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Wednesday, 14 September 2016

Search Warrants and Judicial Reviews

The following is a TV Licensing Blog guest post:

Disclaimer: the author is not a lawyer and this piece is not a substitute for legal advice. Judicial review is a very complex area of law and if at all possible the services of a solicitor or barrister with experience in public law should be sought.

The author makes the assumption that the courts would apply the same safeguards that apply to search warrants obtained by the police or other law enforcement agencies to warrants obtained by TV Licensing. Although this assumption is a reasonable one to make, it has not yet been tested in court.

TV Licensing have previously been known to obtain search warrants on dubious grounds:

To my knowledge nobody has successfully challenged these warrants to date. This is where I think judicial review may serve a useful purpose. Judicial review is a process whereby a person who is aggrieved by the action or decision of a public authority applies to the High Court to challenge the lawfulness of that decision. The High Court can then declare that decision unlawful and may award damages if appropriate.

There have been a number of cases since the late 1990s where the High Court have declared search warrants obtained by the police and other law enforcement agencies to be unlawful. To date no TV Licensing warrant has ever been challenged in this way, which is something I hope can be changed in future.

Search Warrants
TV Licensing has the power to apply for a warrant under section 366 of the Communications Act 2003, authorising them to search any premises (by law premises is broadly defined as a building or vehicle) and examine and test any television receiver found there. TV Licensing will have to satisfy a Magistrate that there are reasonable grounds to suspect that live television or BBC iPlayer is being watched without a licence or that television receiving equipment is installed without a licence and that one or more of the following conditions is met:
  • that there is no person entitled to grant entry to the premises or vehicle with whom it is practicable to communicate;
  • that there is no person entitled to grant access to the evidence with whom it is practicable to communicate;
  • that entry to the premises or vehicle will not be granted unless a warrant is produced; or
  • that the purpose of the search may be frustrated or seriously prejudiced unless the search is carried out by a person who secures entry immediately upon arriving at the premises or vehicle.
A warrant is applied for by one of TV Licensing’s representatives signing a deposition (also known as an information) and putting this in front of a Magistrate, who can and should ask them questions regarding this. The Magistrates Court will keep a copy of the deposition, usually for 12 months after the warrant was granted.

If TV Licensing fails to satisfy the Magistrate that they have reasonable suspicion of an offence being committed or that one of the above access conditions apply, the Magistrate should not grant the warrant. If the Magistrate does, the warrant may be unlawful. If TV Licensing withholds information from or gives misleading information to the Magistrate, the warrant may be unlawful, regardless of whether there was any deliberate intention to withhold information or mislead the Magistrate.

Reasonable suspicion does not mean concrete evidence of guilt, but in the context of suspected TV License evasion it is likely to mean a report by a neighbour that you are watching TV without a licence or a visiting officer hearing or seeing a BBC iPlayer programme being played in the background. In my opinion something as general as seeing a TV screen or hearing a TV in operation (without being able to determine that live television rather than a DVD is being watched) is not sufficient to justify reasonable suspicion.

Any person authorised by the BBC may execute the warrant within one month with or without the police accompanying them. Reasonable force may be used to gain entry to the premises, though I understand that it is TV Licensing’s policy not to use force.

The occupant or person in charge of premises must give TV Licensing such assistance as they may reasonably require when executing a warrant. What this means in practice is not specified, but in my opinion would include showing where any TV monitors, remotes or cables are but not operating them.

Obstruction of a warrant is an offence. The point of this piece is to advocate a lawful way to challenge TV Licensing warrants without obstructing their execution.

The full text of section 366 can be found here:

A helpful explanatory note can be found here:

In addition to all this, TV Licensing need to satisfy the Criminal Procedure Rules (Part 47 of which deals with the application for search warrants in criminal investigations) when applying for their warrant. The most important of these is Part 47.26 (3) which states:

"The application must disclose anything known or reported to the applicant that might reasonably be considered capable of undermining any of the grounds of the application."

What this means is that because you do not have the opportunity to contest TV Licensing’s submissions to the Magistrate when they are applying for a warrant, they cannot simply present their side of the case and ignore anything that doesn’t help them but must put both sides of the case before the Magistrate. For example, if TV Licensing’s evidence is that one of their representatives heard a TV being used but that representative is hard of hearing, they would have to state it as it would undermine their application. Or if you told TV Licensing’s representative that what could be heard in the background was a DVD, they could not simply say “I heard the television in the background” but would have to also state the explanation you gave so the Magistrate can consider it.

If TV Licensing omit anything when applying for the warrant that might have changed the Magistrates mind, the warrant may be unlawful.

You can read Part 47 of the Criminal Procedure Rules here:

If A Warrant Is Executed
Whilst I will explain how a warrant can be challenged, I share TV Licensing Blog’s advice that full cooperation should be given if TV Licensing turn up with a warrant. This is because even if the warrant was unlawfully obtained, it is still a valid court order until a higher court rules it unlawful and obstructing the execution of the warrant is a criminal offence. At the same time, I would advise that you inform TV Licensing that you intend to challenge the lawfulness of the warrant. The following form of words could be used:

“I understand that you have obtained a warrant to enter my home. It is my view that this warrant has been unlawfully obtained. I will allow you to enter my home and execute the warrant but must inform you that I will apply for a judicial review of the warrant if you do so.”

If you record the search, you may want to make sure the above wording and any acknowledgement that it is understood is recorded. Alternatively make a written note and ask TV Licensing’s representative and/or any accompanying police officer to sign below your note to acknowledge that they understood it.

