TV Licence Fee Enforcement Review

Presented to the Houses of Parliament pursuant to section 77 of the

Deregulation Act 2015

July 2015

We can also provide documents to meet the specific requirements for people with disabilities.

Please email en[email protected].gov.uk

Department for Culture, Media & Sport

Printed in the UK on recycled paper

You may re-use this information (excluding logos) free of charge in any

format or medium, under the terms of the Open Government Licence.

To view this licence, visit http://www.nationalarchives.gov.uk/doc/

open-government-licence/ or e-mail: psi@nationalarchives.gsi.gov.uk.

Where we have identified any third party copyright information you will

need to obtain permission from the copyright holders concerned.

Any enquiries regarding this document should be sent to us at

enquiries@culture.gsi.gov.uk

This document is also available from our website at www.gov.uk/dcms

Print ISBN 9781474122078

Web ISBN 9781474122085

ID 16061503 07/15

TV Licence Fee Enforcement Review

Contents

Foreword 3

Executive Summary 5

Chapter 1: Introduction and Background to the Review 9

Chapter 2: Current Law and Enforcement Regime 14

Chapter 3: Consultation Options 22

3a. Option 1 - Retain the Current Criminal Enforcement System 23

3b. Option 2 - Reform of current system 34

3c. Option 3 - Out-of-court settlement 48

3d. Option 4 - Fixed Monetary Penalty 56

3e. Option 5 - Civil Monetary Penalty 64

3f. Option 6 - Civil Debt 71

Chapter 4: Other options for change 76

Chapter 5: Conclusions and Next Steps 79

Annexes

A: Terms of Reference 81

B: Cost-Benefit Analysis 82

C: Jurisdictional Differences 101

D: Summary of Legal Framework 102

E: Analysis of Key Evidence 107

F: Summary of Consultation Process and Responses Received 112

TV Licence Fee Enforcement Review

Foreword

In October 2014, I was appointed by the Secretary of State to undertake an independent review of the

enforcement regime for television licence evasion. Under the law as it currently stands, the installation

or use of a television receiver without a licence is an offence under section 363 of the Communications

Act 2003. The offence is punishable by way of a fine up to a maximum of £1000. Concerns about the

operation of the criminal offence have been expressed in Parliament and elsewhere. The importance

attached to these concerns is evidenced by the enactment of section 77 of the Deregulation Act 2015,

which imposed a duty on the Secretary of State to review the criminal enforcement of licence fee

evasion and to consider proposals for reform, including possible decriminalisation.

This is not the first time that this complex issue has received detailed consideration. In his Review of

the Criminal Courts of England and Wales (2001), Sir Robin Auld recommended that the use of a

television without a licence should remain a criminal offence, but that it should be dealt with in the first

instance by a fixed penalty notice, discounted for prompt purchase of a licence and payment of penalty,

and subject to the defendant’s right to dispute guilt in court. This recommendation was considered by

the Home Office and a number of drawbacks to such a fixed penalty scheme were identified (chiefly

that it might lead to an increase in evasion and be costly to implement).

More recently, in February 2015, the House of Commons Select Committee Report ‘Future of the BBC’

criticised the criminal offence as anachronistic and out of proportion with responses to non-payment for

services such as gas, electricity and water, but concluded that decriminalisation was not feasible under

the current system of licence fee collection.

Following a lengthy process of review, during which I have been assisted by a wide range of individuals

and organisations, I have concluded that, in the overall public interest, the current system of criminal

enforcement should be maintained, at least while the method of licence fee collection remains in its

present form. Any significant change to the current system of enforcement, including a move towards

decriminalisation, carries the risk of an increase in evasion and would involve significant cost to the

taxpayer and those who pay the licence fee. While my principal conclusion is that the current system

of criminal deterrence and prosecution should be maintained, I have, where possible, made

suggestions for improvements to be made.

TV Licence Fee Enforcement Review

It is significant that this Review has taken place shortly in advance of an in-depth review of the BBC’s

Royal Charter. The Charter Review will look in detail at the BBC’s operations, as well as the mechanism

for collecting the licence fee. I recognise in this report that any change to the method of licence fee

collection is likely to have an impact on the viability of introducing a non-criminal scheme of

enforcement. It is to be hoped that the recommendations and observations made in this report will be

of assistance to those involved in the Charter Review.

During the course of the Review I received unfailingly courteous and encouraging support from officials

in the Department for Culture, Media and Sport. The Review Team comprised Sophie Marment,

Genevieve Mitchell, Dan Lihou, Tessa Gilder-Smith, Vivek Kumar and Lawrence Bird. To each of them

I owe an enormous debt of gratitude.

The views expressed in this Report are my own.

David Perry QC

TV Licence Fee Enforcement Review

Executive Summary

A television licence is required to watch live or nearly live broadcast television content on any electronic

device in the United Kingdom. Responsibility for collecting the licence fee lies with the BBC, which

operates under the trading name TV Licensing.

Section 363 of the Communications Act 2003 provides that a person who installs or uses a television

receiver without being authorised by a licence is guilty of an offence. The offence is punishable by way

of a fine up to a maximum of £1000.

This report considers whether the sanctions currently in place for TV licence evasion are appropriate

and fair, and whether the regime represents good value for licence fee payers and taxpayers.

The obligation to conduct a review of the sanctions regime is contained in section 77 of the Deregulation

Act 2015. Section 77 was enacted as a result of concerns expressed by Parliamentarians and others

that the criminal nature of the current regime represents a disproportionate response to the problem of

licence fee evasion. Section 77, among other things, requires this Review to “examine proposals for

decriminalisation of offences under section 363”.

The Review’s objectives were identified in the Terms of Reference:

● To examine whether the sanctions for contravening this offence are appropriate, fair,

and whether the regime represents value for money for licence fee payers and

taxpayers.

● To identify and assess options for amending the current enforcement regime, including

those for decriminalisation of TV licensing offences, and whether these options would

represent an improvement, based on a number of key considerations (set out below).

● To make recommendations to the Government by the end of June 2015.

The key considerations were identified as follows:

a. Value for money for licence fee payers and taxpayers in enforcement of the failure to

have a TV licence, including operational, revenue and investment costs of the

enforcement regime to the BBC and to the court system.

b. Fairness for all licence fee payers, and effectiveness in deterring evasion.

c. Proportionality and ease of enforcement.

TV Licensing has contracted most of its day-to-day activities to Capita Business Services Ltd (‘Capita’), which

carries out enquiries in relation to licence fee evasion. Collection of the licence fee, by the sale of licences,

takes place by way of over-the-counter services provided by PayPoint plc (‘PayPoint’) in the UK, and by the

Post Office in the Isle of Man and Channel Islands. Marketing and printing services are contracted to Proximity

London Ltd.

TV Licence Fee Enforcement Review

d. The degree to which the regime is easy to understand by all.

e. Where appropriate, practical considerations for effective transition from the current

regime to a different one.

The Review was announced on 9 September 2014 and the public consultation document was published

on 12 February 2015. The consultation period ran from 12 February to 1 May 2015. For the purposes

of the public consultation, the Review Team developed six policy options, which ranged from preserving

the current system, to outright decriminalisation with enforcement taking place through a civil (not

criminal) process. This broad range of options ensured that all possibilities for reform were the subject

of consideration during the course of the Review process.

In addition to the consultation process, the Review gathered evidence

through interviews with

representatives of the BBC, consumer groups, Government organisations, individuals involved in the

administration of criminal justice, representatives of the devolved nations and the Crown Dependencies

of Jersey, Guernsey and the Isle of Man, as well as other experts.

Following a detailed assessment of the various policy options, and having regard to the key

considerations set out in the Terms of Reference, the Review has concluded that there should be no

fundamental change in the sanctions regime as it applies to the current licence fee collection

system.

The current regime represents a broadly fair and proportionate response to the problem of licence fee

evasion and provides good value for money (both for licence fee payers and taxpayers). The principal

reason for reaching this conclusion is that within the constraints of the current licence fee collection

system, any change would risk undermining the deterrent effect provided by the criminal offences and

would almost certainly add complexity to the enforcement regime, with a corresponding increase in the

burden of cost.

The Culture, Media and Sport Select Committee has also recently concluded that decriminalisation of

licence fee evasion is not feasible, at least not under the present scheme of licence fee collection.

The

mechanism by which the licence fee is collected is a matter that will be the subject of further

consideration in the forthcoming review of the BBC’s Royal Charter.

On the basis of the evidence available to the Review, it is concluded that many of the concerns

expressed in relation to the criminal offence provide no compelling basis for change. In broad terms,

This Review uses the term ‘evidence’ to describe all the information submitted to the consultation and

gathered by the Review Team, rather than in any technical or forensic sense.

‘Future of the BBC’, Culture, Media and Sport Select Committee 2015:

http://www.publications.parliament.uk/pa/cm201415/cmselect/cmcumeds/315/315.pdf.

The BBC is governed by a Royal Charter, rather than an Act of Parliament, to underline the BBC's

independence. The Charter and accompanying Framework Agreement are drawn up by the Government and,

together, they set out how the corporation should be run, structured and funded and what its purpose should

be. The current Royal Charter came into full effect on 1 January 2007 and expires on 31 December 2016.

Charter Review is the process by which the Government considers all aspects of the operation of the BBC and

may renew the Charter should it choose to do. At the time of writing this report it is expected that the

Government will soon announce details of the Charter Review.

TV Licence Fee Enforcement Review

the current enforcement regime is operated fairly and efficiently by TV Licensing and the BBC and it

has proved to be successful in reducing levels of evasion.

That said, there is scope to improve the current system in advance of any changes that might follow

the Charter Review, particularly in relation to the transparency of the prosecution process and the tone

of TV Licensing’s written communications. The recommendations contained in the Review are

designed, among other things, to address some of the criticism levelled at the current system of

enforcement and to improve the fairness and effectiveness of the process of investigation and

prosecution.

It is also recommended that TV Licensing explore ways to target unlicensed household visits more

effectively.

One matter that emerged from the Review process is that in 2012, 70% of those prosecuted for TV

licence evasion were women.

On the evidence available it has not been possible to reach any

definitive conclusion to explain the reason for this gender imbalance. There is no evidence of any

discriminatory enforcement practices on the part of TV Licensing. It is recommended that the gender

disparity in TV licence prosecutions should be the subject of investigation and consideration in the

forthcoming Charter Review.

The Review also considers that the investigation and enforcement process would be more efficient if

cable and satellite companies were required to share their subscription information with TV Licensing

and a recommendation is made to this effect.

The Review also received a body of evidence to the effect that payment of the licence fee should be

made easier, in order to assist those on low incomes. This could be achieved by amending the

regulations

which govern the BBC’s ability to offer flexible payment plans. The Review agrees with

this view and has made a recommendation to this effect.

When, as part of Charter Review, consideration is given to the future method of licence fee collection,

it would be helpful to improve public understanding of the activities covered by the licence and how

the licence fee is spent. As a result of developments in technology, the expression “TV Licence” is a

misnomer. Steps should be taken to address the confusion that currently surrounds the licence fee,

both in terms of the activities it covers and the use to which it is put.

