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Sunday, 27 August 2017

TV Licence Evasion: Not Guilty Trial Procedure

It is only by pleading not guilty that a person accused of TV licence evasion can put TV Licensing's evidence to the test.

Quite often, in our experience, TV Licensing's evidence will be so weak, flawed and even non-existent that it won't withstand the closer scrutiny of the court.

For that reason we would encourage anyone with the slightest concern about the veracity TV Licensing's case to plead not guilty.

Apologies to our readers in Northern Ireland, Scotland, the Isle of Man and the Channel Islands, but this article assumes the defendant has pleaded not guilty in a Magistrates' Court in England or Wales.

For the purposes of this article we shall use the terms "defence" and "defendant" interchangeably, as most defendants mount their own defence against TV licence evasion charges.

So the defendant has taken our advice and, despite TV Licensing's best efforts to persuade them otherwise, has entered a plea of not guilty. What happens next?

1. Trial scheduled.
At the end of the first Magistrates' Court hearing a date will be set for a trial to take place. If the defendant has entered a plea of not guilty by post, then it is possible for the trial to be scheduled in their absence, as long as they have given an indication of their availability.

The court will schedule the trial on a date that is mutually convenient for the defence and prosecution. Ideally the defence should seek a trial date at least 6 weeks after the first hearing, which will give them plenty of time to prepare beforehand.

The prosecution and defence will also have to indicate which witnesses they want present at the trial. We recommend the defence calls for TV Licensing's witnesses to attend in person, which will enable them to be cross-examined. TV Licensing might ask for its prosecution evidence to be tendered by way of "section 9 statements" instead of having its witnesses attend in person. If the defence accepts section 9 statements, which we would discourage, then there will be no opportunity to pick flaws in TV Licensing's evidence by way of cross-examination of its witnesses. It is also an inconvenience to TV Licensing if you make its witnesses attend in person, which is another good reason to do so.

The court will normally make a direction that TV Licensing should disclose all of its evidence to the defence within 28 days. If a trial has been scheduled for 6 weeks ahead, as we suggested earlier, this would give the defence around 2 weeks to carefully scrutinise TV Licensing's evidence.

Occasionally, if there are problems anticipated about the conduct of the trial, the court will set a pre-trial hearing a few weeks beforehand to thrash out the finer details of the trial. These hearings are very unusual in TV licence cases, so we won't dwell on them any further here.

The defendant should not enter into any discussion with the TV Licensing about the basis of their not guilty plea (see below).

2. Between first hearing and trial.
As sure as eggs is eggs TV Licensing will seek to establish the basis of the defendant's not guilty plea. If the defendant reveals that information, it will allow TV Licensing to prepare a better case against them. The defence should never reveal the basis of its not guilty plea to TV Licensing.

The defence should receive copies of all of the evidence TV Licensing intends to rely on at the trial. The defence should carefully study TV Licensing's evidence and prepare its case accordingly (see here and here for some ideas about that). If TV Licensing fails to provide this evidence as directed by the court, then the defence should get in touch with the court and let it know.

3. The day of trial.
If the defendant fails to attend for trial then TV Licensing will ask for the case to proceed in their absence. The court will almost certainly agree to that request and the defendant will be found guilty and sentenced accordingly.

If the defendant attends, which we would definitely recommend, then it is likely that the Capita Court Presenter (TV Licensing's prosecutor) will approach them prior to the trial hearing and seek to persuade them to change their plea to guilty. The Court Presenter will probably warn the defendant that "today's bench is very harsh" and "like to see TV licence evaders swinging from the gallows" or some such bullshit. It's all bluster designed to intimidate the defendant into changing their plea to guilty, thus guaranteeing TV Licensing victory. We'd encourage the defendant to stick to their guns and not to give an inch to TV Licensing. In reality the court will know exactly the way TV Licensing operates, having dealt with many of its half-arsed cases in the past.

Even at this late stage there is no guarantee that the trial will go ahead. Having failed to intimidate the defendant, the Court Presenter might decide to withdraw the charges rather than have TV Licensing's evidence (or possibly lack thereof) tested in open court.

4. The trial begins.
If the Court Presenter wants to stop the trial they will make a submission to the court that they want the charges withdrawn. The court doesn't have to agree, but almost certainly will. In the unlikely event that the court didn't agree to the charges being withdrawn, the Court Presenter could achieve the same outcome by stating that they were presenting no evidence. In that case the court would be obliged to dismiss the charges against the defendant. If the charges were withdrawn or dismissed in these circumstances the defendant should rightly feel aggrieved and should make the court aware of their displeasure at having their valuable time wasted by TV Licensing.

