their mind after Mr Annetts refusal to answer anything further, did not constitute an offence; as the questions were not, in fact, raised.
In this appeal the Judge drew a clear distinction between acts and omissions when it considered what it meant to “obstruct”. To “obstruct” was interpreted broadly to mean to prevent or make it more difficult for an Agency officer to exercise their Powers. The Judge in the appeal case took a benevolent view, determining that deliberate acts were considered obstructions but failures to act i.e. omissions were not. An omission was considered only to be an obstruction if the individual was under a duty to act and they did not do so.
In respect of questioning, a key distinction was drawn between stating that questions would not be answered and refusing to answer questions put to you. It was held that an offence would only arise in the latter occasion. This seems to be a logical determination which is consistent with the interpretation of “obstruction”.
The above points should be given careful consideration to all those who are subject to investigations by the Agency, which includes anyone who is on site at the time of such an inspection. The fact that Agency officers are not under an obligation to caution or provide a letter of authority means it is important to understand the extent of the Agency Powers and the offences that obstruction of these Powers can give rise to.
Comply with Agency requests. At the point of refusal an offence is committed. Under the wording of the Act, anything which makes the exercise of the Agency’s powers more difficult is considered “obstruction”. Stalling tactics such as “waiting for legal advice” before answering questions specifically put to you may still be considered obstruction.
Ensure to request records of information taken. Although you should not obstruct the Agency from taking information/samples offsite, it is reasonable for you to request copies/duplicates of the information/samples taken. This will be important at the point of forming a defence against the case the Agency may bring against you or the company in respect of the alleged breaches of the Act.
Make notes of conversations and conduct of the Agency officers. Agency officers have very wide powers under the Act, as detailed above. However, Agency officers are still subject to regulations and their own Code of Conduct. If you believe officers to be acting in an unduly heavy-handed manner or outwith their powers then this should be noted and reported to the relevant body.
In house lawyers – beware. Employees and/or the company cannot shield themselves from prosecution because they acted on your advice. As stated, the maximum penalty for offences under S.110 (1) is an unlimited fine. For a medium business with a turnover of £20m-£50m, fines can be expected in the region of £400,000 to £1m.
Whilst this note has been produced for information purposes and should not be regarded as legal advice, the Walker Morris Environment team would be happy to assist you if you require any specific advice or training about Environment Agency investigations.