In addition, consideration should be given to the question of whether non-linear viewing (such as ‘on-

demand’ or ‘catch-up’ broadcasting services) should be included in the licence fee framework, which

it currently is not.

See recommendation 7.

See recommendation 2.

The proportion of fines imposed for failure to hold a TV licence in 2012 by gender was 32% male 68% female -

https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2014 (table B4a).

See recommendation 5.

Communication (Television Licensing) Regulations 2004.

See recommendation 4.

See recommendation 8.

See recommendation 9.

TV Licence Fee Enforcement Review

The forthcoming Charter Review is likely to look again at the mechanisms by which the licence fee is

collected. Should there be any change in the method of collection (for example, by way of a household

tax or broadcasting levy, as is the case in Germany), a move to another method of enforcement will

become more practicable and the question of decriminalisation will again fall for consideration.

SUMMARY OF RECOMMENDATIONS

While the current licence fee collection system is in operation, the current system of

criminal deterrence and prosecution should be maintained.

TV Licensing should explore ways to target unlicensed household visits more

effectively, to increase the likelihood of an enquiry officer making contact with

occupiers.

The BBC and the Department for Culture, Media and Sport should explore ways to

investigate and consider the gender disparity in TV licence prosecutions.

The Department for Culture, Media and Sport, in conjunction with the BBC, should

explore ways of amending the current regulations to allow simple and flexible payment

plans for those facing difficulty in paying the licence fee.

Consideration should be given to the introduction of a requirement for cable and

satellite TV companies to share their subscription information with TV Licensing in

order to improve the investigation and enforcement process.

TV Licensing should consider increasing the transparency of its prosecution and

enforcement policy, and provide clearer guidance to those at risk of prosecution. This

guidance could take the form of a code detailing the steps that will be taken before

prosecution, including the public interest considerations that will be applied when

deciding whether to prosecute. Any such code should be published and made

available to suspected evaders at the earliest possible opportunity in the enforcement

process.

TV Licensing should consider changing the tone and content of its written

communications with households so as to ensure that they are expressed in

reasonable terms and can be easily understood.

When considering the structure of licence fee collection as part of the forthcoming

Charter Review, a move towards a simpler system would assist in improving public

understanding of what the licence fee covers.

The Charter Review should look at non-linear viewing as a matter of urgency.

Consideration should be given to the inclusion of non-linear viewing within the licence

fee framework.

Next Steps

This report will be presented to Ministers of the Department for Culture, Media and Sport for their

consideration. The Secretary of State will lay the report before both Houses of Parliament and it will be

presented to the BBC Trust. In accordance with section 77 of the Deregulation Act 2015,

the Secretary

of State will set out the response and steps to be taken within three months of the Review being

completed.

Deregulation Act 2015.

TV Licence Fee Enforcement Review

Chapter 1: Introduction and background

to the Review

Introduction

1. This Review was established to consider whether the sanctions currently in place for failure to

hold a TV licence are appropriate and fair, and whether the regime represents good value for

licence fee payers

and taxpayers. Under the current law, by reason of section 363 of the

Communications Act 2003, TV licence fee evasion is a criminal offence triable summarily (in

the Magistrates’ Court) and punishable by a fine of up to £1,000.

Background

2. The television licence fee was introduced in June 1946 to cover the costs of operation of the

405-line (monochrome analogue television) service. Prior to this, the licence fee covered only

radio services. In 1968, following the introduction of colour transmissions, a colour television

supplement was added to the licence fee. The function of collecting and enforcing the television

licence fee was carried out by the Home Office until 1991, when these responsibilities were

assumed by the BBC. The investigation into and enforcement of the criminal offence is now

carried out by “TV Licensing”. “TV Licensing” is a trading name of the BBC, and includes some

companies contracted by the BBC to administer the collection of television licence fees and

enforcement of the television licensing system.

3. The current licence fee is £145.50, for colour, or £49.00 for black and white. Over 25 million

licences are issued each year,

generating revenue in 2013/14 of £3.7 billion.

4. A licence is required by anyone in the UK who installs or uses a TV receiver. In this context

“use” means viewing live (or nearly live

) television broadcasts on any device and derived from

any source, not solely programmes broadcast by the BBC. The licence fee is paid to the BBC

and the revenue derived from the sale of licences is used largely to fund the BBC’s television,

radio and online services, although it also provides funding for other services such as the Welsh

In this report, as in the BBC’s Royal 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.

Section 363 is set out in full at Annex D.

The BBC is a public authority in respect of its television licensing functions and retains overall responsibility

for these activities.

2013/14: 25,419,296 (http://www.tvlicensing.co.uk/about/foi-licences-facts-and-figures-AB18).

BBC Annual Report and Accounts 2013/14: http://www.bbc.co.uk/annualreport/2014/home.

This includes watching live TV broadcasts on a delay, but does not include ‘on demand’ services:

http://www.tvlicensing.co.uk/check-if-you-need-one/topics/technology--devices-and-online-top8.

TV Licence Fee Enforcement Review

broadcaster S4C, the nationwide digital switchover and infrastructure projects such as the

delivery of superfast broadband.

The TV licence fee can be paid by way of an annual one-off

payment or by quarterly, monthly, or weekly instalments, and there are various payment

methods available to customers.

TV Licensing takes active steps to contact unlicensed

households to ensure that individuals are aware of the obligation to hold a licence and also the

options available for payment.

5. In 2013, there were 178,332 prosecutions for failure to hold a TV licence.

This represented

approximately 11.5% of all defendants proceeded against before the Magistrates' Court.

While

this is a significant number, it appears that the cases account for only a minute fraction of court

time (0.3% on the figures available).

6. These cases resulted in 153,369 convictions, which equates to a conviction rate of 86%.

The

most common sentence for the offence is a fine, although some cases are dealt with by way of

a conditional or absolute discharge. Very few people actually appear at court as the vast majority

of defendants make a written plea of guilty, which is permitted by the Magistrates’ Court Act

1980.

In some instances cases are withdrawn if the evader purchases a licence.

Motivation for Review

7. A duty was placed on the Secretary of State for Culture, Media and Sport to carry out a review

of the sanctions appropriate for the contravention of section 363 of the Communications Act

2003, by section 77 of the Deregulation Act 2015. One of the issues raised during Parliamentary

debates on the Deregulation Bill was a concern that the criminal nature of the current regime is

not a proportionate response to the problem of licence fee evasion. In particular, it was

suggested that the availability of a criminal prosecution, with a financial penalty on conviction,

and the possibility of imprisonment in default of payment, was not comparable to the sanctions

for non-payment of utility service bills, such as water, gas and electricity.

Concerns were also

expressed regarding the fairness of the current enforcement regime as applied to some social

BBC Annual Report and Accounts 2013/14: http://www.bbc.co.uk/annualreport/2014/home.

Payment options include direct debit, credit and debit cards, cheques and postal orders, cash (via Paypoint)

and TV Licence payment cards. The payment options are prescribed in regulations (Communications

Regulations (TV Licensing) 2004).

https://www.gov.uk/government/statistics/criminal-justice-statistics-quarterly-december-2013 “Outcomes by

offence”.

https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2014 shows

1,546,140 Magistrates’ Court cases in 2013. 178,332 of 1,546,140 = 11.5%.

Figures provided to the BBC by the Department of Constitutional Affairs in 2005. No more recent figures are

available as this information is not gathered by the Ministry of Justice.

“Offences by outcome”, as above. 153,369 of 178,332 = 86%.

Magistrates’ Court Act 1980, Section 12(4).

However it is to be noted that, unlike these services, TV Licensing is not able to disconnect a non-payer’s

supply or monitor TV usage by way of a pre-payment meter, and so does not have the means with which to

encourage payment before resorting to the court process.

TV Licence Fee Enforcement Review

groups, in particular women (who form the majority of defendants in prosecutions for licence

evasion) and those on low incomes.

8. The Review’s Terms of Reference also required consideration to be given to the question of

whether improvements could be made to the efficiency of the current system of investigation

and prosecution. It has been suggested in some quarters that savings in time and money could

be achieved by effecting a less radical change than decriminalisation. For example, some have

advocated the adoption of a system similar to the one operated in Scotland, where a fiscal fines

system is operated by the Procurator Fiscal for a range of summary offences including cases

of TV licence evasion.

9. Set against these concerns, the BBC has argued that the current enforcement regime is

designed to provide, and does in fact provide, an effective deterrent to evasion and the

existence of the criminal offence has ensured a low rate of evasion at around 5% for the past

five years.

10. The Review has sought to analyse the merits of these competing arguments. This analysis has

been conducted on the basis of the evidence provided to the Review by a number of interest

groups and individuals and in accordance with the key considerations set out in the Review’s

Terms of Reference.

11. The House of Commons Culture, Media and Sport Committee has also recently published a

detailed report on the future of the BBC. The Committee’s report includes a valuable discussion

of the future of the licence fee and the issue of decriminalisation. The Committee accepted that

decriminalisation was not a feasible option under the current system of licence fee collection.

Certain observations made by the Committee, relevant to this Review, are addressed in Chapter

Charter Review

12. One highly influential factor behind this Review’s principal recommendation that the sanctions

regime should not be the subject of any significant change is the forthcoming review of the

BBC’s Royal Charter. The close proximity of the Charter Review has obvious implications for

the long-term viability of any changes to the sanctions regime: the Charter Review will involve

an in-depth exploration of the BBC’s operations, and this will involve a review of the BBC’s

funding, including both the mechanism for collecting the licence fee and the process of

enforcement. Any reform of the current regime (such as a move to decriminalisation) carries the

risk of becoming outdated as a result of further reform. If changes are to be made to the BBC’s

funding model, the scheme of enforcement will fall for reconsideration and the case for reform

may become stronger.

BBC evidence to the Review. In 2014, 70% of those prosecuted for TV licence fee evasion were women.

This fiscal fines system operates as an alternative to prosecution in the sense that, whilst the fiscal fines

system does not alter the criminal nature of the offence, it provides for an out-of-court disposal by way of

financial penalty; this reduces the number of cases coming before the criminal courts. However, the typical

settlement is £75, around half the cost of buying an annual licence. The viability of adopting this option, among

others, has been explored in the course of the Review.

The key considerations are set out above at page 4.

TV Licence Fee Enforcement Review

Review Methodology

13. The Review Team developed six policy options for the purposes of public consultation. These

options were intended to provide the widest possible scope for potential reform. They ranged

from retaining the criminal offence to outright decriminalisation with the civil courts as opposed

to the criminal courts being used to collect unpaid licence fees.

14. The consultation document was published on 12 February 2015, and by the end of the

consultation period, 1 May 2015, responses had been received from members of the public and

a number of organisations.

15. In addition to the consultation process, the Review held a number of meetings with the BBC,

consumer groups, Government organisations, individuals involved in the administration of

criminal justice, representatives from the devolved nations, the Crown Dependencies of Jersey,

Guernsey and the Isle of Man, as well as others including experts in the field of broadcasting.

16. The views expressed by those who participated in the Review represented a broad range of

opinion and the key points to emerge from the evidence are considered in the discussion of the

six options in Chapter 3.

