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This is probably as much as can usefully be said in general terms about this protean concept. Ratio |
I do not accept that any distinction can be drawn of the kind that Moses LJ suggests, between the purpose of a course of conduct and the purpose of the person engaging in it. Ratio |
Acts such as these can have no purpose other than that of their perpetrator. Ratio |
The question is by what standard that persons purpose is to be assessed. Ratio |
In the authorities about section 1(3)(a) of the Protection from Harassment Act 1997, discussion of this question has generally been conducted in terms of a stark choice between an objective and a subjective test. Ratio |
In EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 (QB), paras 28-29, Paul Walker J held that the test of purpose was subjective. Ratio |
The trial judge in the present case agreed with him. Ratio |
On the other hand, Tugendhat J in KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB) at [144] thought that the test was whether the conduct was objectively justified as a means of preventing or detecting crime, at any rate when it infringed the victims rights under article 8 of the European Convention on Human Rig... |
On this appeal the parties have adopted one or other view, according to their interest, fortifying their arguments with authorities relating to other legal contexts in which purpose is relevant. Ratio |
The difficulty about a wholly objective test is that it is not consistent with either the language or the purpose of the Act. Ratio |
The only wholly objective test which could work in this context is one based on the reasonableness of the alleged harasser in supposing that there was a crime to be prevented or detected or that his conduct was calculated to achieve those ends. Ratio |
But where the draftsman intended to apply a test of reasonableness, he said so in terms, notably in sections 1(1)(b) (knows or ought to know), section 1(2) (if a reasonable person... would think) and 1(3)(c) itself (if... the course of conduct was reasonable). Ratio |
If the defence under section 1(3)(a) was limited to cases where it was reasonable to seek to prevent or detect crime in the way that the alleged harasser set about it, it would have been unnecessary because it would have been subsumed in the general defence of reasonableness provided by section 1(3)(c). Ratio |
Moreover, it is hard to imagine that such a limitation would be workable as applied to public authorities even if it could be reconciled with the language of section 1. Ratio |
A wholly subjective test, on the other hand, such as the one that the judge applied to Mr Willoughby, is equally problematic. Ratio |
Before the defence can arise, it must be shown that the victim has been harassed. Ratio |
As Lord Nicholls pointed out in Majrowski v Guys and St. Thomass NHS Trust [2007] 1 AC 224, para 30, bearing in mind that we are concerned with conduct that is a criminal offence as well as a civil wrong, section 1 is confined to serious cases. Ratio |
The conduct relied upon must cross the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. Ratio |
To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. Ratio |
A large proportion of those engaging in the kind of persistent and deliberate course of targeted oppression with which the Act is concerned will in the nature of things be obsessives and cranks, who will commonly believe themselves to be entitled to act as they do. Ratio |
Section 1(3)(a), although it was no doubt drafted mainly with an eye to the prevention or detection of crime by public authorities, applies equally to private persons who take it upon themselves to enforce the criminal law. Ratio |
Within broad limits, the law recognises the right of private persons to do this, but vigilantism can easily and imperceptibly merge into unlawful harassment. Ratio |
Cases such as the present one, where the harassment is said to consist in repeated and oppressive attempts to detect crime are quite likely to involve conduct falling within the sub- category of harassment defined as stalking by section 2A (added by section 111(1) of the Protection of Freedoms Act 2012). Ratio |
This includes not just sexual stalking, but any persistent course of harassment that consists in repeatedly following a person, contacting or attempting to contact them, publishing material about them, monitoring their use of the internet, loitering in any place, or watching or spying on them: see section 2A(3). Ratio |
Conduct said to be directed to preventing crime is likely to be an even more significant category than conduct said to be directed to its detection. Ratio |
Recent cases before the courts illustrate the propensity of obsessives to engage in conduct which is oppressive enough to constitute harassment, in the genuine belief that they are preventing crime. Ratio |
These ranging from the more extreme wings of the animal rights movement to the lone schizophrenic vigilante whom Mr Wolman (appearing for Mr Willoughby) submitted would be protected by section 1(3)(a). Ratio |
Those who claim to be acting for the purpose of either preventing or detecting crime may at a purely subjective level entertain views about what acts are crimes which have no relation to reality, let alone to the law. Ratio |
Private persons seeking to enforce the law are not amenable to judicial review, as the police are. Ratio |
