TV Licence article Discussion

edited 14 June 2010 at 3:08PM in In My Home (includes DIY) MoneySaving
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  • edited 22 September 2021 at 7:55AM
    CornucopiaCornucopia Forumite
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    edited 22 September 2021 at 7:55AM
    pphillips said:

    The legal requirement for being Legally Licence Free can be interpreted in light of section 363 of the Communications Act 2003, which reads as follows...

    Actually, it's even more complicated (and also, curiously, simpler) than that.

    I'm surprised we haven't discussed this before, but "television receiver" is a defined term in the legislation - the definition is in the 2004 regulations, and it means a TV (or anything) that is installed or used for the purpose of receiving scheduled broadcasts or iPlayer.    By extension, a TV that is not installed/used for that purpose is not a "television receiver".

    So, in all of those offences there is already a pre-requisite that the usage involved is licenceable usage.    

    IANAL, but I think that effectively where that gets us from a legally Licence-free POV is that if your usage or intended usage is not licenceable, then none of the offences apply, not even as a passing consideration.  

    https://www.legislation.gov.uk/uksi/2004/692/regulation/9
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  • edited 22 September 2021 at 10:23AM
    pphillipspphillips Forumite
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    edited 22 September 2021 at 10:23AM
    pphillips said:

    The legal requirement for being Legally Licence Free can be interpreted in light of section 363 of the Communications Act 2003, which reads as follows...

    Actually, it's even more complicated (and also, curiously, simpler) than that.

    I'm surprised we haven't discussed this before, but "television receiver" is a defined term in the legislation - the definition is in the 2004 regulations, and it means a TV (or anything) that is installed or used for the purpose of receiving scheduled broadcasts or iPlayer.    By extension, a TV that is not installed/used for that purpose is not a "television receiver".

    So, in all of those offences there is already a pre-requisite that the usage involved is licenceable usage.    

    IANAL, but I think that effectively where that gets us from a legally Licence-free POV is that if your usage or intended usage is not licenceable, then none of the offences apply, not even as a passing consideration.  

    https://www.legislation.gov.uk/uksi/2004/692/regulation/9
    But the regulation you have referred to needs to be read in conjunction with section 363. There is a reason "intends to install or use" is listed as a separate offence, which is that subsection (3)(a) creates a type of criminal offence where a person is guilty because they intend to commit an crime - even if they don't succeed.
  • Section62Section62 Forumite
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    pphillips said:

    But the regulation you have referred to needs to be read in conjunction with section 363.

    And vice versa.
    pphillips said:


    There is a reason "intends to install or use" is listed as a separate offence, which is that subsection (3)(a) creates a type of criminal offence where a person is guilty because they intend to commit an crime - even if they don't succeed.
    The point is, the "apparatus" doesn't become a “television receiver” for the purposes of the Act until it is "...installed or used for the purpose of receiving..."

    Having the intent to make the "apparatus" into a "television receiver” doesn't make the "apparatus" a "television receiver” by itself - on the face of the regulation you have to go ahead with installing or using the "apparatus" before it becomes a "television receiver”.

    There does appear to be a significant loophole in the way S363(3) is drafted. (but INAL)

  • edited 22 September 2021 at 12:31PM
    pphillipspphillips Forumite
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    edited 22 September 2021 at 12:31PM
    Section62 said:
    pphillips said:

    But the regulation you have referred to needs to be read in conjunction with section 363.

    And vice versa.
    pphillips said:


    There is a reason "intends to install or use" is listed as a separate offence, which is that subsection (3)(a) creates a type of criminal offence where a person is guilty because they intend to commit an crime - even if they don't succeed.
    The point is, the "apparatus" doesn't become a “television receiver” for the purposes of the Act until it is "...installed or used for the purpose of receiving..."

    Having the intent to make the "apparatus" into a "television receiver” doesn't make the "apparatus" a "television receiver” by itself - on the face of the regulation you have to go ahead with installing or using the "apparatus" before it becomes a "television receiver”.