17. It was envisaged at the time of consultation process that the Review would have the benefit of

a behavioural research paper, addressing the impact that decriminalisation would have on the

level of evasion. As things transpired, this proved to be impracticable and, in the absence of its

own behavioural research, a behavioural analysis survey conducted by Harris Interactive

(commissioned by the BBC) was provided to the Review Team. This survey found that the

existence of the criminal offence is in itself a strong factor in deterring evasion. It also found that

the criminal penalties, such as the risk of prosecution or imprisonment, provide the most

effective deterrent to evasion, after a large fine or monetary penalty (in the region of £1000;

significantly higher than the current average fines). The survey further predicted that evasion

rates would rise significantly under a civil model of enforcement. The Review Team conducted

a quality assurance review of the survey and concluded that it was reliable.

18. As this Review has been conducted by an independent reviewer, it was not necessary to carry

out an Impact Assessment in advance of the consultation. Notwithstanding the independent

nature of the Review, a limited assessment of the impact of the various options is set out at

Details can be found at Annex F.

It is important to note that this Review took place over the course of the 2015 general election. The roles of a

number of individuals involved in the Review have changed as a result of the election. Most pertinently John

Whittingdale MP was interviewed in his capacity as Chair of the House of Commons Culture, Media and Sport

Select Committee, but is now the Secretary of State for Culture, Media and Sport and will be receiving this

report. There have also been changes to the Ministerial teams of other Departments which provided evidence to

this Review, such as the Ministry of Justice.

This quality assurance review is set out in Annex E of this report together with a review of existing literature

on the behavioural impacts of changes in enforcement.

TV Licence Fee Enforcement Review

Annex B. It will be the responsibility of the Department for Culture, Media and Sport to consider

the impact of the recommendations contained in this Report, should the Secretary of State

choose to accept any or all of them.

TV Licence Fee Enforcement Review

Chapter 2: Current Law and

Enforcement Regime

www.tvlicensing.co.uk.

http://www.tvlicensing.co.uk/check-if-you-need-one/topics/technology--devices-and-online-top8.

Regulation 9(3) of the Communications (Television Licensing) Regulations 2004 provides that “receiving a

television programme service includes a reference to receiving by any means any programme included in that

service, where that programme is received at the same time (or virtually the same time) as it is received by

members of the public by virtue of its being broadcast or distributed as part of that service”.

Section 363 of the Communications Act 2003.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains a power to increase the

maximum fine level for offences in this band from £1000 to £4000. In the previous Parliament, the Coalition

Government (2010-2015) did not increase the fine level, but this could of course be a matter which a

Government may seek to change.

What is a TV Licence?

A TV licence is a legal permission to install or use television receiving equipment (such as

televisions, computers, laptops, tablets, mobile phones, games consoles, digital boxes and

DVD/VHS recorders) to watch or record television programmes as they are being broadcast. This

applies regardless of which television channels a person receives or how those channels are

received. The licence fee is not a payment for BBC services (or any other television service),

although licence fee revenue is used to fund the BBC along with other services, such as the

delivery of superfast broadband.

Who Needs a TV Licence?

Everyone in the UK who installs a television receiver or watches or records a TV programme as it

is broadcast needs to be covered by a TV licence, regardless of the device used to receive the

broadcast.

A single TV licence covers all devices used at a single site, whether home or business (and, for the

most part, portable devices used away from that site).

There are different rules for businesses

with multiple premises, or properties such as hotels.

The watching of non-linear broadcasting does not require a TV licence. Non-linear broadcasting is

television programming shown at a different time than when it is broadcast, and includes ‘on

demand’ programming, catch-up television, streaming or downloading programmes after they have

been broadcast on live television, and programmes available online before being broadcast on

television.

A person who installs or uses television-receiving equipment without a TV licence is guilty of a

criminal offence under the Communications Act 2003 and is liable to a level 3 fine

(currently a

maximum of £1000

TV Licence Fee Enforcement Review

Current Framework

19. The cost of a colour TV licence is £145.50 and the cost of a black and white licence is £49.00.

Concessions are available for blind people, those aged 75 and over, and those living in

qualifying residential care accommodation. The level of the television licence fee, the available

concessions and various payment methods are set out in regulations, principally the

Communication (Television Licensing) Regulations 2004 (as amended).

20. The process by which the Government sets the level of the licence fee is known as the licence

fee settlement. The Government consults the BBC over its costs and expenditure, and then

determines the licence amount. The last licence fee settlement was in 2010, at which time the

licence fee was frozen at its current level until 31 March 2017.

21. The licence fee is paid by an individual to TV Licensing, which transfers the sums received into

the Consolidated Fund.

The BBC receives its funding in the form of a grant from the

Department for Culture, Media and Sport in an amount equal to the revenue derived from the

TV licence fee, less any administrative costs.

22. The BBC uses its grant to fund nine television channels and 57 radio stations; it also provides

a number of other services such as BBC Online and iPlayer. Under the 2010 licence fee

settlement, the BBC assumed a number of additional responsibilities, including an obligation to

provide funding to the BBC World Service and the Welsh public service broadcaster S4C.

addition, the 2010 settlement provided for an annual payment from licence fee revenue

specifically for the development of superfast broadband. This annual payment of £150m is paid

to Broadband Delivery UK.

23. Licence fee collection is managed by the BBC Executive Board,

while responsibility for

overseeing the licence fee collection arrangements, and ensuring these are efficient,

appropriate and proportionate, is vested in the BBC Trust.

The Trust’s responsibility was first

A full list of the amending regulations can be found at Annex D.

Section 365 of the Communications Act 2003. The Consolidated Fund is a fund into which all public revenue

is paid and which provides the supply for all public services. The basis of the financial mechanism by which the

Consolidated Fund is operated is governed by the Exchequer and Audit Departments Act 1866 and it is

administered by the Treasury.

The BBC receives grant-in-aid from DCMS equal to the revenue from the TV licence fee (less the

Department’s expenses in administering the licensing system - see clause 75 of the BBC Framework

Agreement of 30 June 2006).

The detail of how the BBC must carry out these obligations is set out in the BBC Framework Agreement:

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/agreement_amend_sep11_sum.pdf.

Broadband roll-out and use agreement (16 July 2012) between BBC Trust and DCMS -

http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/our_work/local_television/broadband_agreement.pdf.

The ‘BBC Executive’ refers to the Executive Board of the BBC, made up of the organisation’s Directors and

responsible for the operational management of the BBC.

The ‘BBC Trust’ is the governing body of the BBC. It sets the strategic objectives for the BBC Executive and

monitors its performance.

TV Licence Fee Enforcement Review

set out in the 2006 Royal Charter and, under the terms of the Charter, the Trust is required to

ensure that the arrangements for the collection of the licence fee by the BBC Executive are

efficient, appropriate and proportionate.

In order to fulfil this function, the Trust committed to

regularly review the BBC Executive’s licence fee collection strategy, as part of the BBC’s annual

report and accounts.

What does the licence fee pay for?

BBC services:

57 radio stations

9 television channels

BBC Online, iPlayer & Red Button

BBC World Service

BBC Monitoring

Non-BBC services:

Funding for S4C

Funding for Broadband and local TV

The BBC Executive must maintain value for

money and secure the finances intended to fund

BBC services for the public at large. The BBC’s

collection strategy needs to be designed to

help people pay for their licence by ensuring

the system is as customer focused as possible.

At the same time it must ensure that it fulfils its

responsibility to the vast majority of

households who pay their licence fee, by

vigorously pursuing those that deliberately

evade payment.

- BBC Trust Review of TV Licence Fee Collection 2009

24. Until June 2013,

retailers who sold or rented television receiving devices or equipment were

required to record the name and address of the purchaser or hirer and pass on these details to

TV Licensing. A failure to comply with this requirement was a criminal offence.

This information

was used by TV Licensing to target potentially unlicensed usage and was sometimes used as

evidence in criminal prosecutions.

Current Enforcement Regime

Investigation

25. The investigation into and enforcement of the TV licence offence is carried out by TV Licensing,

which in turn has a contract with Capita Business Services Ltd (‘Capita’). Capita carries out the

day-to-day operational enforcement activities through its enquiry officers.

The BBC Trust has a specific duty under the BBC’s Royal Charter 2006 (Article 24(2)(m)) to ensure that the

arrangements for the collection of the licence fee by the BBC Executive are efficient, appropriate and

proportionate.

This requirement was removed by the Enterprise and Regulatory Reform Act 2013, as the Coalition

Government concluded that it “placed an undue administrative burden on retailers.”

Section 5 of the Wireless Telegraphy Act 1967 (now repealed).

BBC Trust Review of TV Licence Fee Collection 2009: Dealer notifications in 2007/08 resulted in 299,000

licences being sold and 61,000 change of address notifications.

TV Licence Fee Enforcement Review

26. Proof of the offence requires evidence that a person has contravened the prohibition in section

363 of the Communications Act 2003, and this is usually obtained during the course of an

investigation conducted by an enquiry officer: either by the officer witnessing the commission of

an offence or by way of an admission made to the officer by an individual.

27. In order to assist its investigations, TV Licensing has compiled a database of unlicensed

addresses. These addresses are the primary target of investigations. Where a TV licence is not

required at a particular address (because no individual within a household has installed or uses

a device to watch live television), the householder may inform TV Licensing of that fact by

submitting a ‘no licence needed’ declaration. This declaration will remove the household from

the list of addresses to be contacted for a period of two years.

28. The process of investigation usually involves a number of contacts with an unlicensed

household, initially by letter, followed by a telephone call or visit from an enquiry officer, to

confirm whether or not a licence is required at the particular premises.

29. The primary purpose of household visits is to ensure compliance with the law, and “enable TV

Licensing to remove premises which do not require a TV licence from their enquiries, thus

allowing resources to be concentrated on those [which do]”.

30. All household enquiries are undertaken in accordance with TV Licensing’s standards of conduct,

and (in England and Wales) having regard (where relevant) to the Police and Criminal Evidence

Act 1984 and its Codes of Practice.

The procedure to be followed by enquiry officers is set out

in Capita’s TV Licensing Visiting Procedures Manual.

31. The Visiting Procedures Manual sets out in some detail the procedures for household visits, the

appropriate means of gathering evidence and the appropriate means of communicating with

those in residence. During an enquiry visit, the officers must first establish whether or not they

are speaking to an appropriate person (an adult who normally resides at the address). Officers

are required to introduce themselves and explain the purpose of their visit using an established

identification and verification policy. The Visiting Procedures Manual prescribes a strict process

for the conduct of enquiries, including the information that must be given to or that may be

requested from the ‘customer’. There is also a clear requirement to “treat each visit confidentially

and to make the enquiry without causing offence.”

32. The enquiry officer can request permission to enter the premises in order to establish whether

TV receiving equipment is present or in use; they cannot enter unless permission is given and

must leave immediately if this permission is withdrawn.

The officer is provided with a standard

Although visits may be made to confirm the veracity of the declaration.

http://www.tvlicensing.co.uk/about/foi-administering-the-licence-fee-AB20.

In other jurisdictions, investigations are carried out in accordance with the requirements of local law.

Capita TV Licensing England & Wales Visiting Procedures, 2014.

