Supreme Court rules on harassment defence

Practical Law UK Legal Update 1-525-5496 (Approx. 5 pages)

Supreme Court rules on harassment defence

by PLC IPIT & Communications

Background

Section 1(1) of the Protection from Harassment Act 1997 (PHA 1997) provides that a person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. This is both a criminal offence under section 2 and a civil wrong under section 3.

Section 1(3) of the PHA 1997 provides that subsection (1) does not apply to a course of conduct if the person who pursued it shows that either:

It was pursued for the purpose of preventing or detecting crime (section 1(3)(a)).
It was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment (section 1(3)(b)).
That in the particular circumstances the pursuit of the course of conduct was reasonable (section 1(3)(c)).

Facts

The claimant owned a number of companies, one of which had previously employed the defendant. The claimant and the defendant fell out and the defendant subsequently embarked on a personal vendetta against the claimant, alleging to various public bodies in a large volume of correspondence that the claimant's management of his companies had been characterised by fraud, breach of trust and tax evasion. Those bodies eventually concluded that there was no substance in the allegations.

The allegations were accompanied by what the judge at first instance regarded as unacceptable intrusions into the claimant's privacy and personal affairs. These included getting confidential information from the claimant's ex-wife about his mental and emotional ill-health and passing it onto third parties to generate prejudice against him; suggesting to the claimant's GP that the claimant had forged the GP's signature on sick-notes used to explain the claimant's absence from court proceedings between the claimant and the defendant; and leaving a voicemail message on the telephone of the claimant's landlord that the claimant was about to go bankrupt and asking whether the claimant owed the landlord money.

The judge found that the defendant had engaged in a course of conduct amounting to harassment of the claimant for the purposes of section 1(1) PHA 1997. However, the judge also found that the defendant had a defence under section 1(3)(a) on the basis that he sincerely believed that the claimant had stolen large sums from his companies in the UK and had committed a variety of offences in the course of doing so. The judge therefore held that the defendant's campaign of harassment was subjectively directed at the prevention or detection of crime.

The Court of Appeal allowed the claimant's appeal, holding that there was a distinction between the purpose of the alleged harasser and the purpose of his conduct, only the latter being relevant. Whatever the purpose of the defendant himself, the purpose of his conduct was not reasonably or rationally connected to the prevention or detection of crime. Further, the prevention and detection of crime needed to be the harasser's sole purpose. The intrusions on 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 defendant appealed. The sole issue was whether the defendant was entitled to the defence under section 1(3)(a).

Decision

The Supreme Court (by a majority of four to one, Lord Reed dissenting) dismissed the appeal, but rejected the reasoning of the Court of Appeal. Lord Sumption (with whom Lords Neuberger and Wilson agreed) gave the leading judgment. Lord Mance agreed with Lord Sumption on the outcome for essentially the same reasons, but gave a short separate judgment. The fundamental issue was the standard (if any) by which a person's purpose under section 1(3)(a) of the PHA 1997 was to be assessed. The court's reasoning is summarised below.

Lord Sumption rejected the Court of Appeal's ruling that there was a distinction between the purpose of a course of conduct and the purpose of the person engaged in it. Acts of harassment could have no purpose other than that of their perpetrator.

However, Lord Sumption also considered that the purpose under section 1(3)(a) could not be subject to a wholly objective test. Where the legislature had intended to apply the test of reasonableness under the section, it had done so expressly, that is, under section 1(1)(b) ("ought to know") and section 1(3)(c). If a reasonableness test applied to section 1(3)(a), it would render section 1(3)(c) otiose. Lord Sumption felt that, moreover, a reasonableness test would be unworkable when applied to public authorities.

