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 11:23PM
    pphillipspphillips Forumite
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    edited 22 September 2021 at 11:23PM
    Section62 said:
    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.

    I am not aware of any prosecutions under section 363(3) or relevent case law, although it is still technically an offence. The laptop example you give would require the prosecution to prove beyond reasonable doubt that you intend to install or use a television receiver on your laptop without a TV licence. However, I am in no way saying that you are committing an offence merely by planning to use your laptop as a television receiver when you purchase a TV licence at some point in the future. It is the role of the courts to determine any case brought before it, including those that people may think of as "a thought crime" and not to express any agreement or disagreement on the matter.

    Parliament can and will choose to exercise its sovereignty by delegating certain functions and power to the relevant minister to make regulations. This may include a commencement order for the minister to choose the timing of when the Act of Parliament (or certain sections of it) will come into effect. However, I don't believe it's normal for Acts of Parliament to allow a minister to decomence all or part of it at some point in the future. If the minister declined to make regulations that provide technical details of when an offence is committed or revokes the regulations, that for example defines "television receiver" then the courts, when hearing cases brought before it, must interpret the Act to give effect to the intention of Parliament.

    As eluded to above, when a law is created by Parliament the relevant minister has no power except that which Parliament has chosen to give them in the Act itself. Giving the minister what can be referred to as "Henry VIII powers" (that might allow the minister to change the wording of the Act) is unusual and Parliament will generally restrict the scope of the minister's powers. If the minister exceeds the scope of their delegated powers, a court may strike down the offending regulations.
  • pphillipspphillips Forumite
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    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.
    Presumably, it would not be effective or a proportionate use of TV Licensing's resources to police public places.

    I don't wish to be counterproductive and put people off cancelling their TV licence but the fact of the matter is that it's in TV Licensing interest to create ambiguity because that's where they thrive. I've even heard of people near me either being prosecuted or told by TV Licensing that they have to buy a licence just because they own a television. TV Licensing are a law unto themselves and this may make it difficult even for diligent journalists to find and report the correct information. I therefore believe that the law as it is written should always be the starting point when giving advice to members of the public.
  • FreeBearFreeBear Forumite
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    pphillips said: Presumably, it would not be effective or a proportionate use of TV Licensing's resources to police public places.
    For starters, they have no power or authority to challenge anyone in a public space. No power to question, search, or detain a suspect... Heck, they can't even enter an individual's home without permission or a warrant.
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  • CornucopiaCornucopia Forumite
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    FreeBear said:
    pphillips said: Presumably, it would not be effective or a proportionate use of TV Licensing's resources to police public places.
    For starters, they have no power or authority to challenge anyone in a public space. No power to question, search, or detain a suspect... Heck, they can't even enter an individual's home without permission or a warrant.
    They have no power or authority to challenge anyone, anywhere... but it doesn't stop them.   It also doesn't stop them pretending, bluffing, blustering, coercing, etc. etc.

    I totally agree that it wouldn't be a sensible use of resources, and that it would also be a PR nightmare.   But that wasn't the point.  The issue is that the BBC have made a decision (presumably unilaterally) to modify the apparent intent of the legislation.  
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  • CornucopiaCornucopia Forumite
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    pphillips said:

    I don't wish to be counterproductive and put people off cancelling their TV licence but the fact of the matter is that it's in TV Licensing interest to create ambiguity because that's where they thrive. I've even heard of people near me either being prosecuted or told by TV Licensing that they have to buy a licence just because they own a television. TV Licensing are a law unto themselves and this may make it difficult even for diligent journalists to find and report the correct information. I therefore believe that the law as it is written should always be the starting point when giving advice to members of the public.
    Yes... but several posters, including me think that your interpretation is either incorrect or (at best) doesn't reflect BBC policy (within their apparent ability to interpret the intent of the legislation for the sake of pragmatism or otherwise).

    There is enough baggage around the TV Licence that I/others hold back from discussing because we don't want to appear to condone evasion, but I really do think we should be being clear about the core offence and its essential elements.

    Here's a Barrister's interpretation of the rules:-

    https://www.youtube.com/watch?v=bHwPvI2W-3Q
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  • _vexorg__vexorg_ Forumite
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    So, where does that leave the like of Virgin Tivo boxes or Sky boxes?
    They are used for youtube, all4, itv hub, etc, but their primary function is recieving TV programs.

    I assume a TV with an aeriel socket that's not connected is not an issue now.
  • CornucopiaCornucopia Forumite
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    _vexorg_ said:
    So, where does that leave the like of Virgin Tivo boxes or Sky boxes?
    They are used for youtube, all4, itv hub, etc, but their primary function is recieving TV programs.

    I assume a TV with an aeriel socket that's not connected is not an issue now.
    Personally, I would not recommend VM or Sky Satellite boxes as the basis of being legally Licence-free.   If you pay a subscription to keep them active, that would be bad.   If you allow them to receive content (or cannot prevent it), then that's bad.   If you cannot delete TV channels from them, then that's bad.   In the light of the discussion we've been having, then using a device that isn't clearly "not for the purpose" is bad.