TV Licence Fee Enforcement Review

form which is used to record the details of the visit. This form is retained by the officer (and a

copy provided to the customer) for subsequent enforcement purposes and for possible later use

in court, should it become necessary. At the conclusion of the visit the appropriate person is

invited to sign the form to indicate agreement with any recorded statement of facts. As soon as

there are reasonable grounds for suspecting that the person in question has committed an

offence the officer must administer a caution.

33. In certain limited circumstances, a search warrant may be issued by a Magistrates’ Court to

authorise access to a property.

Such a warrant is only available where there are reasonable

grounds for believing that an offence has been committed and where TV Licensing is able to

satisfy the court that it has no alternative means to obtain relevant evidence. TV Licensing must

also demonstrate that it has exhausted all reasonable means to gain the cooperation of the

occupant and that access will not otherwise be granted to the relevant premises.

A search

warrant authorises a single entry and search of the premises within one month of the warrant

being issued.

34. The search will usually be carried out by two enquiry officers, supported by a police officer.

The officers are empowered to examine electronic devices to establish whether or not they are

capable of receiving television broadcasts. Capita’s policy is that a search must cease once

sufficient evidence has been gathered.

Prosecution

35. Where evidence is obtained of the commission of an offence, TV Licensing will usually

encourage compliance with the law before embarking on a prosecution. According to the BBC,

its primary concern, at least in the case of first-time offenders, is to ensure compliance with the

obligation to obtain a licence, and prosecution is a matter of last resort. Thus, subject to any

other relevant considerations, where a householder agrees to purchase a licence, it is likely that

no further enforcement action will be undertaken.

36. Criminal prosecutions are brought only if the evidence is of sufficient quality to meet the

evidential test set out in the Code for Crown Prosecutors (that is, where the evidence is sufficient

to provide a realistic prospect of conviction). Once the evidential test is satisfied, TV Licensing

applies the public interest test, namely whether it is in the public interest to prosecute. The public

interest test involves weighing factors both for and against prosecution, and taking into account

all relevant circumstances.

The caution refers to the officer informing the individual that they do not have to say anything, but it may harm

their defence if they do not mention when questioned something which they later rely on in court and that

anything they do say may be given in evidence.

Section 366 of the Communications Act 2003.

The BBC advises that this is not a statutory requirement but is TV Licensing’s preferred policy. On very rare

occasions a search may go ahead without a police officer, if none is available.

Capita TV Licensing England & Wales Visiting Procedures, 2014.

BBC consultation response.

TV Licence Fee Enforcement Review

37. As a ‘summary only’ offence, prosecutions for TV licence payment evasion are brought in the

Magistrates’ Court. TV Licensing acts as the prosecuting authority and is responsible for

presenting the case in court.

38. In 2013, in England and Wales there were 178,322 prosecutions for the evasion offence and

153,369 people were convicted.

Of these, 152,664 were fined.

It is important to note that the

offence is not punishable by way of imprisonment: the maximum penalty is currently a fine

not exceeding £1,000.

Despite the large number of cases, prosecutions take up only 0.3% of

court time. Many defendants plead guilty by post and prosecutions are usually listed at a single

sitting devoted exclusively to hearing such cases. The Magistrates’ Court Sentencing

Guidelines

set out common aggravating and mitigating factors and a basis for assessing the

level of any fine. The average level of the fine imposed for licence evasion in England and Wales

is £170.

According to figures provided by the Ministry of Justice, 70% of those prosecuted are

female.

39. The TV licence offence is not a “recordable offence” so those found guilty do not receive a

centrally-recorded criminal record.

40. Non-payment of a fine may ultimately result in the court ordering a period of imprisonment in

default of payment, however a period of imprisonment may only be imposed as a measure

of last resort, where there is a wilful refusal or culpable neglect on the part of the

offender

, and where all other enforcement methods have been tried or at least

considered.

The use of imprisonment in the case of unpaid fines is designed to enforce the

Magistrates’ Courts’ order and is not a punitive measure imposed in respect of the evasion

offence.

41. In 2013, 32 people were imprisoned for non-payment of a fine imposed following conviction for

TV licence evasion.

https://www.gov.uk/government/statistics/criminal-justice-statistics-quarterly-december-2013 “Outcomes by

offence”.

“Outcomes by offence”, as above. 86% of the cases brought to court result in a conviction. 99.5% of those

convicted are fined and the vast majority of the remainder are dealt with by way of a conditional or absolute

discharge.

Section 363 of the Communications Act 2003.

When sentencing offences committed after 6 April 2010, every court is under a statutory obligation to follow

any relevant Sentencing Council guidelines unless it would be contrary to the interests of justice to do so. In this

case, the Sentencing Guidelines Council’s ‘Magistrates' Court Sentencing Guidelines’ (updated October 2014).

Ministry of Justice consultation response (2013 figures).

Magistrates' Court Act 1980 sections 75 to 91.

This is explained in more detail in Annex D.

The statistics in relation to those imprisoned for wilful refusal or culpable neglect to pay the fine do not give

any indication whether the defendants in the cases in which imprisonment was ordered were also imprisoned

for other matters or had other outstanding fines. This is addressed in our consideration of Option 1.

TV Licence Fee Enforcement Review

Recent Procedural Reforms

42. The Criminal Justice and Courts Act 2015 provides a new single justice procedure

which aims

to ensure that the Magistrates’ Court is able to deal more effectively with straightforward,

uncontested cases. This procedure offers an alternative form of proceedings by which cases

will be brought before the court at the earliest opportunity and dealt with on the papers by a

single justice.

In other words, the cases are not heard in open court with the result that court

time is saved.

43. The same legislation also introduced a ‘criminal courts charge’, that is a charge levied against

all adult offenders convicted of a criminal offence.

The charge levied against persons

convicted of the TV licence fee evasion offence following a plea of guilty is £150.

The revenue

is retained by the Ministry of Justice. Those convicted following a trial will be required to pay

£520.

The rationale behind the criminal courts charge is that adult offenders should pay

towards the cost of running the criminal justice system. This cost, unlike the fine element of the

penalty, is not subject to means-testing.

The criminal courts charge has been included in our

Cost-Benefit Analysis (Annex B), but its potential impact on TV licence fee evasion cases is not

yet clear. It is inevitably the case that the charge will add to the financial burden imposed on

defendants and this is a matter of concern, at least in the case of those on low incomes.

Devolved Administrations and Crown Dependencies

44. There are several differences in the enforcement procedures as they apply across the various

part of the UK and the Crown Dependencies of Jersey, Guernsey and the Isle of Man.

45. In Scotland, evasion cases are investigated by TV Licensing, but prosecutions are brought by

the Procurator Fiscal. Under powers provided by statute,

the Procurator Fiscal may decide to

use an out-of-court disposal option which means that a defendant may avoid prosecution by

agreeing to pay a fixed sum of money. In Scotland significantly fewer cases are dealt with by

the courts as a majority of defendants utilise this out-of-court disposal option. The advantages

and disadvantages of adopting this approach in England, Wales, Northern Ireland and the

Crown Dependencies (Jersey, Guernsey and the Isle of Man) are discussed further in Chapter

Criminal Justice and Courts Act 2015, section 48 (inserting section 16A into the Magistrates’ Court Act 1980)

in force April 2015 http://www.legislation.gov.uk/ukpga/2015/2/contents/enacted.

Ministry of Justice consultation response.

Criminal Courts and Justice Act 2015, section 54 (inserting sections 21A to 21F into the Prosecution of

Offences Act 1985).

The Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015.

The legislation (CJC Act 2015) requires the courts not to take the charge into account when determining other

financial imposition amounts.

Section 363 of the Communications Act 2003 applies throughout the United Kingdom and has been extended

to Jersey, Guernsey and the Isle of Man by Orders of Council.

Section 302 of the Criminal Procedure (Scotland) Act 1995.

TV Licence Fee Enforcement Review

46. In Northern Ireland and the Crown Dependencies there are some slight variations in the

enforcement regime. In Jersey, for example, TV Licensing provides information obtained from

its investigations to the local police authority which then conducts its own investigation; any

prosecutions are taken forward by the Centenier.

47. The level of fines imposed in these jurisdictions is broadly comparable to the level in England

and Wales, although the out-of-court disposal in Scotland involves a typical payment of £75.

The differences in enforcement across the relevant jurisdictions can be found at Annex C.

Evidence provided by the Crown Office and Procurator Fiscal Service (COPFS): in 2013/14, 94% of cases of

TV licence fee evasion in Scotland resulted in a payment of £75 (12603 of the 13431).

TV Licence Fee Enforcement Review

Chapter 3: Consultation Options

48. Part of the Review process involved identifying and assessing possible options for amending

the current regime of criminal enforcement, including decriminalisation of the TV licence evasion

offence. Six possible options were identified. The assessment process involved considering

whether the adoption of any of the options would represent an improvement on the current

regime.

49. The assessment was carried out by reference to the key considerations as set out in the Terms

of Reference:

a. value for money for licence fee payers and taxpayers in enforcement of the failure to have

a TV licence, including operational, revenue and investment costs of the enforcement

regime to the BBC and to the court system;

b. fairness to all licence fee payers, and effectiveness in deterring evasion;

c. proportionality and ease of enforcement;

d. the degree to which the regime is easy to understand by all; and

e. where appropriate, practical considerations for effective transition from the current regime

to a different one.

50. The Review Team intentionally developed a broad range of policy options to ensure that the

possibility of reform was fully and properly explored in the course of the Review. The six options

are set out below in summary form:

Retain the current criminal enforcement system

Reform of current system: leave the current offence as it stands, but reform the current

criminal enforcement system.

Out-of-court settlement: retain the criminal offence, with an option for disposal by way

of an out-of-court settlement.

Fixed monetary penalty: retain the criminal offence, with an option for disposal by way

of a fixed monetary penalty.

Civil monetary penalty: decriminalise and enforce via a civil infraction.

Civil debt: decriminalise and enforce as a civil debt.

51. Each of these options is analysed in more detail in the sections which follow.

TV Licence Fee Enforcement Review

3a. OPTION 1

Retain the current criminal enforcement system

52. Under Option 1 the current criminal offence and existing sentencing powers would be retained

as they are at present. The operation of the current system of criminal enforcement is explained

in Chapter 2 above. In summary, the current system of dealing with TV licence evasion is based

on the existence of a criminal offence, punishable by way of a fine. This is intended to serve the

public interest by providing a powerful deterrent to evasion. The offence is triable only in the

Magistrates’ Court. The conviction rate is 86%. In the vast majority of cases offenders are fined

and the average fine is £170.

Overview

53. Taking into account all the evidence available to the Review, and having regard to the key

considerations set out in the Terms of Reference, we have concluded that the current sanctions

regime provides a broadly fair and proportionate response to the problem of licence fee evasion.

The factors that have been most influential in reaching this conclusion are as follows:

i) The need for an effective deterrent in the interest of licence fee payers in particular and

taxpayers in general.

ii) The current high level of compliance with the legal obligation to hold a TV licence.

iii) The relatively low cost of enforcement and prosecution.

iv) The difficulties associated with identifying evasion, and the efficiencies of using the

Magistrates’ Court for the purposes of prosecution and enforcement of the financial penalty.

v) The difficulties that would arise if any of the other options were otherwise to be adopted.

