Hayes v Willoughby

This appeal turns on the correct construction of Section 1 of the Protection from Harassment Act 1997 (the 1997 Act). Throughout a period of seven years between 2002 and 2009 the respondent, Mr Willoughby, had waged what the judge described as “on any view, a lengthy and persistent campaign of correspondence and investigation”. This included allegations of fraud and embezzlement communicated to the Inland Revenue and to Customs & Excise, to the Criminal Investigation Branch of the DTI, to Companies House, to the Official Receiver and to several different Police forces. The Official Receiver alone estimated that he had received 400 communications about the claimant, Mr Hayes, from the defendant.

His Honour Judge Moloney QC at the Cambridge County Court on 17 May 2010 concluded that this course of conduct exceeded “even the widest limits of reasonableness and became unreasonable and excessive”. There is no appeal against his findings of fact nor against his assessment of that conduct.

Yet the judge felt constrained by the terms of the 1997 Act and Walker J’s construction of that Act in Edo MBM v Axworthy [2005] EWHC 2490 to conclude that Mr Willoughby’s course of conduct fell outwith the prohibition in s.1 of the Act for two reasons. First, that he had established the statutory defence that the purpose of his conduct was prevention or detection of crime within the provisions of section 1(3)(a). He held that Mr Willoughby had a genuine belief or strong, sincere and reasonably based suspicion that the claimant had been guilty of fraud, false accounting, or tax evasion and that that was sufficient to amount to a defence. Second, he took the view that three incidents, which viewed in isolation could not be justified as conduct to prevent or detect crime, did not constitute a separate course of conduct and therefore were protected by his conclusion that the campaign as a whole was not unlawful.

This appeal concerns the question whether the judge erred in his construction of the statute as to the availability of the defence under Section 1(3)(a) that the course of conduct was pursued for the purpose of preventing or detecting crime. It also raises a second question whether the three incidents in respect of which the defence under s.1(3)(a) would not have been available, were protected as part of a course of conduct, which was otherwise lawful. It was accepted that but for the judge’s construction of what is loosely described as the defence provided in that sub-section, the conduct was a course of conduct which amounted to harassment.

The judge set out in some detail the nature of the allegations made by Mr Willoughby against the appellant, Mr Hayes. In the light of the factual conclusions, it would be unfair to him to repeat unsubstantiated but serious allegations made against Mr Hayes, in relation to the alleged disposal of assets of companies he controlled. The judge recorded that the allegations had been closely investigated by the Official Receiver of the United Kingdom. He had concluded that, on examination of the companies’ bank accounts, apparent discrepancies could be largely accounted for by legitimate expenditure. The police and the DTI, to whom similar allegations had been made, concurred. But Mr Willoughby refused to accept those conclusions and continued to raise queries, based upon what he regarded as the inadequate investigations of the authorities and their illogical conclusions. The judge recorded the authorities’ increasingly exasperated responses to the defendant’s persistence. For example, on 5 December 2005 the Official Receiver wrote:-

The judge summarised his view as to these allegations in his conclusions:-

The judge recorded the defendant’s response to Mr Hayes’ direct question at trial:-

Mr Hayes made additional complaints that Mr Willoughby, in the course of his campaign, had intruded into his private and personal affairs. He made eight specific complaints. The judge found that his conduct in three particular respects went too far, was unreasonable, and could not be characterised as being for the purpose of preventing or detecting crime. Mr Willoughby extracted and misused admissions Mr Hayes had made in matrimonial proceedings that he had suffered from mental and emotional illness. He sent evidence of Mr Hayes’ mental illness in 2007 to the Institute of Legal Executives in the course of a complaint against one of Mr Hayes’ legal advisers. Second, in 2005 he wrote to the Mr Hayes’ general practitioner asking him to confirm the authenticity of a sick note the GP had written on the pretext that Mr Hayes appeared to have been working during the period of the note. The GP subsequently confirmed the authenticity of the note. An associate of the defendant also wrote to the doctor making a similar request. Subsequently, the doctor authenticated both of the notes. The judge described this conduct thus:-

Section 1 of the Act provides:-

Section 1(3)(a) excludes from the prohibition in Section 1(1) a course of conduct pursued for the purpose of preventing or detecting crime. The sub-section does not refer to the purpose of the person who pursues the course of conduct in question but to the course of conduct itself. That is not to say that the purpose of the person who is pursuing that conduct is irrelevant. Of course, persons who pursue conduct which would otherwise amount to harassment may often wish to explain what purpose they had in mind and their reasons for adopting that conduct. But their avowed purpose is not determinative. It is merely part of the evidence of all the circumstances which a court must assesss in answering the statutory question posed by Section 1 (3)(a). That question is: what was the purpose of the course of conduct pursued by the defendant? If the defendant shows that the conduct was pursued for the purpose S.1(3)(a) identifies, the course of conduct falls outwith the prohibition.