    You may still just achieve legality by only ever viewing video-on-demand and old recordings on them, but I can't really see the point in it - especially because the subscriptions tend to be quite expensive compared to what you might get from standalone Broadband + Streaming.

    Some people still recommend detuning a TV and removing any aerial fly-leads (or bundling them away if they are not detachable from the wall).
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  • _vexorg__vexorg_ Forumite
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    Might have to re-assess the virgin packages. At the time of taking it out, the full package was much cheaper than just broadband. The telephone line options for broadband were poor by comparison to virgin cable.

    In fact I'm sure they didn't offer the high speed broadband on it's own at the time.It looks like that's changed now.
  • edited 23 September 2021 at 11:35AM
    pphillipspphillips Forumite
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    edited 23 September 2021 at 11:35AM
    pphillips said:

    I don't wish to be counterproductive and put people off cancelling their TV licence but the fact of the matter is that it's in TV Licensing interest to create ambiguity because that's where they thrive. I've even heard of people near me either being prosecuted or told by TV Licensing that they have to buy a licence just because they own a television. TV Licensing are a law unto themselves and this may make it difficult even for diligent journalists to find and report the correct information. I therefore believe that the law as it is written should always be the starting point when giving advice to members of the public.
    Yes... but several posters, including me think that your interpretation is either incorrect or (at best) doesn't reflect BBC policy (within their apparent ability to interpret the intent of the legislation for the sake of pragmatism or otherwise).

    There is enough baggage around the TV Licence that I/others hold back from discussing because we don't want to appear to condone evasion, but I really do think we should be being clear about the core offence and its essential elements.

    Here's a Barrister's interpretation of the rules:-

    https://www.youtube.com/watch?v=bHwPvI2W-3Q
    Apologies if I have not made myself clear but I completely agree with everything said in that video. I note that towards the end of the video he says that if you install a TV but not as a television receiver, ie you only intend to use it for catch up, DVD, video games etc, then you don't need a TV licence. I take your point that it isn't TV Licensing policy to prosecute for section 363(3) offences, presumably because they are harder to prove, but felt that it was worth discussing just in case.
  • Section62Section62 Forumite
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    pphillips said:
    I am not aware of any prosecutions under section 363(3) or relevent case law, although it is still technically an offence. The laptop example you give would require the prosecution to prove beyond reasonable doubt that you intend to install or use a television receiver on your laptop without a TV licence. However, I am in no way saying that you are committing an offence merely by planning to use your laptop as a television receiver when you purchase a TV licence at some point in the future.
    I think you've misunderstood the legislation. And that perhaps gets to the heart of why you've arrived at a different conclusion to Cornucopia and myself.

    Under the current regulation, the laptop is the "apparatus" which becomes a “television receiver” if it is installed or used in the prescribed manner.  That applies to any device, not just laptops.

    It is not necessary to "install or use a television receiver" (whatever that is) onto the laptop in order for that (or any device) to become a “television receiver” itself - it is the installation and/or use of the "apparatus" which matters.

    Therefore the laptop is not a “television receiver” if it isn't installed or used in that way.  Moreover, the offence under S363(3) cannot occur because at the point in time the alleged offence would have taken place the "apparatus" was not - as defined by the regulation - a “television receiver”.

    It is - as Cornucopia highlighted - a very simple point.

    This could explain why - although there is a technical offence - in practice it cannot happen (with the regulations currently applying) and therefore there is no case law for us to refer to. (but INAL)
    pphillips said:

    It is the role of the courts to determine any case brought before it, including those that people may think of as "a thought crime" and not to express any agreement or disagreement on the matter.
    I believe the vast majority of senior judges would disagree with you there.

    pphillips said:
    However, I don't believe it's normal for Acts of Parliament to allow a minister to decomence all or part of it at some point in the future.

    Not normal, no.  In the normal run of things primary legislation ceases to have effect because Parliament repeals it.  However, the act of revocation of a commencement order can have the effect - if circumstances allow - of disapplying the legislation. It happens, albeit infrequently.

    pphillips said:
    If the minister declined to make regulations that provide technical details of when an offence is committed or revokes the regulations, that for example defines "television receiver" then the courts, when hearing cases brought before it, must interpret the Act to give effect to the intention of Parliament.
    In this case the intention of Parliament is clear.

    "A “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." (S368)

    There is no scope for alternative definitions of “television receiver” to be substituted by Parliament, or the courts.  In circumstances where a court finds the definition in regulations made by the SoS to be unlawful the court cannot convict, or substitute the definition with another one.

    pphillips said:
    Giving the minister what can be referred to as "Henry VIII powers" (that might allow the minister to change the wording of the Act) is unusual and Parliament will generally restrict the scope of the minister's powers. If the minister exceeds the scope of their delegated powers, a court may strike down the offending regulations.
    This isn't about "Henry VIII powers". The wording of the Act doesn't get changed.

    It is about the application and disapplication of the legislation (via regulations made as a SI).

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