People must act rationally to rely on harassment defence

People accused of harassment, who claim their behaviour was aimed at ‘preventing or detecting a crime’, must act rationally to take advantage of the defence under section 1(3)(a) of the Protection from Harassment Act 1997, the Supreme Court has ruled.

The court heard that Michael Willoughby embarked on an “unpleasant and obsessive personal vendetta” against his former boss, businessman Timothy Hayes.

Delivering the leading judgment in Hayes v Willoughby [2013] UKSC 17, Lord Sumption said Willoughby alleged that Hayes’ management of his companies, principally in the accounting year 2002-3, was characterised by “fraud, embezzlement and tax evasion”.

Lord Sumption went on: “The campaign was mainly carried on by pressing these allegations in very many letters addressed over the years to the Official Receiver, the police, the Department of Trade and Industry and other public bodies.

“The judge recorded that the Official Receiver estimated that no less than 400 communications on the matter were exchanged between Mr Willoughby and the Official Receiver alone.

“The Official Receiver obtained access to the company’s records and investigated the allegations. The DTI commenced two investigations under section 447 of the Companies Act 1985. The police looked into the allegations. All of them concluded that there was nothing in them.”

Lord Sumption said the trial judge found that Willoughby’s letter-writing campaign resulted in ‘unacceptable intrusion’ into Hayes’ privacy.

This included obtaining confidential information from Hayes’ ex-wife derived from their divorce proceedings about his “mental and emotional ill-health”, which was “gratuitously passed” to third parties.

“Secondly, he suggested to Mr Hayes’s GP that Mr Hayes had forged the latter’s signature on sick-notes used to explain his absence from court proceedings in the course of the litigation of 2003-4.

“Third, he left a voicemail message on the telephone of Mr Hayes’s landlord in the United States on the day before his bankruptcy, reporting that Mr Hayes was about to go bankrupt and asking whether he owed the landlord money.”

The trial judge found that, at the outset of his campaign, there was a “reasonable basis” for Willoughby’s suspicions, despite the three incidents of personal intrusion, and dismissed the harassment claim.

The judge argued that Willoughby genuinely believed in his allegations and the test under section 1(3) of the Act was wholly subjective. The Court of Appeal rejected this approach, and said that after June 2007, Willoughby’s purpose was not “reasonably or rationally” connected to the detection or prevention of crime.

Lord Sumption said: “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.”

Lord Sumption concluded: “Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter.

“He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it. If he has done these things, then he has the relevant purpose.”

Lord Sumption dismissed Willoughby’s appeal. Lords Neuberger and Wilson agreed. Lord Mance also agreed, for his own reasons.

Lord Reed dissented. He said he could not agree that parliament intended to impose a requirement that a course of conduct should have been rational.

Lord Reed argued that if parliament wanted to amend the law in order to apply it to people such as Willoughby, it could do so.

At the same time, it could also consider whether it “wished to preserve the immunity which had until now been thought to be conferred” by section 1(3)(a) on public agencies exercising investigative powers and investigative journalists.