    There does appear to be a significant loophole in the way S363(3) is drafted. (but INAL)

    The regulations are made my government ministers and are intended to supplement Acts of Parliament, they cannot overrule them or otherewise make them inoperable. So, the regulations previously referred to exist to make it clear that a television set (or any other equipment) is not a television receiver unless it has been installed or used for that purpose (or as one of many other purposes). The offences then apply if a person has installed or used a television receiver, intends to do so on their equipment or knows or suspects that someone else intends to do so. Therefore, it is not the case that only the actual installation or use consitutes a criminal offence.
  • Section62Section62 Forumite
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    pphillips said:

    The regulations are made my government ministers and are intended to supplement Acts of Parliament, they cannot overrule them or otherewise make them inoperable.

    That is not correct.

    Acts of Parliament (Primary legislation) and Statutory Instruments (Secondary legislation) work in tandem.  SI's are typically used where detailed legislation may need periodic revision to reflect changing circumstances and Parliament has deemed it safe to delegate authority to make that legislation to the relevant minister (subject to parliamentary scrutiny)

    Section 368 of the 2003 Act contains the delegation of authority to the SoS to make regulations defining a “television receiver” and “use” for the purposes of this part of the Act.

    Regulations made as SI's can and do make sections of Primary legislation inoperable.

    At the most basic level, if the SoS declines to make regulations defining a “television receiver” then no offence can be committed under S363.

    In this case, the definition of “television receiver” in the current regulations would appear to have the effect of rendering S363(3) inoperable by the circularity of the definition and the potential offence.

    This deficiency could be overcome by inserting wording such as "or capable of" at an appropriate point in regulation 9 - but in doing so this would open a whole new can of worms, which I'd speculate the BBC wouldn't want to do.

    pphillips said:

    So, the regulations previously referred to exist to make it clear that a television set (or any other equipment) is not a television receiver unless it has been installed or used for that purpose (or as one of many other purposes).

    That, with several caveats and a deletion, is correct.

    pphillips said:

    The offences then apply if a person has installed or used a television receiver, intends to do so on their equipment or knows or suspects that someone else intends to do so.

    The "apparatus" does not become a "television receiver" until it is "installed or used for the purpose of receiving".  Prior to that the "apparatus" isn't a "television receiver". (see your preceding point)

    Logically the legislation has to work that way - otherwise it would be unlawful to use a 'TV' as a computer monitor or to watch videos or DVDs without having a licence. This isn't what Parliament intended.

    If the "apparatus" isn't (yet) a "television receiver" a person's intent to do anything with that "apparatus" is irrelevant (as well as being very difficult to prove in the absence of a full confession)

    pphillips said:

    Therefore, it is not the case that only the actual installation or use consitutes a criminal offence.
    I disagree. (but INAL)

    Other offences could exist, but I believe only if the legislation (primary or secondary) was altered from the current wording.

    Do you have any information about anyone ever being prosecuted for an offence under S363(3) so that we might further examine the arguments for and against?
  • edited 22 September 2021 at 6:12PM
    pphillipspphillips Forumite
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    edited 22 September 2021 at 6:12PM
    Section62 said:

    Do you have any information about anyone ever being prosecuted for an offence under S363(3) so that we might further examine the arguments for and against?
    That's besides the point, Parliament laid down the law under section 363(3) and no one other than Parliament can say it is no longer an offence (either expressly or implicitly). A Regulation or SI's can never be used to repeal an Act of Parliament (or any part of it), these are created to be supplementary or fill in the details.
  • edited 22 September 2021 at 6:36PM
    CornucopiaCornucopia Forumite
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    edited 22 September 2021 at 6:36PM
    AFAIK, TV Licence prosecutions are conducted under S.363 (1) only.

    A few years back, there was a flurry of publicity regarding potential liability for Landlords under S.363 (3)(b), but I don't think anything came of it.

    Other than that, I'm not aware of any prosecutions under S.363(3).   I daresay it might be possible to establish whether the official figures confirmed that (and that they are not a combined count of all S.363 offences).


    In terms of information published by the BBC/TV Licensing, the S.363(1) offence is what is being focused upon.   I wouldn't like to completely rule out something else being mentioned, but it is very well hidden, if it is.    


    There is a further issue that these are Summary Offences.  That means that there isn't an intent component to the offences.   I suppose that Parliament could legislate for a particular intent offence to be created, but it doesn't seem very likely, and their intention seems quite clear.

    In fact, the drafting seems quite neat to me - both enabling a distinct line to be drawn between lawful and illegal use of equipment, and also giving a degree of flexibility to address possible technological changes.

