supreme Court considers 'prevention/detection of crime' defence in harassment cases

The supreme Court in Hayes v Willoughby, have considered the scope of the defence under s.1(3)(a) of the Protection of Harassment Act 1997. Under that provision, a person cannot be found liable for a course of conduct that amounts to harassment if their conduct was pursued for the purpose of preventing or detecting crime.

 The Appellant in the case before the supreme Court had been accused of harassment after he pursued a campaign against his former employer beginning at the end of 2003.  The Appellant, Mr Willoughby, wrote in excess of 400 letters to public bodies including the police and Official Receiver alleging that the Respondent had committed fraud, tax evasion and embezzlement.  These allegations were duly investigated and it was decided that they were without merit.  Despite this decision, delivered in 2007, the Appellant continued his campaign and intrusively interfered in the Respondents personal affairs.  Mr Willoughby stated that he did so for the purpose of preventing/detecting the alleged criminal activities of the Respondent.

The court considered whether the test under s.1(3)(a) was a subjective or objective test.  Lord sumption delivering the majority judgment stated that he did not doubt that there was a subject state of mind but that it was necessary to have a control mechanism.  He said that the control mechanism was to be found in the concept of rationality which is not the same as reasonableness.  He clarified that an alleged harasser, if he is to successfully rely on the defence, ˜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 they had not conducted this exercise, then the defence would fail.

Lord Reed, dissenting, suggested that to introduce a requirement of objective rationality went beyond the courts scope of applying the law and meant reading in words which Parliament had not adopted in the legislation.

The appeal was dismissed.