Mr Willoughby is a former employee of one of Mr Hayes' companies. After the men fell out, in 2002, Willoughby began a campaign of harassment against Hayes, writing letters to the police, the Official Receiver and the Department of Trade and Industry alleging, among other things, that his former employer was an embezzler and that he had committed tax fraud. Mr Hayes was investigated by these bodies and no factual basis to the allegations was found. Willoughby nevertheless continued his campaign. The Protection from Harassment Act 1997 makes harassment both a civil wrong and a criminal offence. S.1 (3) of the Act, however, makes it is a defence for a person to show

(a) that his course of conduct was pursued for the purpose of preventing or detecting a crime;

(b) that it was pursued under any enactment or rule of law, or

(c) that in the particular circumstances, the pursuit of the course of conduct was reasonable.

Willoughby argued that he was protected from prosecution under the Act because he genuinely believed that he was stopping a criminal act by his ex-employer. His argument was successful at first instance, but unsuccessful in the Court of Appeal.

The Court of Appeal found that Willoughby’s actions were not reasonably or rationally linked to crime prevention and the prevention of crime had to be the sole purpose of the alleged harasser. Thus he could not avail of the defence. The Supreme Court dismissed Willoughby's appeal by a majority of four to one. The Supreme Court held that no distinction existed between the purpose of the conduct and the purpose of the alleged harasser as such acts have no other purpose but that of the perpetrator. Instead, the Court considered that the issue was by what standard that person’s purpose was to be assessed.

The Court concluded that a test of reasonableness was deliberately not included in s 1(3) (a) as it was in other sections of the Act, and also held that a wholly subjective test was also inappropriate. The Court held that, ultimately, the necessary control mechanism was the concept of rationality, one which is established in public law and contract, and distinct from reasonableness.

From paragraph 14 of the judgment, “A test of rationality … applies a minimum objective standard to the relevant person’s mental processes. 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 as outrageous in its defiance of logic as to be perverse.”

Form paragraph 15, “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. Such a test would in any event apply to public authorities. It is not a demanding test, and it is hard to imagine that Parliament could have intended anything less.” On the facts, there was no rational connection between Willoughby’s supposed purpose and acts. http://bit.ly/YTMKc4