    In the various official reviews and reports, I've never seen reference to an intent offence, and the report from the Perry (QC) Review attached below is the same.   

    https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/445212/166926_Perry_Review_Text-L-PB.pdf
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  • Section62Section62 Forumite
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    pphillips said:
    Section62 said:

    Do you have any information about anyone ever being prosecuted for an offence under S363(3) so that we might further examine the arguments for and against?
    That's besides the point...

    If you'll forgive me, I think it is very much the point.

    Case law - if any exists - would help us understand whether or not the courts agree that it can be an offence for someone to commit a 'thought crime' by having an intent to do something with "apparatus" they can rightfully own and use in all but a very specific circumstance, if they haven't used the "apparatus" in the manner which would bring it within the definition of a "television receiver" used within the Act.

    My laptop could be a "television receiver". But it isn't because it has never been "installed" or "used" to watch television.  Are you suggesting that I've just committed an offence by thinking that one day in the future I might use it to watch live TV?

    The absurdity of that concept should be obvious (but for the fact this is a discussion about TV licensing).

    pphillips said:

    Parliament laid down the law under section 363(3) and no one other than Parliament can say it is no longer an offence (either expressly or implicitly).

    Again, forgive me, but your interpretation is incorrect.  Parliament delegated the definition of certain specifics relating to this section to the SoS.  The offence exists because [a] the relevant minister made a commencement order, and [b] the relevant minister made regulations defining the nature of the offence.  It is within the power of the relevant minister to amend or revoke those regulations, and therefore make this section inoperable.

    You'll note, for example, that the Act is silent on the matter of watching on-demand programme services provided by the BBC.

    Parliament has not legislated by an Act to make it an offence to watch such services without a licence - the scope of the existing offence has been widened through regulations made by the minister, and the minister may similarly make regulations that narrow the scope - including to the point where it is impracticable for any offence to be committed under this section (and without repeal by Parliament being necessary)

    pphillips said:

    A Regulation or SI's can never be used to repeal an Act of Parliament, these are created to be supplementary or fill in the details.

    I don't think the contrary has been stated here.

    The question is not of repeal, but of application and disapplication of the legislation.  Where regulations must be made to bring an offence into existence, further regulations may be made with the effect of altering or cancelling that offence.

  • edited 22 September 2021 at 8:52PM
    CornucopiaCornucopia Forumite
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    edited 22 September 2021 at 8:52PM
    And there is a further issue of scope and application, which is that the BBC and its agents are entirely responsible for prosecutions, including the practical interpretation of the legislation.    (Indeed, it's one of the fundamental flaws that there is simply too great a conflict of interest involved, whilst at the same time there being no realistic oversight to mitigate it).

    We also don't have to imagine the BBC taking a pragmatic view of the law, because we already have an example:   the law does not specify WHERE TV Licence offences take place, but TV Licensing focuses solely on residential and business premises.   They have actually confirmed that they have no intention of engaging in any form of enforcement in public places.

    edit:  In terms of what we are here for, though, I think we need to be careful in introducing novel interpretations that are not supported by the various official references, or indeed diligent consumer journalism because it can confuse people who are already faced with confusing, ambiguous information from TVL, and certain elements (of the system) that seem to be counter-intuitive to many people.
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  • edited 22 September 2021 at 9:48PM
    WatchkeeperWatchkeeper Forumite
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    edited 22 September 2021 at 9:48PM
    Section62 said:

    My laptop could be a "television receiver". But it isn't because it has never been "installed" or "used" to watch television.  Are you suggesting that I've just committed an offence by thinking that one day in the future I might use it to watch live TV?

    The absurdity of that concept should be obvious (but for the fact this is a discussion about TV licensing).

    The future is indeed accessible to the BBC. Can't remember the source of this (one of the BBC Charters), but look at the following:

    57.The meaning of “licence fee payer”

    In this Charter, a reference to a “licence fee payer” is not to be taken literally but includes, not only a person to whom a TV licence is issued under section 364 of the Communications Act 2003, but also (so far as is sensible in the context) any other person in the UK who watches, listens to or uses any BBC service, or may do so or wish to do so in the future.

    Emphasis mine. You have it as I have it.

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