The High Court has recently ruled on an area of law which is very sensitive for employees of regulated operators – just what are your rights and obligations when approached by pollution control enforcement officers from such as the Environment Agency or a local authority?  At what point, can you cross the line into criminal behaviour, just by doing your job?

In a recent case – Millmore v Environment Agency [2019] 1 WLUK 361– 29thJanuary 2019, the High Court ruled that an omission to act could constitute obstruction if the accused person was found to be under a duty to act, but that you have to draw a distinction between an employee who has merely reported what their employer has told them and an employee who has taken active steps to obstruct the authorised person.

Section 108(4) of the Environment Act 1995 provides an authorised person of the EA and others with investigative powers, including the power to require any personwhom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation, to answer such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of his answers. There is the further related power to require the production of any relevant records. Under section 110, it is an offence to fail to comply with these provisions.

The case concerned employees of Southern Water caught up in an investigation by the Environment Agency, following which five of them were prosecuted after the EA officers complained of a lack of cooperation and “conduct calculated to frustrate their inspection”. The facts, and the High Court’s response to them, are instructive in their ‘everyday’ nature, reflecting plausible scenarios of human behaviour under unusual and stressful situations.

When the EA officers were looking for documents, one employee stated that the company’s legal team had instructed her to prevent them from removing items. She had communicated the company’s position, but she had not physically obstructed the officers. The High Court ruled that there was a distinction between merely reporting the employer’s position and conduct implementing that position, and in merely communicating the company’s position, the employee had not crossed that line and her conviction was quashed.

Another employee had handed over site diaries to the EA officers, but his manager had then instructed him to request that they hand them back, at which point he then locked them in a cupboard. When the officers later returned to the site and the gates were locked, the same employee refused them entry, stating that he had been told not to let them in. This time, the High Court ruled that his actions did constitute an obstruction under section 108(4). His conduct had gone beyond failing to assist or to refusing to hand over records, as he had clearly prevented them from exercising their powers.

Another employee informed the officers that the company solicitor had told him not to let the diaries leave the site, and that employee instructed a fellow employee to remove the diaries from an EA officer and to lock them in a van, which he duly did. In this instance, the Court ruledthat A had not intentionally obstructed the officer in his response to questioning, but that locking the diaries in the van was plainly an obstructive act, as was the instruction to that effect.

Another employee had stated that he had been instructed that no documents were to be removed. He had requested that the EA officers leave, but he allowed them to remain until they had retrieved all of the exhibits. At another site, the same employee had told visiting EA officers that he wanted the company solicitor to be present and, explaining that it was the company solicitor’s view, requested that the officers left. The Court ruled that there was no clear finding that this employee had crossed the line between merely reporting his employer’s position and giving effect to its instructions obstructing the exercise of the officers’ powers, and his conviction was quashed.

The case demonstrates the fine line in such cases and the dangers of taking a defensive line against officers. The golden rule seems to be – no harm in reporting your company’s stated position, but you must think very carefully about taking specific actions which could be construed as obstruction.