TV Licence Court Cases: Defence and Mitigation

Last time we looked at the options available for anyone summoned to the Magistrates' Court for the offence of using a TV receiver without a valid licence.

Before we start a quick disclaimer that we are not lawyers, however, over the years we have accumulated considerable knowledge and experience of how TV Licensing handles its prosecution cases.

The summons, you may remember from earlier, is a document issued by the court, which effectively invites the defendant to respond in person to TV Licensing's claims that they have committed an offence. The issue of a summons is a purely administrative matter and in no way indicates the final outcome of the case.

In responding to the summons the defendant has the option of entering a guilty or not guilty plea. It is only by pleading not guilty, thereby forcing TV Licensing to prove their case at trial, that the defendant has any chance of challenging their evidence. In all likelihood that evidence may be weak, flawed, or in some cases non-existent. If there is the slightest doubt about the soundness of TV Licensing's case, we would encourage a not guilty plea - that way they will have to work to prove the defendant's guilt beyond reasonable doubt.

It amazes us how many innocent people plead guilty when they receive the summons because they consider it the easiest option. Consider this analogy: If you were wrongly accused of driving without insurance, would you plead guilty when you received a summons through the post? No, of course not - you'd be rightly furious that the prosecution had tried to tarnish your good name and you'd expect them to stump up some credible evidence to back their claims. Dealing with a TV licence summons should be no different.

In the remainder of this post we shall explore some common factors that can be used in the defence or mitigation of TV licence evasion charges, assuming a not guilty plea is entered and the case does go all the way to trial.

1. The law (written in legalese).

Anyone that intends to mount a credible defence against TV licence evasion charges needs to be familiar with the law, because TV Licensing has to prove, beyond reasonable doubt, that the law has been broken.

Section 363 of the Communications Act 2003 (as amended 1st September 2016) is the primary legislation covering the TV licence. Forget any misguided Freeman of the Land notion that because it is an Act it is somehow not the law - anyone displaying that attitude in court will invariably be making life difficult for them self.

- Section 363 (1) of the Act states: "A television receiver must not be installed or used unless the installation and use of the receiver is authorised by a licence under this Part."

- Section 363 (2) states: "A person who installs or uses a television receiver in contravention of subsection (1) is guilty of an offence."

- Section 363 (3) states: "A person with a television receiver in his possession or under his control who: (a) intends to install or use it in contravention of subsection (1); or (b) knows, or has reasonable grounds for believing, that another person intends to install or use it in contravention of that subsection: is guilty of an offence."

As a television receiver is mentioned in each of those sub-sections, it follows that the definition of a television receiver is important too. This definition is included in section 368 of the Act:

- Section 368 (1) states: "In this Part “television receiver” means any apparatus of a description specified in regulations made by the Secretary of State setting out the descriptions of apparatus that are to be television receivers for the purposes of this Part."

- Section 368 (3) states: "References in this Part to using a television receiver are references to using it for:

• receiving all or any part of any television programme, or
• receiving all or any part of a programme included in an on-demand programme service which is provided by the BBC

and that reference to the provision of an on-demand programme service by the BBC is to be read in accordance with sections 368R(5) and (6)."

The specified regulations, as mentioned in section 368 (1) of the Act, are the Communications (Television Licensing) Regulations 2004 (as amended 1st September 2016).

Sections 9 (1) and (2) of the Regulations define a television receiver and television programme service as follows:

- Section 9 (1): "Subject to paragraph (2), in Part 4 of the Act (licensing of TV reception), "television receiver means any apparatus installed or used for the purposes of receiving (whether by means of wireless telegraphy or otherwise)-

• (a) any television programme service, or
• (b) an on-demand programme service which is provided by the BBC,

whether or not the apparatus is installed or used for any other purpose."

- Section 9 (2): "In this regulation, any reference to receiving television programme service includes a reference to receiving by any means any programme included in that service, where that programme is received at the same time (or virtually the same time) as it is received by members of the public by virtue of its being broadcast or distributed as part of that service."

2. The law (simplified version).

In short, a person can only be guilty of an offence if they have either:

- Used or installed a television receiver without a valid licence, or

- Are in charge of a television receiver they have reasonable grounds to believe someone else will use without a valid licence.

In practical terms, in order to be found guilty the defendant must have been caught/admitted using a television receiver without a licence.