Suppose any of TV Licensing's witnesses fail to attend, there is a chance the Court Presenter will ask the court to adjourn the trial until another date. The defence should oppose TV Licensing's application for an adjournment on the basis that its witnesses were correctly warned and should have been in attendance. By not proceeding with the trial the defendant is being unfairly penalised by the errors of TV Licensing.

Courts are required to press ahead and dispose of cases at the earliest opportunity, so if the defence objects there is a strong chance TV Licensing's request for an adjournment will be refused. In all likelihood TV Licensing will be relying on only one witness - the goon that completed the TVL178 Record of Interview form. If that TV Licensing's sole prosecution witness fails to attend and court decides to press on with the trial regardless, then TV Licensing will be unable to offer any evidence and the charges against the defendant will be dismissed. You might think that sounds fanciful, but witnesses failing to attend is a surprisingly regular occurrence.

If the trial does go ahead, it will follow this general format:
  • Prosecution opening speech: TV Licensing will summarise their case against the defendant. They are likely to remind that court that the signed TVL178 form acts as a confession and that TV licence evasion is an absolute offence. TV Licensing will also try to discredit the defendant's case if known, which is another good reason not to tell them anything.
  • Prosecution witnesses: TV Licensing will call and examine its witnesses. Invariably this will be the goon that completed the TVL178 form. The goon will ask to refer to the notes of their visit they made at the time.
  • Cross-examination of prosecution witnesses: The defence will have the opportunity to cross-examine TV Licensing's witnesses. This is the time to highlight any discrepancies in the goon's evidence and put them on the back foot.
  • Prosecution re-examination of its witnesses: TV Licensing will have the opportunity to clarify any points from its own witnesses that may have arises during the defence's cross-examination.
  • Submission of no case to answer: The defence has the option of submitting there is no case to answer at this stage (e.g. the prosecution has failed to submit sufficient evidence to prove their case). In the unlikely event that the Magistrates agree the case will be dismissed and the defence can ask for costs to be awarded in its favour.
  • Defendant's evidence: The defendant can choose to give evidence from the witness box. They do not have to, but the court may take into account their failure to do so when determining their guilt or innocence.
  • Expert witnesses: If applicable. Unlike other witnesses who can only deal in fact, expert witnesses can be called upon to give opinion on matters within their technical expertise.
  • Character witnesses: If applicable, character witnesses can be called to support the defendant's good standing. If a character witness is called then TV Licensing has the right to impugn the defendant's supposed good character by mentioning any previous convictions they might have.
  • Defence witnesses: The defence will call and examine their witnesses.
  • Cross-examination of defence witnesses: TV Licensing will have the opportunity to cross-examine the defence witnesses.
  • Defence re-examination of its witnesses: The defence will have the opportunity to clarify any points from its own witnesses that may have arisen during TV Licensing's cross-examination.
  • Defence closing speech: The defence will summarise its key arguments, highlighting any evidence that supports a not guilty verdict.
During their examination of the defendant the Court Presenter will be trying to pen them into a corner where it is impossible for them to deny their guilt. The Court Presenter will also attempt to get the defendant to agree with their version of events, which they should refrain from doing. Another TV Licensing ploy is to press ahead with the next question before the defendant has fully answered the current one. This means that important aspects of the defendant's evidence are cut short, which is of clear benefit to the TV Licensing. The defendant is advised to give detailed answers in response to the Court Presenter's questioning - they must not be swayed from the substance of their defence: they were not receiving TV programmes without a valid TV licence.

The Magistrates will retire to weigh up the evidence and consider their decision. After a normally short deliberation they will return to the courtroom and announce their decision. If a not guilty verdict is returned the defence should ask the court to award costs in its favour. If a guilty verdict is returned then the defence will have the opportunity for mitigation before sentence is passed. The sentence is likely to be a slightly steeper fine that if the defendant had pleaded guilty from the outset. The defendant will also have to pay TV Licensing's costs, which will be more expensive having gone to trial.

If the defendant is found guilty at trial then they will almost certainly be ordered to pay a fine, TV Licensing's prosecution costs (which will be greater than if they'd pleaded guilty) and the Victim Surcharge.

If it all goes terribly wrong and the defendant is found guilty there is still the option of appealing the Magistrates' decision. The defendant needs to act quickly as there is only a short time to lodge an appeal.

