I hope that this information will be of some help to others in avoiding the pitfalls of the Wireless Telegraphy Act and the little-known "Rudd Precedent", and to those who have fallen foul of our archaic and inequitable system of TV licences.
- N. Jewell, September 2002
Note that it is the premises that are licensed, not an individual or a particular TV set. It is normally the householder who is responsible for buying the licence, but anyone who has a TV in their possession or under their control could be liable under the Broadcasting Act, 1990.
TV dealers who trade directly with the public must keep records and notify the Secretary of State of transactions (i.e. report purchasers' names and addresses).
The licence allows the use at the premises occupied by the licence holder of any number of receivers by anyone living there, and by their visitors. Such people can also use receivers in touring caravans or boats, or in static caravans or boats provided a receiver is not used at the premises at the same time. They can also use receivers powered only by internal batteries anywhere and at any time, so long as they are not permanently installed. Lodgers, paying guests etc. will need their own licences to use receivers in parts of the premises occupied exclusively by them.
Special arrangements and rates apply to hotels, guest houses, care homes, student halls of residence, etc. TV Licensing will supply details.
A TV installed in a car needs a separate licence.
Specifically, you don't need a licence to replay video tapes whether commercial or home-recorded (although if these were not strictly recorded for time-shifting purposes there may be breach of copyright, but this is not the concern of TV Licensing), to replay DVDs, to use the TV as a monitor for computer games etc. or to receive broadcasts originating abroad (unless relayed via a UK broadcaster - check with TV Licensing if in doubt about the origins).
TV dealers do not need a licence for the purposes of demonstrating, testing or repairing sets.
There is another piece of legislation of which few outside the legal profession can be aware, which is not mentioned in TV Licensing's literature, licence form, advertising or anywhere else, but which they find very useful. This is the legal precedent "Rudd vs. the Secretary of State for Trade and Industry, 1987". (Full relevant text is in the Appendix.) It clarifies the meaning of the word "use" in the WT Act. It says that "use" does not include the meaning "have available for use", so in theory merely owning an unlicensed TV would not be an offence. However, it goes on to say that a court would not find it difficult to infer that a TV found in a sitting room was in fact being "used" for reception of broadcasts. In effect, the mere presence of the receiver implies "use". (This is why it is advisable to de-tune the receiver buttons if it is not being used for reception, as well as disconnecting the aerial. This apparently adds weight to your claim that you do not "use" it.)
However, it also makes the proviso that this inference could not be drawn if there was a credible explanation to the effect that the set was not being "used" (for receiving broadcasts), e.g. if it was connected to a video recorder or DVD player and not to an aerial, or if the owner was about to go away and did not intend to license the set until his return.
The surprising effect of all this is that TV Licensing do not have to prove "beyond all reasonable doubt" that you are committing an offence (the normal criterion in a criminal prosecution); it is for you to prove that you are not (and it is notoriously difficult to prove a negative!). This is the reverse of the "innocent until proved guilty" rule which is popularly thought to underlie British justice.
It has been said that in the realm of TV licensing, suspicion is proof.
If a succession of letters fails to make you buy a licence they will eventually send an enquiry officer to call on you. He may be dressed in an impressive police-style jacket, probably with a Kevlar vest underneath. You do not have to open the door to him. If you do, he must produce an identity card. You can take the card, shut the door and telephone TV Licensing to check his identity. He will ask to see your TV set. You do not have to show it to him, or let him into your house, or answer any questions.
If you decide not to let him in, he will ask, "Why not?" The answer is: "Because I say not!" He will have more patter ready (they are probably trained for this situation) but don't argue - just shut the door. He cannot use force to enter your home. If he tries, call the police at once - he may not be genuine.
If he suspects that you have unlicensed or improperly-licensed TV equipment, he will try to conduct a formal interview. He will read you the official police caution, as seen on TV, and then fill in a Record of Interview form, asking trick questions such as: "When did you first use the set without the appropriate licence?" (Note how this presumes your guilt!) You do not have to answer any questions, nor do you have to sign the Record of Interview form. You can tell him to leave at any time and he must then go.