Unless they commit some other offence or civil wrong, such as assault or criminal damage, the Act of 1997 will be the only means of controlling their activities by law. Ratio |
It cannot be the case that the mere existence of a belief, however absurd, in the mind of the harasser that he is detecting or preventing a possibly non-existent crime, will justify him in persisting in a course of conduct which the law characterises as oppressive. Ratio |
Some control mechanism is required, even if it falls well short of requiring the alleged harasser to prove that his alleged purpose was objectively reasonable. Ratio |
I do not doubt that in the context of section 1(3)(a) purpose is a subjective state of mind. Ratio |
But in my opinion, the necessary control mechanism is to be found in the concept of rationality, which Eady J touched on in Howlett v Holding [2006] EWHC 41 (QB) and Moses LJ seems to have been reaching for in his judgment in the present case. Ratio |
Rationality is a familiar concept in public law. Ratio |
It has also in recent years played an increasingly significant role in the law relating to contractual discretions, where the laws object is also to limit the decision-maker to some relevant contractual purpose: see Ludgate Insurance Co Ltd v Citibank NA [1998] Lloyds Rep IR 221, para 35 and Socimer International Bank ... |
Rationality is not the same as reasonableness. Ratio |
Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. Ratio |
The question is whether a notional hypothetically reasonable person in his position would have engaged in the relevant conduct for the purpose of preventing or detecting crime. Ratio |
A test of rationality, by comparison, applies a minimum objective standard to the relevant persons mental processes. Ratio |
It imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as ... |
For the avoidance of doubt, I should make it clear that, since we are concerned with the alleged harassers state of mind, I am not talking about the broader categories of Wednesbury unreasonableness, a legal construct referring to a decision lying beyond the furthest reaches of objective reasonableness. Ratio |
Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. Ratio |
He 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. Ratio |
If he has done these things, then he has the relevant purpose. Ratio |
The court will not test his conclusions by reference to the view which a hypothetical reasonable man in his position would have formed. Ratio |
If, on the other hand, he has not engaged in these minimum mental processes necessary to acquire the relevant state of mind, but proceeds anyway on the footing that he is acting to prevent or detect crime, then he acts irrationally. Ratio |
In that case, two consequences will follow. Ratio |
The first is that the law will not regard him as having had the relevant purpose at all. Ratio |
He has simply not taken the necessary steps to form one. Ratio |
The second is that the causal connection which section 1(3)(a) posits between the purpose of the alleged harasser and the conduct constituting the harassment, will not exist. Ratio |
The effect of applying a test of rationality to the question of purpose is to enable the court to apply to private persons a test which would in any event apply to public authorities engaged in the prevention or detection of crime as a matter of public law. Ratio |
It is not a demanding test, and it is hard to imagine that Parliament can have intended anything less. Ratio |
The judges findings of primary fact, fairly read, mean that after June 2007 Mr Willoughbys vendetta against Mr Hayes was more than objectively unreasonable. Ratio |
It was irrational. Ratio |
His persistence was obsessive. Ratio |
He was no longer guided by any objective assessment of the evidence of Mr Hayess supposed criminality and there was no longer any logical connection between his supposed purpose and his acts. Ratio |
In the judges words, his unshakeable conviction of Mr Hayess guilt now preceded rather than followed any objective assessment of the evidence. Ratio |
He was proceeding with his campaign for its own sake, regardless of the prospect of detecting any crimes of Mr Hayes. Ratio |
There is no other way of characterising his persistence in pressing his allegations on the official Receiver and other investigatory authorities long after they had refused to deal further with him, so that his conduct was no longer capable of furthering the supposed purpose. Ratio |
It follows that Mr Willoughby cannot, in the sense meant by section 1(3)(a) of the Act, be regarded as having had that purpose or of having been guided by it. Ratio |
In these circumstances, it is strictly speaking unnecessary to decide whether the purpose specified in section 1(3)(a) must be the sole purpose of the alleged harasser. Ratio |
But I should record that Mr Allen QC (who appeared for Mr Hayes) did not attempt to defend this particular ground of the Court of Appeals decision and in my view it was indefensible. ARG |
A persons purposes are almost always to some extent mixed, and the ordinary principle is that the relevant purpose is the dominant one. ARG |
It follows that the only relevance of the three intrusions upon Mr Hayess privacy found by the judge, is that they were evidence of Mr Willoughbys state of mind. ARG |