54. We should make clear that this conclusion is based on problems associated with providing an

effective deterrent and efficient system of enforcement under the existing model of licence fee

collection. The case for reform, including possible decriminalisation, will become more powerful

if changes are made to the mechanism by which the licence fee is collected. This will be one of

the matters considered in the forthcoming Charter Review.

55. While we have concluded that the current system of enforcement should be maintained, the

case has been made for improvements in certain aspects of the current enforcement process

and these improvements are addressed in our discussion of Option 2 below.

56. We discuss the factors that have informed our conclusion in relation to Option 1 in the following

paragraphs.

Ministry of Justice consultation response (2013 figures).

TV Licence Fee Enforcement Review

Deterrence

57. Since 1991 the BBC has had significant success in reducing the evasion rate.

In England and

Wales it has been maintained at around 5% since 2005 (levels of evasion are higher in Scotland

and Northern Ireland).

The BBC maintains that this is one of the lowest evasion rates in

Europe, and lower than a range of countries comparable to the UK in terms of their public

service broadcasting infrastructure and legal systems. It is certainly lower than Italy (26%),

Ireland (12%) and Poland (65%).

58. The existence of the criminal offence is intended to provide a strong deterrent to evasion. The

BBC has argued that a strong deterrent is necessary because it is easy to commit the evasion

offence and investigation can be difficult. In support of its argument, the BBC emphasised that

unlike providers of utility services, such as water, gas and electricity, it cannot meter its supply

of broadcast, switch off its services or control access to its programmes.

59. The arguments advanced by the BBC are supported by a research study undertaken by Harris

Interactive.

This research study suggests that the public identifies a large fine (around £1,000),

together with other factors (including the risk of prosecution), as the most effective deterrent

against evasion.

The study suggests that evasion rates would increase if the current model is

replaced by either a purely civil or hybrid model (such as out-of-court settlements) involving a

fine or payment of, say, £150. Increases in evasion rates are predicted even if the current model

is replaced with either a purely civil or hybrid model involving larger fines or payments of over

£300.

60. The same study suggests that the existence of a criminal offence is in itself a strong factor in

deterring evasion (with 54% purchasing a licence ‘because it’s the law’ or ‘it’s illegal not to’)

and evasion rates would increase significantly under a civil model as they are less effective at

making people pay.

61. There is no doubt that the mere existence of the criminal offence plays a significant part in

deterring licence fee evasion, and a move from the current system of criminal enforcement

carries the risk of an increase in the scale of evasion, with a corresponding loss of revenue to

the BBC.

BBC Trust Review of Licence Fee Enforcement, 2009.

http://www.tvlicensing.co.uk/cs/media-centre/news/view.app?id=1362435051910.

It is to be borne in mind that the research study was commissioned by the BBC, but was quality assured by

analysts from the Department for Culture, Media and Sport, who agreed that it is a robust study.

The study is analysed in more detail at Annex E.

Harris Interactive Behavioural Research, BBC consultation response.

Harris Interactive Behavioural Research.

TV Licence Fee Enforcement Review

Compliance with the legal obligation

62. Since the BBC assumed responsibility for licence fee collection from the Home Office, the

evasion rate has reduced from 12.7% (in 1991) to around 5%

(in England and Wales). This is

a notable reduction as even a small increase in evasion has significant cost implications: the

current 5% evasion rate equates to approximately £200m of lost income for the BBC.

63. TV Licensing and Capita argue that without the deterrent effect of the criminal sanction and the

powers currently available to investigators, the process of enforcement would become even

more difficult and expensive for licence fee payers.

Cost

64. Under the current system the principal cost to the taxpayer is the cost of court time. The total

number of TV licence evasion prosecutions brought to court in 2013 was 178,332, which

represented 11.5% of all Magistrates’ Court cases in that year.

Despite the large number of

cases, they appear to be dealt with efficiently, and take up only 0.3% of court time;

with many

defendants pleading guilty by post. TV licence evasion prosecutions are usually listed to be

heard at a single sitting devoted exclusively to hearing such cases.

The courts have similar

procedures for hearing traffic offences which are considered to deliver fair and efficient

outcomes.

65. The Ministry of Justice has expressed the view that the proportion of Magistrates’ workload

taken up with TV licence prosecutions is “relatively minor” and the extent to which judicial and

administrative resources could be reduced is “limited with minimal scope for cash savings.”

estimates that the annual cost to the taxpayer of TV Licensing prosecutions is no greater than

£5m a year and, further to this, the government and courts receive the revenue of the fines

(where recovered), which reduces the cost to the taxpayer even further.

66. An estimated £26m of TV Licensing evasion fines are imposed each year,

and although the

actual figure collected is lower,

court time and enforcement costs are largely met by the

amounts recovered. The Ministry of Justice expects that there will be further savings in court

time as a result of amendments to the system of summary justice effected by the Criminal

BBC Trust Review of Licence Fee Enforcement, 2009 (the figure has remained at around 5% since 2009).

Cost-Benefit Analysis (Annex B).

https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2014.

Figures provided to the BBC by the Department of Constitutional Affairs in 2005.

The Review visited a Magistrates’ Court on two occasions and observed a number of TV licence fee evasion

cases.

Ministry of Justice consultation response.

The Ministry of Justice advises that fines are sometimes revised once means to pay information is provided

and, for a variety of reasons, a number may cancelled or administratively written off for a variety of reasons. In

2012 around a third of fines imposed for TV Licence Fee evasion were collected within 12 months.

TV Licence Fee Enforcement Review

Justice and Courts Act 2015, and the introduction of the criminal courts charge is likely to reduce

the burden on the taxpayer even further.

67. So far as costs to the licence fee payer are concerned, the BBC spends around 2.7% of TV

licence fee revenues on investigating and prosecuting licence fee evasion.

This figure, which

amounts to £102m,

is a significant fall from the 6% spent when the scheme of prosecution

and enforcement was administered by the Home Office.

100

68. During interviews, BBC representatives told us they consider the current system to be both

efficient and fair. We were informed that collection costs were reduced by £9m between 2013

and 2014 and that the contract with Capita is designed to deliver £220m of savings between

2012 and 2020.

101

The Ministry of Justice also expressed the view that the current scheme is

fair and provides good value for money.

Difficulties in investigation

69. The investigation process is undertaken by TV Licensing and Capita on behalf of the BBC. TV

Licensing and Capita informed us that the offence can be difficult to detect and enquiry officers,

with only limited powers of investigation, have to rely to a very great extent on evidence obtained

as a result of their household visits. These visits can sometimes be difficult and are often

contentious. The BBC drew our attention to the fact that proving the offence had become even

more difficult in recent years, because of the expanding range of devices that are capable of

being used as television receivers.

102

Efficiencies arising from the use of the criminal courts

70. Although investigations into evasion can be difficult, the court process is relatively

straightforward and the financial penalties are relatively easy to enforce. As noted, despite the

number of cases, the process of hearing licence fee evasion takes up very little in terms of court

time.

103

In order to facilitate enforcement of the financial penalty, the Magistrates’ Court will

frequently be provided with information by the defendant which enables it to determine whether

an attachment of earnings or benefits order would be an effective method of recovering any

fine.

BBC Annual Report and Accounts 2013/14.

http://www.bbc.co.uk/annualreport/2014/executive/finances/licence_fee.html.

BBC Annual Report and Accounts 2013/14.

http://www.bbc.co.uk/annualreport/2014/executive/finances/licence_fee.html.

100

House of Commons Culture, Media and Sport Committee, ‘Future of the BBC’, Fourth Report of Session

2014/15, p82.

101

BBC Annual Report and Accounts 2013/14 -

http://www.bbc.co.uk/annualreport/2014/executive/finances/licence_fee.html.

102

BBC consultation response.

103

BBC consultation response.

TV Licence Fee Enforcement Review

71. Under the current system the BBC has no responsibility for the enforcement of fines, with the

result that the enforcement cost is not passed on to the licence fee payer. The BBC will

frequently recover some of its investigation and prosecution costs by way of an order for costs

against the convicted defendant. In 2012/13 the BBC was awarded £13.1m in costs and

recovered £9.5m, a recovery rate of 73%.

104

Difficulties of reform

72. The two most significant difficulties that pose an obstacle to reform are the increased risk of

evasion and the costs (investment and operational) involved in implementing an alternative

scheme of enforcement. These issues are addressed under Options 3 to 6 below.

Arguments Against Criminal Enforcement

73. Having set out the principal reasons for recommending the continuation of the current sanctions

regime, in this section we consider the arguments advanced against criminal enforcement.

74. The principal argument advanced against the continuing existence of a criminal offence is that

the criminal law is an inappropriate mechanism through which to address the problem of TV

licence evasion. This argument has three principal strands. First, the use of the criminal law is

in itself disproportionate and unfairly stigmatises those who cannot pay the licence fee. Second,

TV licence fee evaders are sent to prison and this is a disproportionate response to the problem

posed by evasion. Third, a disproportionate number of prosecutions are brought against women

and those on low incomes.

The use of the criminal law

75. The argument against the use of the criminal law deserves careful consideration. The criminal

law involves the use by the state of coercive powers and penalties. The mere existence of a

criminal offence requires strong justification, either in terms of the harmful nature of the

prohibited conduct, or in terms of deterring conduct in which the public as a whole has an

interest. Increasingly, at least in England and Wales, the criminal law has been used in the

public interest as a regulatory device, extending to conduct lacking any form of moral turpitude.

76. The TV licence evasion offence is a form of regulatory crime and its existence may be justified

on two broad bases. First, evasion imposes an additional financial burden on the licence fee

payer. For this reason alone it is necessary to mark the importance of compliance with the legal

obligation and deter evasion. Second, the general public has an interest in maintaining the

quality of programmes and other broadcasting services, and the existence of the criminal

offence reflects the significance attached to this important public interest.

104

BBC consultation response.

TV Licence Fee Enforcement Review

The operation of the offence

77. In its support for the existing sanctions regime, the BBC emphasised that the current

enforcement system was being operated, so far as possible, to reduce the burden on the courts

and to encourage the purchase of TV licences. There are, moreover, restrictions on the

institution of criminal prosecutions and a prosecution will not be brought unless there is a

realistic prospect of conviction and it is in the public interest to prosecute. The offence must

then be proved ‘beyond reasonable doubt’. The BBC maintains that this leads to fewer members

of the public being proceeded against than would be likely under a civil enforcement system

operating where proof on the ‘balance of probability’ is sufficient.

105

This is explored in more

detail under Options 5 and 6.

78. We were informed by TV Licensing and Capita that, as a general rule, TV Licensing will not

initiate criminal proceedings, or will discontinue proceedings already begun, if the individual

subject to investigation or prosecution is a first-time offender and agrees to buy a TV licence.

106

This is true for the vast majority of cases, though this policy is not extended to those first-time

offenders wilfully trying to avoid prosecution (for example, by making a false ‘no licence needed’

declaration, or causing a search warrant to be issued). It is not clear whether this policy is always

understood by defendants and the Review has concluded that the exercise of the discretion not

to prosecute is capable of being made more transparent. This is explored in more detail when

considering Option 2.

