Millmore & Ors v Environment Agency

“Obstruct” in section 110(1) of the Environment Act 1995 includes conduct which prevents, or makes more difficult, the exercise of an authorised officer’s powers. An omission can constitute obstruction only where the defendant was under a duty to perform the omitted act. Sections 110(1) and 110(2) create distinct offences, but the same conduct may satisfy both. Section 108 powers to enter premises and inspect or remove records for copying do not generally require the occupier’s or owner’s consent. A warrant is required where the statutory conditions concerning possible use of force are met. Criminal liability requires a clear finding of the specific act or omission constituting the offence. Mere communication of an employer’s position is insufficient without a finding that the defendant implemented it obstructively.

Five employees of Southern Water Services Limited appealed convictions by Folkestone Magistrates’ Court for offences under section 110(1) of the Environment Act 1995. The convictions arose from Environment Agency inspections at the company’s waste-water treatment works.

The central issues were whether the appellants’ conduct obstructed authorised officers exercising powers under section 108, whether consent or a warrant was required for entry or removal of records, whether the officers’ powers depended on a particular assessment of necessity, and whether evidence concerning one appellant should have been excluded under section 78 of the Police and Criminal Evidence Act 1984.

1. Meaning of obstruction. Section 110(1) encompasses an act which prevents an authorised person from exercising statutory powers or makes their exercise more difficult. An omission may constitute obstruction only where the defendant was under a duty to perform the omitted act. The offences in section 110(1) and (2) are distinct: subsection (1) requires intention and has no reasonable-excuse defence, while subsection (2) is subject to reasonable excuse. The same conduct may satisfy both provisions.
2. Section 108 powers. The powers to enter premises and inspect, copy and remove records under section 108(4)(a) and (k) do not require the occupier’s or owner’s consent. Section 108(7) requires a warrant where entry is likely to be refused and force may be necessary. Schedule 18 paragraph 2 identifies conditions supporting the issue of a warrant; it does not create additional circumstances in which a warrant is mandatory. Cantabrica Coach Holdings Ltd v Vehicle Inspectorate [2001] UKHL 60 supports the conclusion that inspection and copying may include removal of records. It does not require the officer to make a specific contemporaneous assessment of necessity before removal.
3. Individual appeals. The findings against Rowbottom, Parker and Annetts established intentional obstruction. Removing records from officers’ possession and locking them away plainly obstructed their powers. Refusing entry was also obstruction because the officers present did not apprehend that refusal and force would make a warrant necessary. The evidence concerning Annetts was not unfairly obtained, and exclusion under section 78 of PACE was not warranted.
4. The findings against Millmore and Smith established only that they communicated their employer’s position. There was no clear finding that either appellant personally implemented that position by directing or otherwise obstructing the officers. Their convictions could not stand. Their appeals were allowed and their convictions quashed. The appeals of Rowbottom, Parker and Annetts were dismissed.

Folkestone Magistrates’ Court: convicted the five appellants of offences under section 110(1) of the Environment Act 1995.

High Court (Administrative Court): allowed the appeals of Millmore and Smith and quashed their convictions; dismissed the appeals of Rowbottom, Parker and Annetts.