A second issue arises from the use of the definite article “the”. What if, as will often be the case, the course of conduct has more than one purpose? May a course of conduct fall outside the prohibition if the defendant shows that one of its purposes was preventing or detecting crime? The answer lies in construction of the sub-section in its statutory context. It is trite to observe that the question, whether the purpose means the sole purpose or the dominant purpose, or a more than insignificant purpose, will depend upon the statute in which it is found. Because one of those meanings has been attached to the definite article in one statutory scheme, it by no means follows that that meaning can be derived in a different statutory context.

The court was shown, by way of example, judicial discussion as to the meaning of “the purpose” in the wholly different statutory context of setting aside transactions the purpose of which was to put assets beyond the reach of claimants by virtue of Section 423 of the Insolvency Act 1986 in Hashmi v CIR EWCA Civ 981. It was hardly surprising that the court should construe the provision as permitting the court to set aside a transaction entered into for a number of purposes provided that a real substantial purpose, to use the words of Arden LJ [41] was to put assets beyond the reach of the Revenue. It would have confounded the purpose of the provision to permit the defendant to avoid an order merely because other purposes could be demonstrated.

Section 1(3)(a) comes within a statutory provision designed to protect the victims of oppressive and unacceptable conduct, conduct which may be of sufficient gravity to justify the imposition of criminal liability. Neither criminal nor civil liability can be established unless the conduct crosses the boundary beyond unattractive and even unreasonable conduct (Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34 and see Conn v The Council of the City of Sunderland [2007] EWCA Civ 1492 [10] and [11]). This is a statutory provision, which, for sensible reasons, seeks to achieve simplicity. The provision has to be applied to an indefinable variety of circumstances, which require assessment both in civil and criminal jurisdictions.

It must be remembered that the purpose and effect of Section 1(3) is to exclude from any legislative prohibition conduct which would otherwise be oppressive, unacceptable and likely to cause substantial damage to the quality of a victim’s life. It would, accordingly, impede and be inimical to the protection the provisions are designed to afford to allow complicated debate to arise as to the statutory meaning of the purpose. The statutory protection for victims of a course of conduct which would be judged harassment would be baulked if the those charged with finding and assessing the facts, magistrates, juries or judges, were required to draw the familiar but often difficult distinction between motive and purpose, between predominant or main purposes and subsidiary purposes, between substantial or minimal purposes or between purpose and effect which has bedevilled other statutes.

There is another feature of s.1(3) which casts light on the correct construction of s.1(3)(a). That sub-section must be read in the context of s.1(3)(c). In so far as the purpose of the course of conduct was not preventing or detecting crime, it is still open to a person to show that the pursuit of the conduct was, in the circumstances, reasonable. If a course of conduct is pursued partly to prevent or detect crime and partly for other reasons, a person may claim the protection of S.1(3)(c) and show that the conduct was , in the circumstances, reasonable.

I conclude that S.1(3)(a) is confined to a course of conduct the purpose of which is preventing or detecting crime. There is no reason to protect a defendant whose course of conduct constitutes harassment because one of the purposes is the prevention or detection of crime unless his course of conduct was reasonable. If a defendant invokes both Section 1(3)(a) and (c), the first question will be whether the, in the sense of the only, purpose of the conduct was preventing or detecting crime. If a defendant can do no more than show that the course of conduct has been pursued for a number of purposes, only one of which is preventing or detecting crime, he will have failed to prove that the purpose was preventing or detecting crime and he will fall outwith the scope of its protection. The defendant must then show that the course of conduct was reasonable, under s.1(3)(c). A judgement as to whether the course of conduct was, in the particular circumstances, reasonable, will have to take into account the mixed purposes to which the person who pursues it attests.

This construction of s.1(3)(a) has the merit that it does not require any words to be read into the sub-section. Still less does it require resolution of the debate which exercised the judge and Walker J. It was argued before him that a defendant could only rely on s.1(3)(a) if he acted reasonably in thinking that the conduct in question would prevent a crime [28]. The judge concluded that, in the light of the reference to a test of reasonableness in section 1(3)(c), Parliament did not intend that it was necessary for a defendant to justify his conduct, for the purposes of section 1(3)(a) or for that matter under (b), as reasonable [37]. The consequence was that s.1(1) would be disapplied even in the case of a schizophrenic under the delusion that someone is about to commit murder [38]. It was this construction that persuaded the judge in the instant case to hold that Mr Willoughby was not liable despite the fact that his conduct was unreasonable and excessive.

