Commentary on provisions of the Act Section 6: Impeding investigations into water companies: sentencing and liability
This section amends the sentencing and liability provisions for offences related to impeding investigations under section 110 of the Environment Act 1995 and section 86 of the Water Industry Act 1991 ("the 1991 Act") of the Environment Agency, the Natural Resources Body for Wales and the Drinking Water Inspectorate. These amendments are restricted to water and sewerage undertakers and licensees.
	The section expands the options available to the court during the sentencing of offences under section 110(1) and (2). These offences are now triable in either the Crown or Magistrates’ Court and the sentencing powers include an unlimited fine and imprisonment with a term not exceeding the general limit on summary conviction or 2 years for conviction on indictment.
	Previously, the maximum sentence for obstruction of a requirement under section 108, which details the Environment Agency and Natural Resources Body for Wales’ investigatory powers, was an unlimited fine – not imprisonment – and the offence could only be heard in the Magistrates’ Court.
	Subsection (1)(b) and (c) of the section amends subsections (4) and (5) of section 110 of the Environment Act 1995, creating exemptions where new subsection (3E) applies. Section 110(4) details the maximum penalty for an offence under section 110(1); section 110(5) details the maximum penalty for an offence under section 110(2) and (3).
	The section also introduces a corporate liability provision (new sections 5I and 5J) in section 110 of the Environment Act 1995. If an obstruction offence is committed with the consent or connivance of, or is attributable to the neglect of, company executives or other relevant individuals, for example a Chief Executive Officer, they are also liable.
	For example, where a data request is made, or samples collected, under section 108 of the Environment Act 1995, and it can be demonstrated that there has been a failure to comply, an officer of the company may be responsible for such failure if they are considered to be acting with consent, connivance or by way of neglect. This form of corporate body liability provision sits elsewhere in water regulation. For example, in section 210 of the 1991 Act and regulation 41 of the Environmental Permitting (England and Wales) Regulations 2016. The new subsection (5J) provides the definition of a ‘relevant officer’ in relation to offences committed by the body corporate.
	The section also amends the penalty for obstruction offences committed against the Drinking Water Inspectorate through an amendment of section 86(6) of the 1991 Act. Section 86(3) places a duty on companies to provide assistance and information during investigations. The sentencing powers are now increased to mirror those in section 110 of the Environment Act 1995. The penalties are increased, on summary conviction, to imprisonment for a term not exceeding the general limit or to a fine, or both; and on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.
	To align with the increase in sentencing powers, a ‘reasonable excuse’ defence is inserted into section 86(6) of the 1991 Act so that culpability and the maximum penalty is equal to section 110(2) of the Environment Act 1995.
	Subsection (3) of the section clarifies that the amendments only have effect in relation to offences committed on or after the day on which this section comes into force.