Hayes(FC) v Willoughby  UKSC 17
This decision of the Supreme Court concerns a claim for damages for harassment and an injunction to restrain its continuance. The question at issue was in what circumstances an action could be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Section 1(1) of the Protection from Harassment Act 1997 provides that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other. Section 1(3) of the Act provides (as material to this Note) that s.1(1) does not apply to a course of conduct if the person who pursued it shows “(a) that it was pursued for the purpose of preventing or detecting crime,… or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable”.
The Claimant, Mr Hayes, is a businessman. One of his companies used to employ the Defendant, Mr Willoughby, before they fell out. The harassing conduct was in the words of Lord Sumption an “unpleasant and obsessive personal vendetta”, involving a campaign of correspondence containing allegations of criminal conduct sent to various public authorities (which concluded that there was nothing in them) and by what the judge at first instance regarded as unacceptable intrusions into the Claimant’s privacy and personal affairs. The judge found that the Defendant’s conduct amounted to harassment and this was not disputed before the Supreme Court. The sole remaining issue was whether the Defendant had a defence under s.1(3)(a) of the Act on the ground that his campaign was pursued for the purpose of preventing or detecting crime.
The judge found that the Defendant at all times sincerely believed in his allegations, so that his campaign was throughout subjectively directed to the prevention or detection of crime. At the outset of the campaign, there was a reasonable basis for his suspicions but once the Official Receiver (with whom, among others, the Defendant had raised his allegations) had examined the bank statements of the Claimant’s companies and rejected the allegations, his persistence exceeded even the widest limits of reasonableness and became unreasonable and obsessive. The incidents of intrusion into the Claimant’s private life were never reasonable and had no relevant connection with the prevention or detection of crime. But they did not constitute a separate course of conduct capable of amounting to harassment independent of the correspondence with the public authorities.
It was common ground before the Supreme Court that, in respect of the period up to the OR’s report containing his conclusions on the allegations, the effect of the judge’s findings was that the Defendant was entitled to rely on s.1(3)(a) as a defence. The question at issue was whether he remained entitled to do so thereafter. The judge dismissed the claim in respect of the whole period because he considered that the test for s.1(3) was wholly subjective. It was enough that the Defendant genuinely believed in his allegations and wished to persist in investigating them.
The Court of Appeal allowed the appeal for two reasons in summary: (a) There was a distinction between the purpose of the alleged harasser and the purpose of his conduct, only the latter being relevant. Whatever the avowed purpose of the Defendant himself, the purpose of his conduct was not reasonably or rationally connected to the prevention or detection of crime after the OR’s report. (b) The prevention and detection of crime had to be the sole purpose of the alleged harasser, and the intrusions upon the Claimant’s privacy, which the judge had found to be unrelated to the prevention or detection of crime, showed that it was not.
The Court of Appeal granted an injunction and remitted the matter for assessment of damages.
The appeal was dismissed by 4-1 (Lords Sumption, Neuberger and Wilson agreeing and Lord Mance dismissing it for essentially the same reasons). Lord Reed dissented.
Lord Sumption (para 9) started from the point that there was no general rule as to how purpose was to be established when it was relevant to a crime or civil wrong. When purpose was relevant to the operation of a statutory provision, the question depended on the construction of the statute in the light of the mischief to which it was directed.
Lord Sumption (para 10) rejected the Court of Appeal’s distinction between the purpose of the alleged harasser and the purpose of the course of conduct. He said: “Acts such as these can have no purpose other than that of the perpetrator.”
The question was rather by what standard that person’s purpose was to be assessed. The difficulty about a wholly objective test was that it was not consistent with either the language or the purpose of the Act. Where the draftsman intended to apply an objective test of reasonableness he had said so in terms (see s.1(1)(b), s.1(2) and s.1(3)(c) of the Act). If the defence under s.1(3)(a) was limited to cases where it was reasonable to prevent or detect crime in the way the alleged harasser set about it, it would have been unnecessary because it would have been subsumed in the general defence of reasonableness provided by s.1(3)(c). Moreover, it was hard to see how such a limitation would be workable as applied to public authorities (para 11).
On the other hand, a wholly subjective test was equally problematic. Before the defence could arise, it had to be shown that the victim had been harassed. In harassment cases the court was concerned with conduct which was a criminal offence as well as a civil wrong, so that s.1 of the Act was confined to serious cases, involving conduct beyond the unattractive and even unreasonable, being conduct which was oppressive and unacceptable. A large proportion of harassers would in the nature of things be obsessives and cranks who believed themselves to be entitled to act as they were doing (para 12). Some control mechanism was needed to prevent harassment by those convinced in their own minds, however absurd the belief, that they were preventing or detecting (a possibly non-existent) crime, even if such control mechanism fell well short of requiring the alleged harasser to prove that his alleged purpose was objectively reasonable (para 13).
Lord Sumption did not doubt that in the context of s.1(3)(a) purpose was a subjective state of mind. But the necessary control mechanism was to be found in the concept of rationality, a familiar concept in public law and in the law relating to contractual discretions. Rationality was not the same as reasonableness. As he put it: “Reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions. The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. A test of rationality, by comparison, applies a minimum objective standard to the relevant person’s mental processes. It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and…an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse.” This was not the same as Wednesbury unreasonableness (para 14).
Before an alleged harasser could be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter, thought rationally about the material suggesting possible criminality and formed the view that the conduct said to constitute harassment was appropriate for that purpose. If he had not, in law he was not to be regarded as having had the relevant purpose nor would there exist the required causal connection between his purpose and his harassing conduct. The effect of a test of rationality was to apply to individuals a test already applied by the courts to public authorities engaged in the prevention and detection of crime. It was not a demanding test (para 15).
On the facts, the Defendant’s conduct after the OR’s report failed that test (para 16).
Whilst unnecessary to decide the issue, Lord Sumption was of the view that the Court of Appeal’s second ground (need for prevention/detection of crime to be the sole purpose) was “indefensible”. The ordinary principle was that the relevant purpose was the dominant one (para 17).
Lord Mance essentially agreed with Lord Sumption’s reasons for dismissing the appeal. In relation to an alleged harasser’s predominant subjective purpose of preventing or detecting crime, he referred to the law’s recognition in other contexts of looser control mechanisms than mere unreasonableness, such as “complete irrationality, perversity, abusiveness or indeed, in some contexts gross negligence”. Which of these was adopted in the present context did not in his view ultimately matter. They all probably amounted to very much the same thing. However described, the Defendant’s conduct was outside the s.1(3)(a) defence (para 23).
Lord Reed dissented. He rejected a requirement of objective rationality (for reasons – not without some force – set out at paras 25-30). He was, moreover, unsure that he understood, among other things, Lord Sumption’s distinction between conduct failing the test of rationality and Wednesbury unreasonableness or whether Lord Sumption’s test was the same as the test reflected in the various standards mentioned by Lord Mance. He was concerned about the possible inhibiting effect of the rationality requirement on public authorities and investigative journalists.
The judgment is available here.