Imprisonment not an available penalty

79. During the course of the Review it appeared that some of the criticisms of the current regime

were based on a number of misconceptions. First, there appears to be a widespread, though

erroneous, belief that the offence is punishable by a period of imprisonment. As we have noted,

the maximum penalty is a fine of £1000 and the average fine imposed on convicted defendants

is £170.

80. Given what appears to be a widespread belief that TV licence fee evaders receive sentences

of imprisonment, it is important to emphasise that this is not the case. Imprisonment is available

in certain limited circumstances where a fine is unpaid and where the offender either wilfully

refuses to pay or is guilty of culpable neglect.

81. The sentencing process is explained in the following paragraphs.

105

BBC consultation response.

106

BBC evidence to the Review.

TV Licence Fee Enforcement Review

Means

82. The sentencing guidelines applicable to Magistrates’ Courts

107

are designed, among other

things, to ensure consistency in sentencing. When determining the level of a fine, the sentencing

court is required to take account of a number of factors (including the seriousness of the offence

and whether it is a first-time offence) and also the financial circumstances of the offender. This

means that the fine should be an affordable sum having regard to the offender’s income and

outgoings. The court has the power to order payment of a fine by instalments; the lowest starting

point for payment of fines is £5 per week, and it is generally recognised that the maximum

weekly payment by a person in receipt of state benefits should rarely exceed this amount.

108

Wilful refusal or culpable neglect

83. Imprisonment for non-payment of fines is only available following a formal inquiry into the

offender’s ability to pay. This inquiry, at which the defendant is present and entitled to legal

representation, often takes place some considerable time after the imposition of the fine and

inevitably after the time for payment has expired. It is conducted by the Magistrates’ Court (not

by TV Licensing), as part of the process of the court enforcing its own orders. It is only where it

is established that the failure to comply with the court order is wilful and culpable, in other words,

where the individual has the means to pay the fine, but deliberately chooses not to do so or

recklessly disregards the court’s order to pay, that he or she may be in jeopardy of being sent

to prison. These matters must be established beyond reasonable doubt.

84. In addition, before imposing a sentence of imprisonment, the court must consider or try all other

methods of enforcement. The other methods of enforcement include applications for deductions

from benefit, attachment of earnings, money payment supervision orders and distress warrants.

It is only where these other methods of enforcement are considered to be inappropriate or futile

that the court is permitted to impose a sentence of imprisonment.

85. It follows that imprisonment is only used as a sanction of last resort, and is not a punitive

measure imposed in respect of the evasion offences.

86. We were also informed that as a matter of practice the Magistrates’ Court will take active steps

to refer individuals in financial difficulties to sources of help such as the Citizen’s Advice Bureau

for advice and assistance in dealing with debt, in an effort to avoid imposing a period of

imprisonment.

107

Sentencing Guidelines Council, Magistrates' Court Sentencing Guidelines (October 2014).

108

Unless on universal credit, in which case we are informed by the Ministry of Justice that deductions may be

higher.

TV Licence Fee Enforcement Review

The sentence of imprisonment for failure to pay a fine issued by the Magistrates' Courts is a last

resort and can only be issued if:

1. there has been a means hearing (to establish that/how much the defendant can pay);

2. the default is due to wilful refusal or culpable neglect;

109

and

3. the court has considered or tried all other methods of enforcing payment and concluded that

they are inappropriate or would be unsuccessful.

110

The use of imprisonment

87. A strong theme of the public’s consultation responses was that the use of imprisonment as a

punishment for TV licence fee evasion is disproportionately harsh. As noted above, this criticism

reflects a common misunderstanding.

88. In 2013 there were 32 people

111

committed to prison for wilful and culpable neglect to pay a

court-imposed fine where the fine in question had been imposed for TV licence fee evasion (of

153,369 were found guilty, a rate of 0.02%).

112

It is not possible to say, on the statistics available,

whether these committals to prison were the result solely of a failure to pay a fine imposed for

licence evasion. The Ministry of Justice referred to the possibility that sentences may have been

imposed for non-payment of other outstanding fines that were consolidated with the fine

imposed for TV licence fee evasion,

113

or the offenders may have been sentenced for other

offences.

114

89. Many of those who understood the distinction between the maximum penalty for the offence,

and the availability of imprisonment as the ultimate sanction for wilful and culpable neglect to

pay a court-imposed fine, nevertheless felt that the use of imprisonment in these circumstances

was disproportionate. However, the availability of imprisonment is not an anomaly. Committal

to prison can be used as a sanction of last resort for the enforcement of any Magistrates’ Court

fine, and, as explained above, the use of imprisonment in the case of unpaid fines is designed

109

This is explained in more detail at Annex D.

110

Sentencing Guidelines Council, Magistrates' Court Sentencing Guidelines, October 2014.

111

Justice Statistics Analytical Services - Ministry of Justice. This figure has been drawn from administrative IT

systems which, as with any large scale recording system, are subject to possible errors with data entry and

processing.

112

Published figures relate to all prosecutions brought under Wireless Telegraphy Acts, overwhelmingly S.363

Communications Act 2013 prosecutions -

www.gov.uk/government/uploads/system/uploads/attachment_data/file/311319/8-outcomes-by-offence.xls.

113

Ministry of Justice consultation response.

114

This was a view expressed by other contributors to the Review. As a matter of practice, it is not unusual for

offenders receiving custodial sentences for an offence to request that other matters be dealt with as part of that

sentence, including outstanding and defaulted fines. In these circumstances, courts may impose additional days

to a sentence, often to be served concurrently and the offender serves a single sentence. It is certainly possible

that this has occurred in the case of offenders who have defaulted or outstanding fines for TV licence fee

evasion. It is therefore difficult to assess why certain fine defaulters were sent to prison, and the review received

no responses from any individual who had served a custodial sentence arising from failure to pay a fine for

licence evasion.

TV Licence Fee Enforcement Review

to enforce the Magistrates’ Court’s order: it is not a punitive measure imposed in respect of the

evasion offence. In this context, it is also relevant to observe that decriminalisation would not

necessarily lead to the removal of imprisonment as a matter of last resort: imprisonment

is available for non-payment of statutory civil debts such as council tax.

115

Not a recordable offence

90. The second misconception is that it is widely believed that a conviction for the offence contrary

to section 363 is a 'recordable offence'. In fact, the offence is not a 'recordable offence', with the

result that it is not included in the record kept on the Police National Computer. While some

stigma inevitably attaches to a criminal conviction, the nature of the offence and the fact that

conviction does not give rise to a criminal record reduces the force of the ‘stigma’ argument.

Disproportionate impact on women and those on low incomes

91. Statistics provided to the Review by the Ministry of Justice show that more women than men

are convicted of TV Licensing offences.

116

This imbalance has been advanced as one of the

key criticisms of the offence by Parliamentarians such as Andrew Bridgen MP.

117

The

exploration for this imbalance and how it might be the subject of further consideration is dealt

with in our analysis of Option 2. For the purposes of considering Option 1, it is relevant to note

that the Review found no basis to conclude that TV Licensing intentionally targets women, or

that its practices are directly or indirectly discriminatory. The cause of the gender imbalance is

difficult to discern, although a number of possible explanations have been advanced. We have

recommended that this matter should be explored by TV Licensing in conjunction with the

Department for Culture, Media and Sport, and a recommendation to this effect is set out

below.

118

92. Concern has also been expressed that the use of imprisonment unfairly affects those who

cannot afford to pay the licence fee. As we have made clear, TV Licensing plays no part in the

process of fine enforcement. Imprisonment is used as a matter of last resort in the cases of

those who wilfully refuse to pay a court imposed fine or are guilty of culpable neglect. There are

nevertheless residual concerns about the impact of the offence on low income households,

particularly as the burden of prosecution on some social groups is likely to increase as a result

of the introduction of the criminal courts charge. These concerns are considered in more detail

under Option 2 where we address TV Licensing’s prosecution policy.

115

Non-payment of council tax is dealt with as a civil debt but a non-payer may still be sent to prison. As with

non-payment of fines, imprisonment is a matter of last resort, after a means inquiry has been concluded and

after it has been proved that the default in payment was either wilful or the result of culpable neglect. The BBC’s

consultation response noted that non-payment of council tax led to 107 people being imprisoned in 2012,

whereas for non-payment of a fine relating to TV licence fee the figure was 51 (and in 2013 had fallen to 32).

116

The proportion of fines imposed for failure to hold a TV licence in 2012 by gender was 32% male 68%

female – table B4a of https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-

september-2014.

117

http://www.conservativehome.com/platform/2014/03/from-andrewbridgenmp-2.html.

118

See recommendation 3.

TV Licence Fee Enforcement Review

The Scope of the Offence

93. One issue that we wish to highlight in relation to the operation of the criminal offence arises

from the uncertainty surrounding its scope in light of recent developments in technology.

94. It is well-known that a TV licence is required in order to watch live television broadcasts and

that not having a TV licence as required amounts to a criminal offence. There is however some

confusion surrounding the requirement to hold a licence when using an electronic device other

than a television. There have been changes to the licence fee framework over the years which

has contributed to this confusion. For example, a licence was not required in order to watch

satellite transmissions which originated outside the UK until 2003.

119

There have also been

changes and revisions to address technological developments, and this has added to the

complexity of the legal framework.

95. Research conducted by the BBC has demonstrated that many members of the general public

feel that the rules surrounding the requirement to hold a TV licence for the use of computers

and mobile phones are unclear. Around one in three respondents to the BBC Trust’s

consultation claimed that it is not clear when a licence is required, or mentioned

particular areas of confusion in their response.

120

96. One area which seems to be in need of clarification arises from the fact that the current

obligation is focused solely on ‘live’ television, which means television programming which is

received at the same time or virtually the same time as it is broadcast.

121

The importance of this

concept has increased with the growing availability of ‘on demand’ services, whereby electronic

devices can be used to watch programmes at times other than at the time of their first broadcast.

97. The current obligation has created a distinction between linear viewing (traditional television

broadcasting), which must be licensed, and non-linear viewing (such as ‘on demand’ or ‘catch

up’ services), which need not be. The existence of this distinction has created what has become

known as the ‘iPlayer loophole’: those who watch only ‘on demand’ can access broadcasting

services (including BBC services), but are not required to hold a licence.

98. Whether or not the offence should be extended to cover non-linear viewing is a difficult subject

outside the scope of this Review, though it clearly has implications for evasion, and adds to the

complexity of investigation.

119

Communications Act 2003.

120

BBC Trust Review of Licence Fee Enforcement, 2009.

121

Regulation 9(3) of the Communications (Television Licensing) Regulations 2004 provides that “receiving a

television programme service includes a reference to receiving by any means any programme included in that

service, where that programme is received at the same time (or virtually the same time) as it is received by

members of the public by virtue of its being broadcast or distributed as part of that service”.

TV Licence Fee Enforcement Review

99. What is apparent from our Review is that the term ‘TV licence’ is a misnomer and has added to

the public’s confusion. This term is probably too entrenched in public consciousness to be

changed, at least in the short-term, although a more accurate description might be ‘broadcasting

charge’ or ‘broadcasting levy’.

Conclusion

100. For the reasons set out above, having taken into account the evidence provided to the Review,

and having regard to the key considerations set out in the Terms of Reference, we have

concluded that the current enforcement regime is appropriate and fair and represents value for

money for licence fee payers and taxpayers.