The judge and Walker J erred in failing to construe the words of the sub-section in the light of their place in the statutory scheme. There is no warrant for conflating the purpose of the course of conduct with the purpose of the person who pursues that conduct. The two are by no means necessarily the same. There is no need to read into the sub-section a test as to whether the conduct was reasonable in its purpose of preventing or detecting crime. To the extent that the course of conduct is adjudged irrational, or lacking in any reasonable connection to the avowed purpose of preventing or detecting crime, the likely conclusion will be that the purpose of the conduct was not preventing or detecting crime. This case is a good illustration of how difficult a defendant will find it to show that the purpose of the course of conduct he has pursued was preventing or detecting crime if there is no reasonable nor rational link between the purpose he asserts and the nature and extent of the conduct he pursues. After the Official Receiver, in June 2007, had given his views of the bank accounts, but the defendant had continued his course of conduct, he could no longer show that the purpose of the conduct was detecting crime: the irrationality of his persistence demonstrated some other purpose…the fulfilment of his obsession.

Walker J in EDO construed the words “preventing” crime as requiring identification of a specific crime and victim and that the danger of its commission be imminent or immediate [53]. That issue does not arise in this case. But questions as to what crime a defendant was seeking to prevent or detect or as to the imminence of the crime he says he sought to prevent will, in any event, be relevant in determining the purpose of the course of conduct.

My construction is, however, consistent with other authorities, which HH Judge Moloney QC declined to follow. In KD v Chief Constable of Hampshire [2005] EWHC 2550, Tugendhat J observed that both parties had submitted that the test under section 1(3)(a) was subjective but took the view that it was subject to the tests of necessity and proportionality [140] and [144]. I doubt whether, on my construction, any such problem arises; if the purpose of the course of conduct is preventing or detecting crime it is difficult to see how it could be said that the conduct is unnecessary or disproportionate.

In Howlett v Holding [2006] EWHC 2550 (QB) Eady J drew from Hansard the proposition that the sub-section was framed with law enforcement agencies in mind [33]. The sub-section does not say so but, on the construction I have favoured, it will be unlikely that anyone who falls outside that category will succeed.

Both those judges referred to objective and subjective tests. I doubt whether the distinction illuminates, since it is often difficult to define what precisely is meant by those expressions. There is a danger, for example, in being lured into consideration of the relevance, in an objective assessment, of the characteristics of the individual pursuing the impugned course of conduct. I would eschew such expressions: let the words of the sub-section be the guide. Application of those words lends force to Eady J’s observation, that the defence :-

HH Judge Moloney QC, in following Walker J, erred in his construction of s.1(3)(a). He held that the fact that “the campaign was or may have been misconceived from the start, or may have become unreasonable as time goes on, does not affect the defence under s.1(3)(a)”. The opposite is the case. A finding that the campaign was misconceived or became unreasonable does affect the defence: such a finding would make it highly unlikely if not impossible for anyone pursuing such a campaign to show that the purpose of the course of conduct came within the sub-section.

The judge’s findings plainly dictate the conclusion that the defendant did not show that the purpose of his course of conduct was preventing or detecting crime, once the authorities had declined to take action. The judge found that the defendant’s persistence “exceeded even the widest limits of reasonableness and became unreasonable and obsessive”. That affords ample justification for the conclusion that the defendant had not established that the purpose of the course of conduct was preventing or detecting crime.

There remains the issue of those three aspects of the conduct which the judge ruled did not have the purpose of preventing or detecting crime. As I have recalled, the judge took the view that those parts of the campaign did not constitute a course of conduct which could be isolated from the campaign as a whole. Since the campaign was outwith the prohibition, he thought it followed that those parts could not be separately impugned. But the finding, that those incidents were part of the campaign, lead to the opposite conclusion. Once it was found as a fact that they were part of the campaign, they merely reinforced the conclusion that the campaign was unlawful and not protected by s.1(3)(a) or by s.1(3) (c).

Let it be supposed that the defendant could have shown that, apart from those incidents, the course of conduct he had pursued was for the purpose of preventing or detecting crime. Once it was found that those incidents were pursued for a different purpose but were part of the same campaign, s.1(3)(a) could no longer be satisfied. Those incidents demonstrated a different purpose and, therefore, that the course of conduct was pursued for more than one purpose: preventing or detecting crime was not the sole purpose. The defendant would then only be left with the defence under s.1(3)(c) that the course of conduct was reasonable. He could not rely upon s.1(3)(a) as to part of the course of conduct and s.1(3)(c) as to another part. The whole of his conduct would fall to be judged under s.1(3)(c). That judgement would require consideration of the purposes of the conduct, including the purposes of the three instances, and the significance of those three instances in the context of the whole: were they so insignificant as not to taint an assessment of the course of conduct as a whole or did they taint the course as unreasonable, when viewed as a whole ?

Had this been a case where the defendant had shown that the pursuit of the course of conduct was reasonable, and that the three incidents were not part of the campaign, then a court would have to consider whether they involved a course of conduct. Clearly they were capable of such a categorisation (section 7(3)(b)). The question does not arise in this case.

The court has already indicated that it would allow the appeal and grant an injunction in the following terms:

I agree.

I also agree.