I would then advise cooperating with the search, remaining polite and avoid raising your voice. Also avoid getting into any discussions and don’t try to quote the law at TV Licensing’s representatives or the police officers they are with. Remember that if you want to challenge the warrant later your recording of the search and/or your and TV Licensing’s account of it may be scrutinised by a High Court judge and it will not help you if you look unreasonable or pedantic.

If TV Licensing’s representative attempts to interview you, I would advise politely saying something along the lines of “I wish to exercise my right to silence and am not prepared to answer questions.” You can then answer “no comment” to answer further questions. It is important to distinguish between questions relating to the search such as “where is the remote” (which I would advise answering so as not to be accused of obstruction) and interview questions such as “when did you last use the TV” (which I would advise politely refusing to answer).

Judicial Review
Judicial review is a Common Law process developed by the courts over the last few decades. It literally means what it says as a judge from the High Court will review the lawfulness of an action of decision made by a public body, and if appropriate declare a decision to be unlawful and award damages. A public body is broadly any government department, the police, a regulatory body set up by the government, a court. In my opinion TV Licensing would be considered a public body for the purposes of a judicial review as they represent the BBC in exercising certain functions enshrined in law.

Judicial reviews must normally be launched no later than 3 months of the action or decision you want the court to review taking place, so you must act fast. If possible I would advise asking the Magistrates Court that granted the warrant to provide a copy of TV Licensing’s deposition, but if you cannot get this in time proceed with the judicial review. You can ask the court considering the judicial review to order the deposition to be produced at a later stage.

You will have to go through the following steps for a judicial review:

1. Write to TV Licensing stating that you consider their warrant to be unlawful. State that if they do not respond within 14 days you will commence judicial review proceedings. State what you want them to do, for example issue a declaration that their warrant was unlawful, make a formal apology and pay compensation. This is called a “letter before claim” and is an important part of the judicial review process – it is important to make sure it sounds concise and reasonable.
2. If TV Licensing do not respond within 14 days, or you are not satisfied with their response, fill out an application for judicial review. Under the defendant section of the form put TV Licensing’s details as the first defendant and the Magistrates Court that granted the search warrant as the second defendant. Send a copy to the High Court, TV Licensing and the Magistrates Court that granted the warrant. You will need to state the background to your case and outline why you believe TV Licensing’s warrant was unlawful, for example, “I believe that the evidence TV Licensing used to apply for the warrant was misleading because it failed to mention...” Use straight forward language as much as possible.
3. The High Court will consider your application. If it considers your case to be arguable, you and TV Licensing will usually have the opportunity to provide evidence and any submissions of fact or law you want the High Court to consider. If the High Court considers that your case has no reasonable prospect of success (i.e. it is unarguable and a waste of its time) your claim will be struck out and the matter will go no further.
4. If your case is arguable, the High Court will consider your and TV Licensing’s evidence and submissions and may decide the case based on this or order a hearing to take place where oral evidence and submissions will be heard.
5. The High Court will then make a judgment. Usually this will be a few weeks after any hearing. The judgment will be in writing and will be made publicly available.
6. Both you and TV Licensing will have the opportunity to appeal the High Court’s judgment. Appeals are generally only successful if your case presented a “new” point of law that has never previously been argued in a court. In my opinion this is unlikely to be the case in a judicial review of a TV Licensing warrant.

Guidance on judicial reviews can be found on the Ministry of Justice website:

An application form can be found here:

I strongly recommend trying to get legal advice and representation if you go down the judicial review route. This is because it is a complex area of law and in all likelihood TV Licensing be represented by one or more experienced barristers. However, if you cannot afford or otherwise get legal representation (some lawyers may give advice or representation for “public interest” cases on a pro bono basis), the Bar Council’s guidance is quite helpful. The Bar Council is the professional body that represents all barristers in England and Wales.

TV Licensing Blog comment: We are grateful to our reader Alex for providing this article.


Maryon Jeane said...

Many thanks for this excellent post/article; all duly noted. If TV Licensing/Capita have the temerity to execute a search warrant here I will certainly follow this advice to the letter and make an immediate application for a judicial review.

Anonymous said...

This might explain why it is so difficult to get the disposition from the court/TVL
They are stalling until after the 3 month time limit for the Judicial Review has passed.

Anonymous said...

The problem is that if you are applying for a judicial review the burden of proof is on you to prove (on the balance of probabilities) that TV Licensing's warrant was unlawful. Without the deposition / information this could be very difficult as you will not know what their grounds for obtaining the warrant were. However, the default position for any law enforcement agency (and I for the purposes of a search warrant TV Licensing can tentatively be called a law enforcement agency) should be that warrant depositions / information's should be disclosed to the occupant after the warrant had been executed, as a person has the right to know on what basis his privacy was intruded on (this is supported by case law). The only exception to this when the deposition / information includes sensitive information such as the existence of an informant, surveillance, bugging, etc. - clearly this will never arise with TV Licensing warrants and there should therefore be no grounds not to disclose the deposition / information.

If you are in a situation where TV Licensing refuse to or delay in disclosing the deposition, I would suggest commencing the judicial review on the basis of you believing that the search warrant was unlawful as TV Licensing were unwilling to provide the evidence of its lawfulness. (I cannot stress enough that legal advice should he sought if at all possible of course.)

Hope this helps.


Fred Bear said...

Thanks to the Monthly Performance Packs being released without being properly redacted, we know that in 2014/15 only 115 Search Warrants were executed in the whole of the UK. TV Licensing really isn't set up for in depth investigations - it assumes everyone needs a licence and then relies on people either paying up voluntarily or incriminating themselves to a door-stepping goon. Applying for and executing a warrant would be an expensive process and would take a goon away from their usual routine of plodding around the street with a TVL178 form. It is likely that the BBC/Capita loses money every time a warrant is applied for.