Recommendation 1:

While the current licence fee collection system is in operation, the current system of

criminal deterrence and prosecution should be maintained.

TV Licence Fee Enforcement Review

3b: OPTION 2

Reform of current system: leave the current offence as it stands, but reform the

current criminal enforcement system.

101. Option 2 would involve retaining the current criminal offence while at the same time making

improvements to the system of enforcement and prosecution, in order to address some of the

concerns that gave rise to the Review.

Overview

102. On the basis of the evidence available to the Review, and having regard to the key

considerations set out in the Terms of Reference, we have concluded that many of the concerns

expressed in relation to the criminal offence (such as that it leads to the imprisonment of licence

fee evaders), provide no compelling basis for change (at least not under the current model of

licence fee collection). In broad terms, the current enforcement regime is operated fairly and

efficiently by TV Licensing on behalf of the BBC and provides good value for the licence fee

payer and taxpayer.

103. That said, there is scope to improve the current system of enforcement (pending any changes

that might result from the Charter Review), particularly in relation to the transparency of the

prosecution process and the tone of TV Licensing’s written communications. It is also

recommended that TV Licensing explore ways to target visits to unlicenced households more

effectively. The recommendations set out below are designed to address some of the concerns

that have been expressed in relation to the current sanctions regime and to improve the fairness

and effectiveness of the process of investigation and prosecution.

104. One matter that emerged from the Review process is that in 2012, 70% of those prosecuted for

TV licence evasion were women.

122

On the evidence available it has not been possible to reach

a definitive conclusion as to why this imbalance exists, although there is no evidence of any

intentionally discriminatory enforcement practices on the part of TV Licensing. It is

recommended that the gender disparity in TV licence prosecutions should be the subject of

investigation and further consideration in the forthcoming Charter Review.

105. The Review has concluded that the investigation and enforcement process would be more

efficient if cable and satellite companies were required to share their subscription information

with TV Licensing, and a recommendation is made to this effect.

106. The Review received a body of evidence to the effect that payment of the licence fee should

be made easier to assist those on low incomes and that this could be achieved by amending

122

The proportion of fines imposed for failure to hold a TV licence in 2012 by gender was 32% male 68%

female. Table B4a of https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-

september-2014.

TV Licence Fee Enforcement Review

the regulations

123

which govern the BBC’s ability to offer flexible payment plans. The Review

agrees with this view and has also made a recommendation to this effect.

124

Discussion

107. The BBC has made major improvements in efficiency since it took over responsibility for licence

fee collection from the Home Office. It has reduced the evasion rate from 12.7% (in 1991) to

around 5%

125

in England and Wales, although levels of evasion are higher in Scotland and

Northern Ireland.

126

This is a notable improvement as even a small change in the level of

evasion has significant cost implications: the current 5% evasion rate equates to approximately

£200m of lost income for the BBC.

127

108. The evasion rate of 5% is lower than most other countries with similar TV licensing systems,

although it is still thought by some to be unacceptable, representing as it does the cost of

evaders using BBC services which have been paid for by licence fee payers. Recovering £200m

of lost revenue could mean maintaining the cost of the licence fee at its current level,

alternatively, it could provide a significant amount of additional funding for the BBC to provide

additional services: either would represent a significant benefit to licence fee payers.

Evasion rates across Europe (2013):

128

● Poland - 65%

● Italy - 26%

● Ireland - 12%

● Sweden - 12%

● Norway - 9%

● United Kingdom - 5%

● Austria - 3%

BBC services costing under £200m a year:

129

● BBC3 - £109.3m

● CBBC - £101m

● BBC News channel - £66.2m

● BBC ALBA £8m

● BBC Radio 1 - £52.8m

● BBC Radio 4 - £120.6m

● BBC Online - £174.4m

Household visits

109. In the course of its own review in 2009, the BBC Trust noted that over 60% of visits to unlicensed

properties are repeated because the initial visit does not result in contact being made with an

occupant. According to TV Licensing’s data collection, once such contact has been made the

likelihood is that the occupant will purchase a licence within 28 days.

130

The Trust has suggested

123

Communication (Television Licensing) Regulations 2004.

124

See recommendation 4.

125

BBC Trust Review of Licence Fee Enforcement, 2009.

126

Evidence provided to DCMS by the BBC, evasion rates 2014: UK 5.4%, England and Wales 5.2%, Scotland

7.3% (taken from BBC consultation response and other BBC evidence).

127

Cost benefit analysis (Annex B).

128

http://www.tvlicensing.co.uk/cs/media-centre/news/view.app?id=1362435051910

129

BBC Annual Report and Accounts, 2013/14.

130

BBC Trust Review of Licence Fee Enforcement, 2009.

TV Licence Fee Enforcement Review

that by using the existing database to target unlicensed addresses, and by striving to ensure

that contact is made with the occupant, TV Licensing could increase the number of licences

issued at an early stage of the enforcement process, thus avoiding the need to initiate criminal

proceedings.

131

110. More focused targeting of unlicensed households would reduce the number of unnecessary

visits and thus reduce the burden on TV Licensing; it would also benefit those members of the

public who currently receive visits even though they have or do not need a TV licence.

111. Any step that will increase compliance with the obligation to hold a licence and reduce the

number of prosecutions is to be welcomed. We agree with the suggestion made by the BBC

Trust and recommend that TV Licensing should explore ways to target household visits more

effectively.

Recommendation 2:

TV Licensing should explore ways to target unlicensed household visits more

effectively, to increase the likelihood of an enquiry officer making contact with

occupiers.

Efficiencies in licence fee collection

112. As noted above, the costs incurred by the BBC in collecting the licence fee have been reduced

with the result that in 2013/14, for the first time, these costs were less than 3% of licence fee

income.

132

The Culture, Media and Sport Select Committee has noted that this compares

favourably to the peak of 6% collection costs when the enforcement scheme was administered

by the Home Office.

133

The current contract with Capita is structured to deliver savings of £220m

over 8 years.

134

113. The evidence available to the Review suggests that the current court process is efficient, and

will be further streamlined by amendments to the system of summary justice by the Criminal

Justice and Courts Act 2015. The Ministry of Justice informed us that future automation of many

of the (currently manual) administrative processes carried out by the courts will lower the cost

of fine enforcement and increase the amount collected by way of fines.

135

131

BBC Trust Review of Licence Fee Enforcement, 2009.

132

BBC Annual Report and Accounts 2013/14.

133

House of Commons Culture, Media and Sport Committee, ‘Future of the BBC’, Fourth Report of Session

2014/15.

134

BBC Annual Report and Accounts 2013/14.

135

Ministry of Justice consultation response.

TV Licence Fee Enforcement Review

114. Overall, it appears that the current enforcement system provides good value for licence fee

payers and taxpayers and improvements made in recent years by the BBC and Ministry of

Justice have increased its efficiency further.

115. The BBC Trust has made clear its commitment to maintaining value for money and helping

people to pay for TV licences as the following extract from its 2009 review of licence fee

collection makes clear.

BBC Trust review of TV licence fee collection (2009)

“The BBC Executive must maintain value for money and secure the finances intended to

fund BBC services for the public at large. The BBC’s collection strategy needs to be

designed to help people pay for their licence by ensuring the system is as customer focused

as possible. At the same time it must ensure that it fulfils its responsibility to the vast majority

of households who pay their licence fee, by vigorously pursuing those that deliberately

evade payment.”

Gender disparity

116. In its consideration of the current sanctions regime, the Review explored whether there is any

inbuilt bias in the process of investigation and prosecution which unfairly impacts on women or

other groups, such as those on low incomes.

117. Statistics compiled by the Ministry of Justice demonstrate that more women than men are

prosecuted for TV licence offences.

136

The BBC also provided statistics which reveal that of

those interviewed in the course of the enforcement process 67% are female, and of those

prosecuted 70% are female.

137

These figures are stark and clearly indicate that women are

significantly more at risk of prosecution than men.

118. It was suggested by the BBC and Ministry of Justice that one possible explanation for this

gender disparity is that more women than men are present at homes when enquiry officers are

carrying out their investigations during daytime hours. This suggestion prompted the Review

Team to obtain evidence in relation to the visiting practices. This evidence demonstrated that

TV Licensing (in an effort to ensure that officers are not unfairly targeting any particular group

of individuals, either by gender or otherwise) stagger their investigations and visits take place

during both daytime and primetime viewing (evenings and weekends).

138

119. The evidence revealed that the number of women prosecuted is higher than for men across all

visiting hours, and contributors to the Review attributed this to what was characterised as a

136

The proportion of fines imposed for failure to hold a TV licence in 2012 by gender was 32% male 68%

female. Table B4a of https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-

september-2014.

137

BBC evidence to the Review.

138

BBC evidence to the Review.

TV Licence Fee Enforcement Review

cultural phenomenon, namely that women are more likely than men to deal with household

callers.

139

The significance of this point is that TV Licensing prosecutions must be brought

against an individual evader, rather than a household, and it is likely that the person who first

speaks to the enquiry officer is the person most at risk of prosecution. That said, it has not been

possible to find any definitive reason for the existence of the gender disparity in prosecutions.

Percentage of TV licence fee evasion cases involving females in 2014

140

Visit Time Slot

Interview Under Caution

Prosecution

Non-Prime Time

68%

70%

Prime Time 16:00-18:00

69%

72%

Prime Time 18:00-21:00

66%

71%

Prime Time Weekends

63%

69%

Total

67%

70%

120. While we have found no evidence to suggest that enforcement activity is unfairly and

intentionally targeted at women, or any other group, the disparity in the number of prosecutions

brought against women is striking and further work is required to understand this imbalance.

This issue is linked to TV Licensing’s discretion not to prosecute or to discontinue prosecutions

in the public interest. We make further recommendations in relation to this in the sections that

follow. At this point we simply note the importance of any decision to prosecute and the care

that is to be exercised in ensuring that any prosecution is brought only where it is justified as

being in the public interest.

Recommendation 3:

The BBC and the Department for Culture, Media and Sport should explore ways to

investigate and consider the gender disparity in TV licence prosecutions.

Low Income Groups

121. The BBC provided evidence to suggest that licence fee evasion is not more prevalent in less

well-off households.

141

According to research conducted by TV Licensing, the socio-economic

profiles of unlicensed addresses reflect those of the general population as a whole and not any

139

It may also be the case that more women assume responsibility for household bills such as TV licences, but

we have no basis either to confirm or refute this assumption.

140

BBC evidence to the Review.

141

It was suggested to us by some consultation respondents (John Whittingdale MP, Andrew Bridgen MP,

Christians Against Poverty) that the current enforcement regime has an unfair impact on those on low incomes,

but this was not supported by information we received from the BBC and Ministry of Justice.

TV Licence Fee Enforcement Review

particular social group.

142

We were also informed that enforcement activity was not more likely

to take place in areas with a prevalence of lower income households.

122. The BBC also provided information confirming that there is a range of payment options available

to the public, including payments by instalments, designed to assist those on low incomes.

143

The BBC Trust has noted however, that whilst the payment options offer customers an element

of flexibility, the payment plans are more rigid than they would like and have the potential to

create difficulties for those on low incomes. For example, under a cash payment scheme, the

first year’s licence must be paid for within 6 months, and the BBC’s own research suggests that

this is not as helpful as “other annual instalment plans, such as utilities bills, where payment is

spread evenly over 12 months”.

