Hayes v Willoughby

The defence under section 1(3)(a) of the Protection from Harassment Act 1997 depends on the alleged harasser’s subjective purpose, not on whether a reasonable person would have pursued the conduct. The person must nevertheless have formed that purpose rationally.

Rationality requires good faith, a logical connection between the evidence and the professed reasons, and freedom from arbitrariness, capriciousness or perversity. A person who fails to engage in those minimum mental processes lacks both the statutory purpose and the required causal connection between that purpose and the course of conduct. An obsessive campaign which is no longer guided by evidence or capable of furthering crime prevention or detection therefore falls outside the defence.

Hayes v Willoughby concerned a civil claim for damages and an injunction under the Protection from Harassment Act 1997. The defendant had repeatedly alleged fraud, embezzlement and tax evasion by the claimant to public authorities. The authorities investigated and rejected the allegations, but the defendant persisted.

The trial judge found that the campaign amounted to harassment. He nevertheless dismissed the claim because the defendant genuinely believed the allegations and subjectively intended to detect crime. The Court of Appeal, in [2011] EWCA Civ 1541, allowed the claimant’s appeal, granted an injunction and remitted the assessment of damages to the county court.

The defendant appealed. The central issue was whether the defence in section 1(3)(a), for conduct pursued to prevent or detect crime, depended entirely on subjective belief or incorporated an objective control mechanism.

1. Disposition. By a majority of four to one, the Supreme Court dismissed the appeal. The Court of Appeal’s injunction and order remitting the assessment of damages remained in force.

2. Nature of purpose. Lord Sumption, with whom Lord Neuberger and Lord Wilson agreed, held that no distinction could be drawn between the purpose of a course of conduct and the purpose of the person pursuing it. Acts of this kind can have no purpose other than that of their perpetrator. Lord Mance agreed that section 1(3)(a) focuses on the person’s subjective purpose.

   An entirely objective reasonableness test would conflict with the language and structure of the Protection from Harassment Act 1997. Parliament expressly used standards of reasonableness in sections 1(1)(b), 1(2) and 1(3)(c). Reading the same standard into section 1(3)(a) would also substantially duplicate the separate defence under section 1(3)(c).

3. Rationality as the control mechanism. A wholly subjective test would permit an obsessive or deluded person to justify oppressive conduct merely by professing a belief that crime was being prevented or detected. Section 1(3)(a) therefore requires the subjective purpose to have been formed rationally.

   Rationality imposes a minimum objective standard on the person’s mental processes. It requires good faith, some logical connection between the evidence and the professed reasons, and an absence of arbitrariness, capriciousness or perversity. It differs from asking what a hypothetical reasonable person would have done. The alleged harasser must apply his mind rationally to the material suggesting criminality and form the view that the conduct is appropriate for preventing or detecting it. Failure to do so means that the statutory purpose, and the causal connection between that purpose and the conduct, are absent.

4. Application. After June 2007, the defendant’s campaign was obsessive and no longer guided by an objective assessment of the evidence. There was no logical connection between his professed purpose and his continued conduct, which was no longer capable of furthering an investigation. His conduct therefore fell outside section 1(3)(a). Lord Mance agreed that the same conclusion followed whether the state of mind was described as irrational, perverse, abusive or grossly unreasonable.

5. Mixed purposes. Lord Sumption stated, obiter, that preventing or detecting crime need not be the person’s sole purpose. The ordinary question is whether it was the dominant purpose. Lord Mance likewise regarded a predominant qualifying purpose as sufficient.

6. Dissent. Lord Reed would not have implied a rationality requirement. In his view, the statutory language required only a genuine subjective purpose. Introducing a subtle distinction between unreasonableness and irrationality would impermissibly extend both civil and criminal liability beyond the limits expressed by Parliament.

1. United Kingdom Supreme Court: In Hayes v Willoughby [2013] UKSC 17, the court dismissed the defendant’s appeal by a majority of four to one. The Court of Appeal’s order stood.
2. Court of Appeal: In [2011] EWCA Civ 1541, the court allowed the claimant’s appeal, granted an injunction and remitted the claim to the county court for assessment of damages.
3. Trial court: The judge found that the defendant’s conduct amounted to harassment but dismissed the claim because the defendant genuinely believed his allegations and subjectively intended to detect crime.