The equipment can only be deemed a television receiver if it is used to receive television programme services or BBC on-demand programme services, whether or not it can also be used for any other purpose. If the equipment receives anything other than television programme services or BBC on-demand programme services, then it cannot be a television receiver. If the equipment is not a television receiver then TV Licensing's prosecution will fail on that point of law.

A television programme service is a television programme, with or without sound, that is broadcast on a normal terrestrial/satellite TV channel and is available to other members of the public (viewers) at the same time (or virtually the same time).

Note that a licence is needed to watch any TV programme service, not just those on BBC channels. Some people are of the mistaken belief that because the licence fee funds the BBC, it is only chargeable if they watch BBC channels. That is legally incorrect.

Defences.

Defence is information presented to the court that refutes the honesty, reliability or accuracy of the charges the defendant faces. The defendant could reasonably offer the following points in defence:

- The equipment the TV Licensing goon observed was not a television receiver, so therefore no offence could have been committed. This might be the case if:

• It was only being used to watch non-BBC on-demand programme services, which were being streamed via the internet.
• It was only being used to watch pre-recorded DVDs.
• It was only being used as a games console/computer monitor.
• It was only being used to view CCTV images.
• It was only being used to listen to radio programmes.
• It was only being used to display images held on a removable storage device (e.g. to view a slideshow of photos held on an SD card).

- The equipment the TV Licensing goon observed was not installed, so therefore no offence could have been committed. This might be the case if:

• It was unplugged at the wall: This argument will be stronger if the equipment was demonstrably positioned away from any wall socket.
• The goon them self asked/acted to plug in the equipment, which was otherwise uninstalled.
• The goon them self asked/acted to view a television programme service or BBC on-demand programme service, which would not otherwise have been viewed.
• There was no aerial plugged in or present: In the digital era it is not possible to receive programmes without an aerial, which means an offence cannot be committed.
• The screen on the equipment was defective rendering it incapable of displaying television programmes or BBC on-demand programmes.

- The TV Licensing goon did not enter the property (or their view inside was obscured), so therefore has no way of confirming that a television receiver was actually in use.

- The TV Licensing goon did not touch or test the equipment, so therefore has no way of confirming it was being used as a television receiver instead of for an alternative non-licensable purpose (like watching pre-recorded DVDs).

- The TV Licensing goon did not read the caution before completing the TVL 178 (Record of Interview) form, so the defendant was unaware of their legal rights when interviewed.

- The TVL 178 form contains provable errors or omissions, which casts into doubt the accuracy of other information recorded thereon.

- The defendant's copy of the TVL 178 form is different to TV Licensing's copy, which casts into doubt the accuracy of the information recorded thereon.

- The TV Licensing goon made additions to the TVL 178 form after the defendant had signed it, which casts into doubt the accuracy of the information recorded thereon.

4 Mitigation.

Mitigation is information presented to the court that suggests the offence is less serious than it would otherwise be considered, in the hope that a more lenient sentence will be imposed. When deciding their sentence the Magistrate/Judge will consider the harm caused by the offence and the culpability of the offender. The defendant could reasonably offer the following points in mitigation:

- They are unemployed.

- They are in receipt of benefits.

- They are disabled or have a mental illness.

- They are a single parent, who only uses TV for the benefit of their children.

- They admitted their guilt at the earliest opportunity and co-operated with TV Licensing employees.

- They were not the normal occupier of the property where the offence was being committed.

- They were genuinely confused over their responsibility to obtain a TV licence (e.g. their landlord had told them a licence was already in force; they were using portable equipment).

- They had attempted to buy a licence, but the transaction was unsuccessful or incomplete (e.g. some payments had been made via payment card; a Direct Debit payment failed; the internet connection failed during an attempt to purchase a licence online; a cheque/postal order had been posted but no licence received).

- They obtained a licence as soon as they were informed of the offence.

Remember that by far the most effective weapon members of the legally-licence-free community can use against TV Licensing is non-contact. By simply ignoring TV Licensing correspondence and employees a lot of potential problems, including the threat of prosecution, can be avoided later on.

If you've found the information in this post useful, please share it with your family and friends. We shall endeavour to review the information in this post on a regular basis. Edit (20/9/15): You might also like to read our future post about the Rudd defence. 

Edit (28/8/16): This post has been updated to reflect the changes in legislation taking effect from 1st September 2016.