The judge might have concluded that they demonstrated that Mr Willoughby was predominantly actuated by malice and resentment. ARG |
But he did not and that is all that there is to say about this aspect of the matter. ARG |
I would dismiss the appeal. RPC |
On that footing there is no issue about the terms of the Court of Appeals order, which will stand. RPC |
I agree that this appeal should be dismissed, essentially for the reasons given by Lord Sumption. RPC |
Parliament in enacting section 1(3) of the Protection from Harassment Act 1997 must have regarded paragraphs (a) and (b) as representing situations in which the stated purpose under paragraph (a), or the relevant enactment, rule, condition or requirement under paragraph (b), would by itself constitute sufficient justif... |
The Court of Appeal was clearly in error both in identifying a distinction under paragraph (a) between Mr Willoughbys purpose and the purpose of his course of conduct and in holding that the purpose of preventing or detecting crime must be the sole purpose for paragraph (a) to apply. Ratio |
Paragraph (a) focuses on Mr Willoughbys subjective purpose and it is sufficient if his predominant purpose fell within it. Ratio |
The judge, as I read his judgment, found that Mr Willoughbys predominant subjective purpose was to detect crime. Ratio |
Very often that finding would conclude the case. Ratio |
But, like Lord Sumption, I do not consider that it does here. Ratio |
If one asks whether Parliament can really 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 may have become, the answer I would give is negative. Ratio |
Mere unreasonableness is not the limit. Ratio |
But the law recognises looser control mechanisms such as complete irrationality, perversity, abusiveness or, indeed, in some contexts gross negligence. Ratio |
(As to the last, see eg Spread Trustee Co Ltd v Hutcheson [2011] UKPC 13, [2012] 2 AC 194, paras 50- 51 per Lord Clarke.) Ratio |
Which of these is in the present context adopted does not in my view ultimately matter. Ratio |
They all probably amount to very much the same thing. Ratio |
On the judges findings, Mr Willoughbys state of mind took his course of conduct outside paragraph (a), whether one describes it as irrational, perverse or abusive or as so grossly unreasonable that it cannot have been intended to be covered by that head of justification. Ratio |
LORD REED (dissenting) Ratio |
I agree that section 1(3)(a) of the Protection from Harassment Act 1997 is not subject to any requirement that the pursuit of the course of conduct, for the purpose of preventing or detecting crime, should have been reasonable: otherwise, given the terms of section 1(3)(c) (that in the particular circumstances the purs... |
Having reached that conclusion, I am with respect unable to agree that Parliament may nevertheless have intended to impose a requirement that the pursuit of the course of conduct should have been rational. Ratio |
That is so for three reasons. Ratio |
First, Parliament did not say so. Ratio |
On its face, a test of purpose usually refers to the object or aim which the defendant had in mind: purpose connotes an intention by some person to achieve a result desired by him (Sweet v Parsley [1970] AC 132, 165 per Lord Diplock). Ratio |
The purpose for which a course of conduct is pursued is therefore ordinarily ascertained by reference to the intention of the person who pursues it. Ratio |
To introduce a requirement of objective rationality requires the court to read in words which Parliament did not use. Ratio |
Furthermore, as Walker J observed in EDO MBM Technology Ltd v Axworthy [2005] EWHC 2490 at para 36, in enacting the Act Parliament was significantly extending the reach of the criminal and civil law in controversial circumstances. Ratio |
In doing so, care was taken to identify expressly occasions when conduct was to be judged by an objective standard. Ratio |
I have already referred to the terms of section 1(3)(c). Ratio |
The language employed in section 1(1)(b) (knows or ought to know), section 1(2) (if a reasonable person would think) and section 8(1)(b) (where it would appear to a reasonable person), to give only a few examples, similarly demonstrates that Parliament made it clear when it intended to impose an objective requirement. ... |
The implication is that it did not intend to impose such a requirement in section 1(3)(a), or in the similarly worded sections 4(3)(a), 4A(4)(a) (as inserted by section 111(2) of the Protection of Freedoms Act 2012) and 8(4)(b). Ratio |
Moreover, I cannot readily bring to mind any example, in any context, of a statutory requirement not of reasonableness but of rationality, the latter being understood as conceptually distinct from the former. Ratio |
Secondly, section 1(3)(a) and the similarly worded provisions elsewhere in the Act provide defences to criminal as well as civil liability. Ratio |
It is trite that a statute is not normally to be construed as extending criminal liability beyond the limits which Parliament itself made clear in its enactment. Ratio |
Thirdly, bearing in mind again that section 1(3)(a) and the other provisions to like effect limit the scope of criminal offences, some of which are triable on indictment, I would be slow to infer that criminal liability was intended to turn upon the subtle distinction between what is unreasonable and what is irrational... |
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