The Supreme Court on harassment: purpose and rationality
20 March 2013
Hayes v. Willoughby, Supreme Court, 20 March 2013 – read judgment
Harassment is both a civil wrong and a crime. It is a statutory defence to both that the conduct “was pursued for the purpose of preventing or detecting crime” s.1(3) Protection of Harassment Act 1997. This decision grappled with the problem of the apparently honest but irrational harasser. Was he guilty or did this defence help him? In answering this, the Supreme Court looked at some basic concepts running through great swathes of the law, “purpose”, “subjective”, “objective”, “reasonableness” and, critically, “rationality” – so the case is one not simply for harassment lawyers to look at.
One of Mr Hayes’ companies used to employ Mr Willoughby. The men fell out. Mr Willoughby started to allege various frauds by Mr Hayes, writing to the police, the Official Receiver of one of Mr Hayes’ companies (some 400 communications to the Receiver), the Department of Trade and Industry and other public bodies. The allegations were taken seriously, with formal investigations by the Receiver, police and DTI into Mr Hayes and his companies. All these bodies concluded, by June 2007, that there was nothing in them. But this did not stop Mr Willoughby pursuing more of the same.
Finally, Mr Hayes went to court- a civil court- to try and stop all this. The judge at first instance found that this was a course of conduct calculated to cause alarm, distress and anxiety in Mr Hayes, even though all Mr Willoughby’s actions were addressed to third parties – he knew that the effect of his complaints would get back to Mr Hayes. This was enough to make out the civil wrong of harassment – subject to the statutory defence.
The judge thought that Mr Willoughby had the statutory defence. He thought that the terms of the statute (“for the purpose of”) were entirely subjective, and he concluded that Mr Willoughby sincerely believed that all times Mr Hayes had stolen large sums of money from the company, and hence his efforts were indeed addressed at “preventing or detecting crime”. At the beginning that belief was reasonable, but ceased to be so once the Official Receiver had explained to him why there was no such fraud.
The Court of Appeal allowed the appeal – albeit in respect of the conduct from June 2007 – and remitted the case back to the County Court for the assessment of damages. But Mr Willoughby appealed to the Supreme Court.
The arguments (based upon previous case law) were presented to the Supreme Court as if the only options were binary – subjective or objective. But as Lord Sumption explained, it was not as simple as that. The difficulty with a wholly objective test was that elsewhere in the Act the drafter made it clear that this was required by words such as “a reasonable person” – words notably absent from s.1(3)(a). The difficulty with the wholly subjective test was:
A large proportion of those engaging in the kind of persistent and deliberate course of targeted oppression with which the Act is concerned will in the nature of things be obsessives and cranks, who will commonly believe themselves to be entitled to act as they do.
Recent cases before the courts illustrate the propensity of obsessives to engage in conduct which is oppressive enough to constitute harassment, in the genuine belief that they are preventing crime. These ranging from the more extreme wings of the animal rights movement to the lone schizophrenic vigilante whom Mr Wolman (appearing for Mr Willoughby) submitted would be protected by section 1(3)(a). Those who claim to be acting for the purpose of either preventing or detecting crime may at a purely subjective level entertain views about what acts are crimes which have no relation to reality, let alone to the law……… It cannot be the case that the mere existence of a belief, however absurd, in the mind of the harasser that he is detecting or preventing a possibly non-existent crime, will justify him in persisting in a course of conduct which the law characterises as oppressive.
Some control mechanism is required, even if it falls well short of requiring the alleged harasser to prove that his alleged purpose was objectively reasonable.
The control mechanism, the Court decided, was rationality, when allied to subjectivity.
But rationality was not reasonableness – the latter a purely objective standard. Rationality did, however, require some element of objectivity. As Lord Sumption explained
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 (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse.
To claim the defence, therefore, the defendant needed to have applied his mind to the material suggesting the possibility of criminality and to have formed the view that the conduct he was about to undertake (complaints to the police etc) was appropriate for the purpose of detecting crime. If so, he has the relevant purpose under s.1(3)(a). If he has not engaged “in these minimum mental processes”, then he acts irrationally and cannot claim the benefit of the defence.
Then in an elegant justification for adopting this nuanced standard
The effect of applying a test of rationality to the question of purpose is to enable the court to apply to private persons a test which would in any event apply to public authorities engaged in the prevention or detection of crime as a matter of public law. It is not a demanding test, and it is hard to imagine that Parliament can have intended anything less.
Adopting that standard, Mr Willoughby was indeed entitled to pursue his campaign until June 2007, even though it harrassed Mr Hayes. But from that point on, because of his irrationality and obsessiveness, he ceased to have a “purpose” which fell within the scope of the defence.
Now, as the Court said, the meaning of a given word (“purpose”) cannot be divorced from its context. But it approved this austere definition by an Australian judge (Brennan J) of this “protean” term:
“Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce.”
In which one can perhaps see tinges of both rationality (“capable of”) and subjectivity (“intended to”).
There was however a dissent from Lord Reed. He did not think that the provision imported any criterion of rationality, because
First, Parliament did not say so.
That was particularly important given that the effect of the Act was to criminalise harassment.
In giving his third reason, Lord Reed also was
not convinced that Parliament can have intended that a jury should be expected to understand and apply the sophisticated distinctions which Lord Sumption seeks to draw.
So the tension in the judgments – between, dare I say it, the purposive and the literalist – is between Lord Sumption’s pragmatic outcome and Lord Reed’s concern that such an outcome could not be derived from the literal wording of the Act.
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