In my experience, it is of no benefit to you to co-operate with the enquiry officer, even if you believe that you are not committing any offence; you will just be helping him to gather information to use against you in ways that may surprise you! (See "What are the relevant laws?", above.) Refusal to co-operate should not be held against you in court, since there is no statutory duty for you to do so, and without your co-operation or a confession the matter might not even come to court. (Of course, if absolutely no one co-operated in any way, TV Licensing's job would be all but impossible, perhaps hastening the demise of TV licences altogether ...)
A search warrant is valid for one month and only for one search. This is a court order, and you would be well advised to comply with it, as courts can apply very heavy sanctions.
The TV Licensing representative may or may not be accompanied by a police constable. However, they can only call at a reasonable time, you don't have to open your door to them, and they cannot use force to enter your home. If you are a woman on your own, you can insist that one of the search officers be female. You can get an independent witness before allowing them in to conduct a search, but must not delay the search unreasonably for this. You are entitled to see the warrant and be given a copy of it and a notice of your rights.
They can only look in places where a TV set etc. might reasonably be found in use, such as in living rooms (not in unconverted lofts, cupboards, drawers, under carpets, inside mattresses etc.), they must make good or pay compensation for any damage, and must not divulge any trade secrets etc. discovered in the course of the search. You must co-operate as far as is reasonable (remember, you are co-operating with the court, not with TV Licensing) and not refuse any reasonable request for assistance. They have the right to remove goods as evidence.
Most people represent themselves, the cost of a lawyer (upwards of £200) being insupportable for those who cannot afford a TV licence! Many firms of solicitors will give a free 20-minute interview, by appointment, in which you could get some useful advice, especially if you live in a large town and have plenty of such firms available. Look in Yellow Pages for their adverts. Most Citizen's Advice Bureaux have a solicitor on the premises who can give advice, but you will need to make an appointment and they may be very busy. Legal aid is available for those living on certain benefits. The CAB or any solicitor will tell you if you are eligible.
The trial will take place in a magistrates' court, which is not too intimidating. There are usually three magistrates, and no one wears wigs or special clothes. To make the best impression you should be smartly dressed, and appear as clean and conventional as possible when viewed from a distance of about twenty feet, which is as near as you will be allowed to get to the magistrates.
Note that the magistrates are generally lay JPs, trained but having no legal qualifications. Don't assume that they already know the relevant laws. If you can find out what the law says before the trial, be sure to "remind" them of it as you give your evidence. The Clerk of the Court is a barrister who advises them as necessary on points of law during the trial, and they make their decisions on the basis of this and their "common sense", which may account for the notoriously variable quality of their judgements. (40% of appeals against magistrates' decisions are successful.)
Make notes of the points you think will count in your defence, or any mitigating circumstances, beforehand. The procedure during the trial should be as follows:
When you are called you stand, the alleged offence is read to you and you plead guilty or not guilty. The prosecution lawyer outlines the facts and then examines his first witness on oath. This will be the enquiry officer, if you asked for him to be present when the trial was being arranged all those months ago. Otherwise the lawyer will simply read out the Record of the Interview if the enquiry officer wrote one and you signed it when he visited you. Keep your wits about you and make notes of anything you want to challenge. It may be helpful to have a friend with you for this purpose. You (or your lawyer) can then cross-examine the witness to establish the truth or otherwise of the evidence. Then the prosecutor can re-examine his witness to clear up any points you raised. This is repeated for any further prosecution witnesses.
You then have four choices:
a) submit that there is no case to answer
b) give evidence on oath (or affirm, if you are not religious) and be cross-examined by the prosecution lawyer and then re-examined by your own lawyer (or by yourself)
c) make a statement not under oath, but this will be less convincing, or
d) say nothing
The prosecution and defence make their final speeches summarising their positions, the magistrates may withdraw to deliberate, and then give their verdict.
If you are acquitted you can ask for your legal costs and personal expenses to be paid, although I am not sure how this works if you represent yourself. You probably get your personal expenses, but nothing for loss of earnings. If you are convicted you will probably have to pay the prosecution's costs, typically as little as £45 (these cases are heard in groups, so perhaps they get a discount for quantity!). A conviction does not result in your having a criminal record held by the Criminal Records Bureau.
