Tag Archives: course of conduct

Supreme Court rules on ‘Detecting Crime’ Defence

The Detective Game

Yesterday, the Supreme Court handed down judgment in Hayes v Willoughby [2013] UKSC 17 and upheld (for different reasons) the Court of Appeal decision. My post following the Court of Appeal can be read here.

To recap, Mr Willoughby was employed by one of Mr Hayes’s companies. After they had fallen out, for some 7 years between 2002 and 2009 Mr Willoughby had waged what was described “a lengthy and persistent campaign of correspondence and investigation” of and about Mr Hayes centring on allegations of fraud, embezzlement and tax evasion in relation to Mr Hayes’s management of his companies.

This took the form of sending numerous letters to the Official Receiver, the police and the Department of Trade and Industry (the Official Receiver alone estimated that he had received 400 communications) which continued after the bodies investigated and found no basis in the allegations.

As readers know well, the Protection from Harassment Act 1997 (“the Act”) makes harassment a civil wrong and a criminal offence. However, under s.1(3) of the Act it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime.

The trial judge had found that Mr Willougby’s conduct constituted harassment but that he had a defence under s.1(3)(a) because he genuinely believed in the allegations involving Mr Hayes and wished to persist in investigating them. Although there were other actions which could not be justified as conduct to prevent or detect crime, they did not constitute a separate course of conduct and therefore were protected by the campaign as a whole not being unlawful.

The Court of Appeal allowed Mr Hayes’s appeal on the ground that the defence is confined to a course of conduct the only 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 as whole was reasonable.

The Supreme Court has dismissed the appeal by Mr Willoughby by a majority of four to one (Lord Reed Dissenting) and doing so has introduced another concept into interpretation of conduct under the Act; ‘rationality’.

In the context of the defence, the prevention or detection of crime need not be the sole purpose of the alleged harasser, but only the dominant one. If that is so, that purpose will afford a defence provided that the purpose is rational. Broadly speaking, this test lies between pure subjectivity (the view of the perpetrator alone) and objectivity (the view of the mythical ‘reasonable man’).

As Lord Sumption puts it “A test of rationality only applies a minimum objective standard to the relevant person’s mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse.

If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed.

If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment.

Here, this tests meant that after June 2007, Mr Willoughby’s conduct against Mr Hayes was irrational. He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose.

The decision provides useful clarification of the application of the defence and will make it difficult to bring a claim for harassment where it is invoked. The defence is not, as first thought, limited to authorities such as the Police but is available to anyone who is pursuing a course of conduct for the purposes of detecting or preventing crime. In justifying that professed purpose, it is not necessary that the purpose be objectively reasonable; the onus will be on the person claiming harassment to show that the purpose was irrational.

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Driskel v Peninsula Business Services Ltd EAT/1120/98

Picture of water drop

The drip effect is critical

This is a useful authority as it records and affirms the correct approach to claims involving a series of incidents, something of crucial importance when dealing with a course of conduct of harassment.

The most telling references are from Reed and Bull Information Systems Ltd v Stedman (1999) 1RCR 299:

“It is particularly important in cases of alleged sexual harassment that the fact finding tribunal should not carve up the case into a series of specific incidents and try (to) measure the harm or detriment in relation to each.”

And an unidentified decision of a U.S. Federal Appeal Court, which stressed:

“….. the trier of fact must keep in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate and that the work environment may exceed the sum of the individual episodes.”

Therefore, here the EAT concluded that the correct approach should be:

“The Tribunal hears the evidence and finds the facts. As has already been pointed out it is desirable not to include in this exercise judgments as to the discriminatory significance, if any, of individual incidents – judgment thus far should be limited to the finding of all facts that are prima facie relevant. If ad hoc assessments ‘discrimination or no’ are made the result is a fragmented and discursive judgment; more importantly, there is the potential noted in Reed and Bull for ignoring the impact of totality of successive incidents, individually trivial.”

 Driskel v Peninsula Business Services Ltd EAT/1120/98

 

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Iqbal v Dean Manson [2011] EWCA Civ 123

A critical case especially where there is a history of seemingly trivial incidents. In finding that sending 3 letters was capable of amounting to harassment, it stresses the importance of looking at the totality of the course of conduct and not at individual events.

Rather than summarise badly, the best thing is to quote directly:

“In my judgment, the Act is concerned with courses of conduct which amount to harassment, rather than with individual instances of harassment. Of course, it is the individual instances which will make up the course of conduct, but it still remains the position that it is the course of conduct which has to have the quality of amounting to harassment, rather than individual instances of conduct. That is so both as a matter of the language of the statute, and as a matter of common sense. The Act is written in terms of a course of conduct: see sections 1(1), 1(2), 1(3), 2(1), 3(1), 7(3). That course of conduct has to amount to harassment, both objectively and in terms of the required mens rea (see section 1(1)(b)). In the case of a single person victim, there have to be “at least two occasions in relation to that person” (section 7(3)(a)), but it is not said that that those two occasions must individually, ie standing each by itself, amount to harassment. The reason why the statute is drafted in this way is not hard to understand. Take the typical case of stalking, or of malicious phone calls. When a defendant, D, walks past a claimant C’s door, or calls C’s telephone but puts the phone down without speaking, the single act by itself is neutral, or may be. But if that act is repeated on a number of occasions, the course of conduct may well amount to harassment. That conclusion can only be arrived at by looking at the individual acts complained of as a whole. The course of conduct cannot be reduced to or deconstructed into the individual acts, taken solely one by one. So it is with a course of communications such as letters. A first letter, by itself, may appear innocent and may even cause no alarm, or at most a slight unease. However, in the light of subsequent letters, that first letter may be seen as part of a campaign of harassment.”

I wish that one day I might be able to express things so well.

Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123

 

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Conn v Sunderland City Council [2007] EWCA Civ 1492

Crime scene police line tape

Must each incident be a crime? No is the correct answer.

Often cited as authority for the proposition that each incident in a course of conduct has to be a criminal offence. Not only is that overstating the decision but it would certainly amount to bad law.

The PHA makes harassment a criminal offence as well as a civil tort but to suggest this means the conduct has to be criminal before it can be harassment is put the cart before the horse and defeat the purpose of the PHA (which was to criminalise conduct which would otherwise be lawful).

The correct position was neatly expressed in the same month by Lord Emslie in Robertson v Scottish Ministers [2007] CSOH 186; “criminality is … a consequence rather than a prerequisite of civil harassment under section 1(1) [of the PHA]”.

In practice, that overstated interpretation of has been fatally undermined by subsequent decisions (see the list below) though the following words of Gage LJ should be a mantra:

“It seems to me that what, in the words of Lord Nicholls in Majrowski, crosses the boundary between unattractive and even unreasonable conduct and conduct which is oppressive and unacceptable, may well depend on the context in which the conduct occurs. What might not be harassment on the factory floor or in the barrack room might well be harassment in the hospital ward and vice versa. In my judgment the touchstone for recognizing what is not harassment for the purposes of ss 1 and 3 will be whether the conduct is of such gravity as to justify the sanctions of the criminal law.”

For a cracking example of obviously non-criminal conduct which could amount to harassment, look at Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46

Conn v City of Sunderland [2007] EWCA Civ 1492

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Kellett v DPP [2001] EWHC Admin 107

Authority for the proposition that conduct about which the complainant only learns from a third party may properly form part of a course of conduct even when the defendant had asked that the complainant not be informed.

The defendant had telephoned the complainant’s place of work and, even though, he asked that she not be told about his calling, once she was informed, the calls formed part of the course of conduct.

Kellett v DPP [2001] EWHC Admin 107

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