New Judgment: Hayes v Willoughby  UKSC 17
20 Wednesday Mar 2013
On appeal from:  EWCA Civ 1541
The appellant was employed by the respondent’s company, and then the two men fell out. The appellant embarked on a campaign against the respondent which took the form of sending numerous letters to the Official Receiver, the Department of Trade and Industry, and the police, alleging the respondent was involved in fraud, embezzlement and tax evasion. The allegations were found to have no factual basis but the appellant persisted.
At first instance the appellant’s conduct was found to constitute harassment under the Protection from Harassment Act 1997, s 1(1), but he was held to have a defence under s 1(3)(a) (conduct pursued for the purpose of preventing or detecting crime) as he genuinely believed in the allegations and wished to persist in investigating them. The Court of Appeal allowed the respondent’s appeal on the grounds that the purpose of the conduct was not reasonably or rationally connected to the prevention of crime, and the prevention of crime had to be the sole purpose of the alleged harasser.
The Supreme Court dismissed the appeal by a majority of four to one. There was no distinction between the purpose of the conduct and the purpose of the alleged harasser. The issue was by what standard the purpose was to be assessed. A test of reasonableness was deliberately not included in s 1(3)(a) as it was in other sections of the Act, but a wholly subjective test was not appropriate either. The necessary control mechanism was held to be the concept of rationality. Applied to the facts the appellant’s conduct was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts.
Lord Reed, dissenting, agreed that reasonableness is not required under s 1(3)(a), but rejected the idea that Parliament intended to impose a rationality requirement – a statute should not be construed as extending criminal liability beyond the limits which Parliament enacted it.