On the other hand, Lord Sumption considered that a wholly subjective test was equally problematic. He suggested that, given that harassment was a criminal offence, a large proportion of those engaging in the targeted oppression with which the PHA 1997 was concerned would be "obsessives and cranks", who would commonly believe themselves to be entitled to act as they did. It could not be the case that the mere belief, however absurd, in the harasser's mind that they were detecting or preventing a possibly non-existent crime, would justify them in pursuing a course of conduct which the law had characterised as oppressive. Some control mechanism was required, even if it fell well short of requiring the alleged harasser to prove his purpose was reasonable.

Lord Sumption proposed the public law concept of rationality as the necessary control mechanism for the purposes of section 1(3)(a). By comparison with reasonableness, rationality applied a minimum objective standard to the relevant person's mental processes. It imported a requirement of good faith; a requirement that there should be some logical connection between the evidence and the ostensible reasons for the person's decision; and (which would 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. Since the question was concerned with an alleged harasser's state of mind, the broader categories of Wednesbury unreasonableness did not come into play.

In seeking to reconcile this reasoning with the absence of any express reference to rationality in section 1(3)(a), Lord Mance rejected the notion that the legislature could have intended there to be no limits to the pursuit of a course of conduct for the purpose of preventing or detecting crime, no matter how irrational, perverse or abusive its pursuit might become. Whether irrationality, perversity, abusiveness or even gross negligence were adopted as a looser control mechanism than unreasonableness in the context of section 1(3)(a) did not ultimately matter; they all probably amounted to the same thing.

Lord Sumption added obiter (although it appears to form part of the ratio of Lord Mance's judgment) that the Court of Appeal had been wrong to hold that the section 1(3)(a) purpose must be the sole purpose. A person's purposes were always to some extent mixed and the ordinary principle was that the relevant purpose was the dominant one.

In his dissenting judgment, Lord Reed rejected the notion that the legislature had intended to impose a requirement that the pursuit of the course of conduct under section 1(3)(a) had to be rational on the grounds that:

The legislature did not say as much.
A statute should not normally be construed as extending criminal liability beyond the limits which the legislature had made clear in its enactment.
Since the defence under section 1(3)(a) and the other provisions to similar effect limited the scope of criminal offences, some of which were triable on indictment, it was doubtful that criminal liability was intended to turn upon the subtle distinction between what was reasonable and what was irrational, not least because juries would be expected to apply it.

Lord Reed noted the inhibitive effect that the introduction of a threshold before the defence could apply might have on public agencies charged with the prevention or detection of crime and on investigative journalism.

Comment

Lord Reed's dissenting judgment is understandable, given the majority's approach of attributing words to the legislature that are not reflected in the section 1(3)(a) defence. It is curious that the majority should feel dissuaded from reading reasonableness into the defence simply because the concept appears expressly in other parts of the legislation and at the same time able to read in rationality (or related concepts); ultimately neither concept appears expressly in section 1(3)(a). Given the legislature's attention to detail elsewhere in the legislation, it seems likely that it would have expressly qualified the ostensibly wholly subjective nature of the defence had it wished to do so. The Supreme Court's eagerness to step into the role of the legislature and plug gaps in legislation where none appeared to be necessary is concerning.

As Lord Reed pointed out, the ruling could have a chilling effect on investigative journalism. Parts of the news media might become less tenacious if they consider there to be a risk that their attempts to uncover criminal activity might incur criminal liability. The problem faced by journalists is that while on the basis of the ruling they might be entitled to behave unreasonably in getting at the subjects of their investigations, they will not be permitted to behave irrationally and while what amounts to irrational behaviour might usually be obvious (and therefore avoidable), it is at the boundary between the two concepts highlighted by Lord Reed that uncertainty has been introduced.

Case

Hayes v Willoughby [2013] UKSC 17, 20 March 2013 (Lords Neuberger, Mance, Wilson, Sumption and Reed; Clive Wolman (Instructed by Michael John Willoughby) for the appellant, and Robin Allen QC and Akua Reindorf (Instructed by Ginn & Co) for the respondent).

End of Document

Also Found In

Resource ID 1-525-5496

Published on 04-Apr-2013

Resource Type Legal update: archive

Jurisdiction

United Kingdom