To conclude, let us leave you with the heartening statistic that less than half of those people TV Licensing catch evading the licence-fee are actually convicted. With a little bit of research and preparation it really is possible to mount a very credible defence.

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Unknown said...

It should read As sure as X is X, and not 'eggs is eggs'. Sorry to sound like the BBC.

Admin said...

It's quite a common saying.

Anonymous said...

what an fantastic and yet again an refreshing article explaining in plain simple english,this should be an sticky on the tvl resistance forum

Martin S said...

Franco, "As sure as Eggs is Eggs" is a term that is well known in the British Isles.

Bureaucrat said...

An excellent summary of how to contest a TVL prosecution. I would be interested to know the percentage of acquittals where there is a contested trial.

Another thing that would come under part 2 (between first hearing and trial) is disclosure. TVL, as the prosecution, are obliged to disclose to the defence any material that may undermine their case or assist the defence case. This could be anything undermining the credibility of a goon's account for example. If there is no such material the prosecutor must sign a statement confirming that this is the case. If a prosecutor fails to discharge their disclosure obligations then the defence can ask the court to throw out the prosecution as an abuse of process. Given that TVL rely on most defendants pleading guilt or not attending court, this is another took that can be used to attack a prosecution brought on dubious evidence.

Maryon Jeane said...

Excellent - highly useful information, laid out in the best possible step-by-step way. I will certainly use this as a basis for my defence should TV Licensing be sufficiently misguided as to prosecute me.

The difficulty in mounting a case like this is that a defendant has effectively to prove a negative (that they were not receiving broadcasts, or watching catch-up TV, without a licence). English justice accepts that it is virtually impossible to prove and negative, so a defendant should point this out as many times as possible during the case.

Over the years I've spoken to several people who have pleaded guilty when in fact they were not guilty, in cases of this type. Don't do it!

When I was visited (on two occasions) by TV Licensing I was asked to sign an account of interview form each time. I did sign the form, but I amended and annotated it first. Both times the TV Licensing operative tried to stop me from changing anything on the form, warning me that this would make it illegal and suchlike nonsense. However in both cases the account of the interview was incorrect in places and in other places was deliberately expressed to skew what had actually happened - and it was this type of 'error' that I corrected before signing.

In one case j received a follow-up letter advising that I was going to be taken to court, to which I replied basically "Please go ahead"; they didn't. In the second case I heard nothing further.

Don't be intimidated (as the writer of this article has stressed) and keep control of the situation at every step of the way. TV Licensing only goes for the pushovers.

Admin said...

Thank you for taking the time to comment Maryon Jeane.
We do appreciate your continued support and readership.

Bureaucrat said...

I just wanted to point out that a defendant would not have to the prove a negative but would simply have to shed reasonable doubt on TVL's case to be acquitted. Showing a single inconsistency in the evidence of one of TVL's witnesses could be enough for this.

Also, while it's excellent that you prevented a malicious prosecution by checking and amending the goon's interview record (which is not illegal but an interviewee's right during an interview under caution where no audio record is made), I would advise not speaking to goons at all next time and never signing anything. That way you don't run the risk of a prosecution at all. If they visit, simply close the door as soon as it's clear who the caller is.

Arminius JP said...

You might wish to amend 4. The Trial, third paragraph thereunder where it says "If that TV Licensing's soul prosecution witness fails to attend....". Prosecuting souls should be left to our religious friends perhaps?

Admin said...

Well spotted and thanks for the heads up. Corrected.

Fred Bear said...

Given that Capita Court Presenters are not solicitors or barristers, it seems likely that they would drop all contested cases - they're really just trained at putting sheets of paper in front of a magistrate and trying not to look stupid.

Also, since a few months typically passes between the visit of a goon and prosecution it is unlikely that the Court Presenter would want to call a witness who is unlikely to remember anything of the "case".

Rob Warner said...

Private prosecutors intimidating defendants pre-trial in the manner you describe would be considered an improper approach and an attempt to interfere with the administration of justice. This would amount to a common law contempt of court. I should also imagine that comments made about a magistrate or district judge’s draconian attitude to defendants would be a further offence under section 12(1)(a)of the Contempt of Court Act 1981:

A magistrates’ court has jurisdiction under this section to deal with any person who wilfully insults the justice or justices, any witness before or officer of the court or any solicitor or counsel having business in the court, during his or their sitting or attendance in court or in going to or returning from the court.