Why we're here:
This blog is to highlight the unjust persecution of legitimate non-TV users at the hands of TV Licensing. These people do not require a licence and are entitled to live without the unnecessary stress and inconvenience caused by TV Licensing's correspondence and employees.

If you use equipment to receive live broadcast TV programmes, or to watch or download on-demand programmes via the BBC iPlayer, then the law requires you to have a licence and we encourage you to buy one.

If you've just arrived here from a search engine, then you might find our Quick Guide helpful.

Wednesday, 31 January 2018

An Act is a Law

The following is a TV Licensing Blog guest post:

A lot of us who are unhappy with the way TV Licensing goes about its business have come across a group of people who call themselves "Freemen on the Land" (FMOTL), who claim to have a magic solution. They are full of pseudo legal arguments and can cause a lot of confusion, so when TV Licensing Blog asked me to write about why their arguments don't work I was only too happy to help.

What is a Law?
British law is comprised of four sources, all of which can be referred to as "laws". There are some differences between England and Wales, Scotland and Northern Ireland but they all have the same type of system.

1. Primary legislation
Acts of Parliament (also known as statutes) such as the Communications Act 2004, sections 363 - 366 of which deal with TV licences. The principle of parliamentary sovereignty means that parliament can legislate on anything it likes.

2. Secondary legislation
Laws passed in areas where an Act of Parliament (called "enabling legislation") has given another body the power to legislate. For example, section 363 of the Communications Act 2003 lets the Secretary of State pass regulations defining what constitutes a television receiver. Secondary legislation can be annulled by a resolution of both Houses of Parliament or by a court if it is outside the scope of the Act of Parliament that enabled it.

3. Common Law
Law made by judges through cases they decide, either because there is no law covering a particular area or because the correct interpretation of an Act of Parliament needs to be decided. Judges' decisions become binding on lower courts but can be overruled by judges in higher courts. Acts of Parliament take precedence over the common law. An example of a ruling relevant to TV Licensing is the Rudd case, where the House of Lords ruled that the fact that a television set is available for use does not constitute evidence of its use if the occupier has a credible reason for its existence.

4. European Law
Directives and regulations made by the European Union and rulings of the European Court of Justice. None of these are relevant to TV Licensing so I'll give discussion of these a miss.

Criminal offences can be created by Acts of Parliament, Common Law or occasionally secondary legislation.

So in a nutshell, parliament makes laws or delegates the making of them to another body and the courts enforce them, interpret them and fill in any gaps. Simple enough, right?

FMOTL Arguments
Freemen on the Land view parliament and the state as a corporate entity that you can opt out of by withdrawing consent to abide by its rules. They therefore believe that Acts of Parliament do not apply to them if they do not consent to them and will commonly say "an Act is not a law". As a result they believe that they are immune from things like a needing a driving licence, paying tax and needing a TV licence if they don't consent to the relevant Acts of Parliament.

They claim to believe in the Common Law, except that their interpretation of Common Law seems to be whatever suits their agenda rather than the interpretation I have given above. Their pseudo legal arguments require very ritualistic steps, such as using coloured inks and ornate seals to certify documents and a peculiar but very particular choices of words.

Associate Chief Justice Rooke of the Alberta Court of the Queen's Bench in Canada wrote a 156 page judgment systematically tearing apart every FMOTL argument (I presume he must have become quite frustrated with them to have written what amounts to a small book). This passage sums up what FMOTL arguments boil down to.

"[73] A critical first point is an appreciation that the concepts discussed in these Reasons are frequently a commercial product, designed, promoted, and sold by a community of individuals, whom I refer to as “gurus”. Gurus claim that their techniques provide easy rewards – one does not have to pay tax, child and spousal support payments, or pay attention to traffic laws. There are allegedly secret but accessible bank accounts that contain nearly unlimited funds, if you know the trick to unlock their gates. You can transform a bill into a cheque with a stamp and some coloured writing. You are only subject to criminal sanction if you agree to be subject to criminal sanction. You can make yourself independent of any state obligation if you so desire, and unilaterally force and enforce demands on other persons, institutions, and the state. All this is a consequence of the fact gurus proclaim they know secret principles and law, hidden from the public, but binding on the state, courts, and individuals.

[74] And all these “secrets” can be yours, for small payment to the guru.

[75] These claims are, of course, pseudolegal nonsense. A judge who encounters and reviews OPCA [Organised Pseudolegal Commercial Arguments - the judge's term to describe FMOTL type arguments] concepts will find their errors are obvious and manifest, once one strips away the layers of peculiar language, irrelevant references, and deciphers the often bizarre documentation which accompanies an OPCA scheme. When reduced to their conceptual core, most OPCA concepts are contemptibly stupid."

Do FMOTL Arguments Work?

Despite whatever successes FMOTL claim, there are no documented cases of their arguments being accepted in court. Should anyone be told otherwise by a FMOTL they should demand hard evidence.

The simple fact is that whether people like it or not, and whether they consent to it or not, Parliament makes laws and the courts and machinery of the state will enforce them. FMOTL arguments may well delay and prolong court proceedings but they won't be accepted. Instead, people using them may find that judges' patience starts to run thin and in extreme cases people may find themselves in contempt of court.

Some examples of FMOTL arguments failing are:
- Driving without insurance, obstructing police and contempt of court [read more];
- Non payment of Council Tax [read more];
- Danny Allen, who believed that a search warrant obtained by TV Licensing was unenforceable if he didn't consent to it [read more].

Anyone trying FMOTL arguments to avoid paying for a TV licence may well find themselves prosecuted for licence evasion, found guilty and fined. If they don't pay the fine the court may send bailiffs to enforce it or impose a default prison sentence. No amount of claiming not to consent or that an Act is not a law will stop that.

Another common misconception that FMOTL have is that they don't need a TV licence because they don't have a contract with TV Licensing. This is wrong because the need to buy a TV licence to watch live TV programmes is not governed by contract law. The law (section 363 of the Communications Act 2003) makes it a crime to watch live TV programmes without a licence. So buying a licence means you are buying a permit to do something you would otherwise be forbidden from doing. It's similar to buying a driving licence so that you can drive vehicles, or a fishing licence so you can go fishing (the only difference being that neither the DVLA nor the Environment Agency send aggressive letters and goons to people who don't buy a licence).

So what's the solution?
Know the law and follow it. Section 363 of the Communications Act 2003 makes it a criminal offence to watch live TV programmes without a TV licence. So if you don't want to pay for a licence don't watch live TV programmes. You can watch non-BBC on demand programmes or DVDs without a licence. If you want to watch live TV or BBC iPlayer programmes then buy a licence.

If TVL send you threatening letters or send their goons to visit you, you are legally entitled to ignore them because the law doesn't require you to interact with them. Spouting pseudo legal nonsense serves no useful purpose and can be used against people.

If you are on the receiving end of a TV Licensing prosecution there are plenty of legal defences that can be relied on that are more effective than saying "an Act is not a law".

TV Licensing Blog comment: We are grateful to Bureaucrat of the TV Licence Resistance forums for providing this article.

If you've found this article useful please share it with your friends and consider using our Amazon referral link for your shopping.

1 comment:

nonroadusr said...

Very sound advice from Bureaucrat. People would do well to follow it.