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For most people, ownership of a television receiver or video recorder amounts to a licensable usage, and failure to have such a licence will be an offence. This applies even if the user objects to purchasing a licence on, say, political grounds. More interesting are the cases where people own equipment which is capable of receiving broadcast programmes, but in fact is never so used. Playing of video and DVD recordings is a case in point. So exactly what does require a licence?
The primary authority remains the WirelessTelegraphyAct1949, which states (s.1(1)) that it is an offence to
And in s.1(7):
The 1949 Act does not define a television receiver, but there is a working definition in s.3 of the Wireless Telegraphy (Television Licence Fees) Regulations (1997):
Finally, section 2(4) of the Broadcasting Act (1990) defines a ``television programme service'' quite widely, to include most terrestrial broadcast, cable and satellite TV service. It does not, however, include text-based broadcasts like teletext.
So, in summary, the statutory position appears to be that a licence is required if you install or use apparatus for the purpose of receiving television programme services.
Let's start by looking at the notion of `use'. Do you `use' a television receiver if a licensable way if you are unaware that you are doing so ? (e.g., you think you're watching a video recording, but actually it's a TV station). There is little case law on this specific point, but in R v Blake ([1997] 1 Cr App R 209) it was ruled that s.1 does create a StrictLiability offence, although this case concerned broadcasting rather than reception. If upheld, it would mean that it would be no defence to claim that one did not know that know that one was receiving a programme. In addition, there are numerous cases that support the notion that if one uses a television which belongs to one's spouse, then it is the user, not the owner, that is guilty of the offence.
Under UK law, the burden of proof is on the prosecution to prove all the elements of an offence, except for certain classes of fact. For example, in a drink-driving case the proseuction do not have to prove that alchohol causes drunkeness; this is well established. In television licencing, the prosecution would need to prove that the equipment was used. It may also need to prove that such use was `for the purpose of receiving television programmes' rather than, say, watching a video recording. In the majority of cases, a conviction is based on confession; when confronted with a licencing inspector the suspect generally admits to the defence. In the absence of such a confession, how could `use' be proved?
Clearly, if someone allows licensing inspectors into the house, and a television set is observed to be switched on and showing a picture, this is fairly conclusive first-hand evidence of use.
Another possibility is the use of covert surveillance devices as found, for example, in `detector vans'. Although it might be argued that evidence obtained this way was illegal, the Regulation of Investigatory Powers (British Broadcasting Corporation) Order 2001 disapplies some of the provisions of the InvestigatoryPowersAct2000, with the effect that it is easier to obtain authorization to detect the illegal use of television sets than it is for most offences. In effect, a defence to a charge under the 1949 Act is unlikely to succeed on the grounds that evidence was obtained using illegal covert surveillance.
In the absence of direct evidence of use, there are reports that inspectors have resorted to trickery to cause the TV owner to incriminate himself. In MitchellVMacKenzie1991 (a Scottish case) the inspecting officers requested that a television owner switch on the set for inspection, and then claimed this was a `use' under the terms of the 1949 Act. However, the High Court rejected this argument on appeal. This case is not necessarily representative of the approach that would be taken in England or Wales because, in Scotland, recovery of unpaid licence fees must first be undertaken as for recovery of any civil debt (e.g., that arises out of a breach of contract). In England and Wales, breaches of the licensing regulations are taken as a criminal matter in the first instance.
It remains unclear who has the burden of proof when a television is connected to a video recorder, and the owner claims that it has never been used for receiving broadcasts. Even if it were established that the owner had the burden of proof, UK convention has it that this prove need only be `on the balance of probabilities', and not `beyond reasonable doubt', as would apply to the prosecution.
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