The court will take into account the offender's finances, including income, capital and outgoings, before deciding the amount of the fine and the method of payment. You may be asked to fill in a form detailing your finances and bring it to the trial.
If you fail to pay a fine imposed by the court, then the court can take very firm steps: send in bailiffs to confiscate your property, take money direct from your earnings, even send you to prison! However, if you really cannot pay it is likely that attempts to recover a fine will simply be abandoned.Note that these penalties are a result of your defying the court, not of failing to buy a TV licence.
These measures seem very heavy-handed to many people, and a government 'think tank' has recently recommended that TV licence offences be de-criminalised, so that fines would be dealt with by the normal civil procedures of debt recovery.
The appeal is a re-hearing of the complete case before a judge and two magistrates in the Crown Court. Note that if you lose an appeal the penalty might be increased, and that you may have to pay all or part of the costs of both sides.
This legal precedent is important because TV Licensing rely on it to obtain convictions in apparent contradiction of the Wireless Telegraphy Act. The Act is widely mentioned in their literature, but this precedent is a well-kept secret!
The judgement hinges on the meaning of the word "use" as applied in the Act. Bear in mind that throughout we are talking about "use for receiving broadcasts", not use of the TV for any other purpose.
The Wireless Telegraphy Act states: "No person shall establish or use any station for wireless telegraphy or instal or use any apparatus for wireless telegraphy except under the authority of a licence in that behalf granted by the Secretary of State, and any person who establishes or uses any station for wireless telegraphy except under and in accordance with such a licence shall be guilty of an offence under this Act."
Mr Rudd was caught running a pirate radio station, and successfully argued that his tapes and records should not be confiscated since they were not being "used" at the time of the offence. The Secretary of State appealed against this decision, arguing that they were "available for use" and that this amounted to the same thing.
The Law Lords disagreed, stating: "There may well be circumstances in which, for example, a television set may be available for use in a person's house, and yet he may have no intention to use it and so may not license it. Thus he may be about to go away from home at the time when the licence expires, and not intend to renew the licence until he returns home. It is difficult to see why in such circumstances he should be convicted for an offence under section 11 on the ground only that the set was available for use and unlicensed. Furthermore there are other sections in the Act in which the word "use" appears, which indicate that the word is used in its ordinary sense when creating offences under the Act ... (There followed two examples of the usage of the word "use" in the Act.) ... In my opinion, both these provisions, having regard to their context, employ the word "uses" in its ordinary sense, and not in the sense of meaning "has available for use". I can see no reason for concluding that the word "use" as employed in relation to the offence created by section 1(1) of the Act should be understood in any different sense. Indeed, to construe the words "use" or "uses" in any of these sections as having the broad meaning "has available for use" would be in conflict with the principle that words in a statute creating a criminal offence should, if ambiguous, be given a narrow rather than a broad construction."
At this point you might think that under the Wireless Telegraphy Act this means that merely possessing an unlicensed TV (i.e. having it available for use) would not be an offence, and that TV Licensing would therefore have to catch an offender actually in the act of using it to receive a broadcast to bring a successful prosecution. But read on!
"I recognise that this conclusion may create problems for the enforcing authorities in so far as it means that they cannot simply rely upon the fact that the relevant apparatus was available for use. They will, I fear, have to go further and will if necessary have to persuade the court to draw the inference that the apparatus in question was used by the defendant during the relevant period. But I trust and believe that if, for example, a television set in working order is found in the sitting room of a house occupied by the defendant, it will not be difficult for a court to draw the necessary inference in the absence of some credible explanation by the defendant to the effect that it was not being used."
This last paragraph is just an example by the judge to illustrate his point, and is not as precisely phrased as the main judgement. However, TV Licensing may try to take it out of context and construe it as meaning that possessing any unlicensed TV is automatically an offence. If they try to prosecute on this basis, you should point out that they still have to persuade the court to draw the inference that it was being used to receive broadcasts. A TV set "in working order" here presumably means one which has been installed to receive broadcasts, i.e. connected to an aerial and tuned in to a local station. If the set were connected to a video recorder, for example, rather than an aerial, and especially if the tuner were also de-tuned, this would surely be a "credible explanation to the effect that it was not being used" (to receive broadcasts), and so would not constitute an offence.