Hayes v Willoughby

Section 1(3)(a) of the Protection from Harassment Act 1997 applies only where the course of conduct itself has the sole purpose of preventing or detecting crime. The defendant’s asserted or subjective purpose is relevant evidence, but is not determinative. Irrationality, excessive persistence, or a lack of rational connection between the conduct and the claimed criminal purpose may show that the statutory purpose is absent. Where a course has mixed purposes, the crime-prevention exclusion is unavailable. The whole course must instead be assessed for reasonableness under section 1(3)(c). Incidents with a different purpose that form part of the same campaign cannot be separated to obtain protection under section 1(3)(a).

Mr Hayes appealed from a decision of His Honour Judge Moloney QC in the Cambridge County Court concerning a seven-year campaign of correspondence and investigation by Mr Willoughby. The campaign involved repeated allegations of fraud and criminality to investigative and public authorities, together with intrusive communications concerning Mr Hayes’s personal affairs.

The judge found that the campaign had become unreasonable and excessive. He nevertheless held that the statutory exclusion for conduct pursued to prevent or detect crime applied because Mr Willoughby genuinely believed, or strongly and reasonably suspected, that Mr Hayes had committed offences. He also held that three incidents lacking a crime-prevention purpose could not be separated from the wider campaign. The central issues before the Court of Appeal were the meaning of section 1(3)(a) and the effect of mixed-purpose conduct forming part of one course.

Moses LJ delivered the judgment, with Sullivan and Gross LJJ agreeing.

1. The appeal was allowed. The lower court’s construction of section 1(3)(a) was wrong. The conduct was not protected merely because Mr Willoughby genuinely asserted a crime-prevention purpose or because the campaign could not be characterised as a separate course in respect of the three intrusive incidents.
2. Section 1(3)(a) concerns the purpose of the course of conduct itself. The defendant’s avowed purpose and reasons are relevant evidence among all the circumstances, but they do not determine the statutory question. The phrase the purpose means the sole purpose in this statutory context. Showing that prevention or detection of crime was one purpose is insufficient where the conduct also had other purposes.
3. A defendant who cannot satisfy section 1(3)(a) may rely on section 1(3)(c), but must establish that the conduct was reasonable in the particular circumstances. The court should not divide a mixed course between the two exclusions. Its nature, extent and duration, and the rational connection between the conduct and the asserted criminal purpose, are relevant. Irrational or obsessive persistence may demonstrate that the true purpose was different. This approach avoids the uncertain distinction between subjective and objective tests and does not impose a separate reasonableness test within section 1(3)(a).
4. The threshold between harassment and merely unattractive or unreasonable conduct was identified by reference to Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34 and Conn v The Council of the City of Sunderland [2007] EWCA Civ 1492. The court also explained the limited practical scope of the defence discussed in Howlett v Holding [2006] EWHC 2550 (QB), and approved the caution against vigilante conduct reflected in Callaghan v Independent News and Media Limited [2009] NIQB 1.
5. The three incidents formed part of the same campaign. They therefore demonstrated mixed purposes and reinforced the conclusion that the campaign was unlawful and unprotected by section 1(3)(a). The court granted an injunction preventing contact with Mr Hayes, his family and specified companies, communication with third parties concerning them, and collection of related information, subject to a litigation-witness exception. The parties had liberty to apply to vary the injunction.

• Court of Appeal (Civil Division): Allowed the appeal and granted an injunction under [2011] EWCA Civ 1541.
• Cambridge County Court: His Honour Judge Moloney QC held that the conduct was unreasonable and excessive but fell outside the statutory prohibition because the section 1(3)(a) exclusion applied.