144

123. The various payment schemes were explained in the BBC Trust Review of Licence Fee

Enforcement, 2009:

Payment schemes

145

As an alternative to paying the licence fee up front in one lump sum there are a number of instalment plans to

help spread the cost. The rules surrounding these plans are set and regulated by the Department for Culture,

Media and Sport. The plans enable people to pay six months in advance and six months in arrears. This is

achieved by collecting full payment for the first licence over the first six months and then spreading the cost of

subsequent licences over 12 months.

Whilst the up-front loading of costs also helps protect the BBC from the loss of people who start to pay for their

licence in instalments but stop before the whole amount has been collected, the Trust believes that by making

these schemes as attractive and simple as possible people are less likely to opt out of them.

Under the cash payment plan scheme, weekly or monthly payments can be made by phone, online or at a

PayPoint outlet and are designed to spread the cost of a licence into manageable instalments. The payment

cycle is as follows:

- Year 1, first six months: the customer is issued with a full year’s licence at the start, which is paid for

over six months, so the customer is in arrears for the first six months, at the end of which the Year 1

licence is fully paid for.

- Year 1, second six months: the customer makes half-rate payments and is now saving towards the

Year 2 licence, so is paying in advance. By the end of the second six months, the customer has paid

for half of the Year 2 licence.

- Year 2, first six months: the customer is issued with a full year’s licence at the start, but has paid for

only half of it, so is paying in arrears. The half-rate payments continue and at the end of the six months,

the Year 2 licence is fully paid for.

- Year 2, second six months: the customer starts saving towards the Year 3 licence, continuing with the

half-rate payments, so is paying in advance. By the end of the year, half of the Year 3 licence will have

been paid for, and so on.

Customers who fall behind with payments will get arrears letters and may also get phone calls and texts from

Capita agents acting on behalf of TV Licensing. If payments for arrears are not forthcoming, a customer may

142

BBC evidence to the Review.

143

BBC evidence to the Review.

144

BBC Trust Review of TV Licensing Fee Collection, 2009.

145

BBC Trust Review of TV Licensing Fee Collection, 2009.

TV Licence Fee Enforcement Review

be passed to Capita’s debt collection agency, which does not buy the debt but manages it on behalf of TV

Licensing.

Unlike the monthly Direct Debit and Cash Payment Plan the quarterly Direct Debit scheme does not require

any up-front payments. However, in order to join this scheme the licence fee payer is required to pay a £5

annual charge on top of the licence fee because most of the payment for the licence is in arrears.

124. As well as creating a barrier for some would-be licence fee payers, this payment system is

complicated and unnecessarily confusing. However the requirements of the instalment

schemes are contained in regulations

146

over which the BBC and TV Licensing have no control.

The BBC has indicated its willingness to work with Government to explore a simplified approach

with “increased flexibility in the instalment schemes, to allow TV Licensing to adapt payment

plans to suit the individual and help them to stay licensed”.

147

125. This is a desirable objective and the introduction of a simple instalment scheme, tailored to the

needs of individual households, would help those who wish to adhere to the law, but who at

present are unable to take advantage of the pre-payment schemes. This would also ensure that

TV Licensing’s enforcement activities are appropriately focused on those who are intentionally

refusing to comply with their legal obligation and using services paid for by others.

Recommendation 4:

The Department for Culture, Media and Sport, in conjunction with the BBC, should

explore ways of amending the current regulations to allow simple and flexible payment

plans for those facing difficulty in paying the licence fee.

Minority groups

126. The Review has also considered whether the enforcement process unfairly targeted immigrants

and black and minority ethnic groups. An equality analysis

148

carried out by TV Licensing in

November 2011 showed that race does not influence household visit selection; it is the case,

however, that certain areas with a high BME population were found to display many of the

characteristics that influence visit selection. A more recent study, completed in 2014, confirmed

this finding, but noted that areas with a higher BME population tend to have a lower contact rate

(that is the rate of visits where contact is made), with the result that fewer statements are

obtained from householders and fewer cases progressed to prosecution.

149

127. The weight of the evidence available to the Review suggests that there is no targeting of minority

groups and that the BBC and TV Licensing have various strategies in place to monitor diversity

and actively engage with minorities.

146

Communications (Television Licensing) Regulations 2004.

147

BBC consultation response.

148

BBC evidence to the Review.

149

BBC evidence to the Review.

TV Licence Fee Enforcement Review

128. The BBC provided evidence showing good levels of communication with non-English speakers.

TV Licensing provides information, available online and in leaflet form, in 15 languages other

than English and Welsh.

150

It also provides a phone translation service for use by non-English

speakers which allows customers to set up or pay for a TV licence in more than 180

languages.

151

129. Enquiry officers are equipped with information cards in several languages, and if a customer is

unable to understand English and there is no suitable interpreter available, officers are

instructed not to complete a statement. The Visiting Procedures Manual states that interviews

under caution can take place in other languages and sign language, though interpreters are not

provided by TV Licensing.

152

130. Research conducted by the BBC Trust in 2009 acknowledged difficulties in communicating with

communities which are less likely to be online, and that new arrivals to the UK are not always

aware that the law requires a TV licence for watching live television broadcasts, including their

own national TV programmes via satellite. It has been recommended by the BBC Trust that this

should remain an area of focus for TV Licensing. We endorse this approach and in light of the

Trust’s awareness of the issue, it is not necessary to make any formal recommendation in this

regard.

BBC diversity engagement case studies

“The BBC Executive already has a system of partnerships with stakeholder organisations which

exist to help them reach a wide range of audiences. Its programme for new migrants includes grass-

roots communications activity in local communities, contacting third-party groups who can pass on

information to individuals, such as community groups, employers, local authorities and housing

associations.”

- BBC Trust Review of Licence Fee Collection 2009

“TV Licensing’s extensive social inclusion programme targets hard-to-reach and low income

communities, helping to raise awareness of when a licence is needed, the many ways to pay, and

the consequences of watching TV while being unlicensed. TV Licensing does this by engaging with

national and local organisations which provide trusted advice and support to people in these

communities. A large part of this involves partnering with advice organisations and debt

management charities. In 2013/14 it worked with nearly 70 national and 360 local groups of all

kinds: housing associations; money advice organisations; and minority group organisations.”

- BBC consultation response, 2015

150

All visits, correspondence, calls and emails are offered in Welsh if required (Capita TV Licensing England &

Wales Visiting Procedures, 2014).

151

BBC consultation response.

152

Capita TV Licensing England & Wales Visiting Procedures, 2014.

TV Licence Fee Enforcement Review

Requirement to purchase a licence

131. One of the factors included in our Terms of Reference concerned the ease with which the

obligation to hold a licence is enforced. In this context one of the issues raised for our

consideration was the inability to compel defendants convicted of the evasion offence to buy a

licence, with the possibility that the evader will remain unlicensed, which raises the possibility

of further offending and the risk of further prosecution. Accordingly, the Review considered

whether it would be feasible to introduce a requirement to buy a licence as part of the current

penalty for the offence, or to permit the BBC to impose charges for periods when the evader

was unlicensed, thus allowing the BBC to recoup the lost revenue (if backdated) or lessen the

loss from evasion (if forward-facing).

132. On analysis, it appears that the difficulties associated with introducing a requirement to buy a

licence as part of the penalty for the offence are twofold. First, the convicted evader may no

longer be subject to the obligation to hold a licence, or may dispute that this is the case, in which

event it would be necessary for the Magistrates’ Court to make a determination on the issue.

Second, it is difficult to envisage how the obligation would be enforced without adding to the

complexity of the enforcement process. For these reasons, we have concluded that to introduce

such a requirement would be impractical and, given the continuing obligation to hold a licence,

would serve no useful purpose.

133. An additional difficulty in relation to backdating is that it would require proof of the period during

which evasion has occurred. In the case of Vehicle Excise Duty evasion, an assumption is

applied and backdating takes place to the expiry of the previous licence.

153

However it would

not be proportionate to apply the same or similar reasoning to TV licences because parts of the

unlicensed period may have been legally unlicensed, or at least arguably so.

134. In summary, it would present a great many evidential difficulties to attempt to establish the exact

period of unlicensed use and to introduce an assumption in relation to unlicensed use would

create a risk of unfairness. The anti-TV licence pressure group TV Licence Resistance

154

argued

that: “any form of automatic assumption about the length of time for which a household was

unlicensed would be intrinsically unfair because: (a) TV might not have been watched during

some or all of the unlicensed period, and (b) the responsibility for the licence may have changed

(possibly informally) during the unlicensed period”.

135. The Review has concluded that any attempt to enable the BBC to recover lost revenue by

charging for the periods when the evader was unlicensed or compelling the evader to purchase

a licence would either be unworkable or unfair, and accordingly the position should remain as it

is.

155

We do, however, emphasise that the priority should always be to encourage compliance

153

Vehicle Excise and Registration Act 1994, section 31.

154

A pressure group which argues for the abolition of the licence fee system.

155

The Magistrates’ Court Sentencing Guidelines make it clear that an aggravating feature of the offence is the

period of unlicensed use and a period in excess of 6 months is likely to result in a higher financial penalty.

TV Licence Fee Enforcement Review

with the law and that where an evader agrees to buy a licence, a prosecution may not be

necessary in the public interest. We address this issue in more detail below.

Access to additional data sources

136. Under the current enforcement system, TV Licensing has access to only a limited amount of

information (such as the database of unlicensed addresses) on which to base its investigations.

It has been suggested that providing the BBC with additional sources of information may result

in a more efficient collection of the licence fee, thus reducing the level of evasion.

137. During the course of the Review, the BBC and Ministry of Justice identified a number of sources

of information, access to which might increase TV Licensing’s ability to reduce evasion. One

suggestion was to reinstate the requirement for retailers to notify TV Licensing of the purchase

of electronic devices capable of playing or recording television programmes. The general

consensus of those who contributed to the Review is that this is unlikely to be effective for the

simple reason that many people now watch television on a range of devices (tablets, laptops

and mobile devices) and, as these devices are capable of being used for purposes other than

watching television, it would be ineffective to use sales data as a source of any useful

information. It was also argued that such a requirement would place a disproportionate burden

on retailers.

138. The BBC suggested that access to council tax data or the electoral roll would be helpful in

identifying unoccupied premises and the identities of adult residents of occupied premises.

156

While the BBC accepted that such access would have to be subject to strict data controls, public

responses expressed concern about this proposal and the Review has concluded that it would

not be appropriate to make any recommendations to this effect.

139. Another possibility, raised by the BBC and TV Licensing, was the use of information derived

from pay-TV providers (for example, cable or satellite subscriptions) which could provide a clear

indication of TV usage. It was felt that this would be less intrusive than access to council tax or

electoral roll data, with the potential to be particularly helpful in increasing the effectiveness of

investigations. Having access to this type of data would have the added advantage of making

the investigation process less onerous to householders, in that it would allow more targeted and

possibly less intrusive investigations.

140. It is of interest to note that the Republic of Ireland has recently announced that it may grant An

Post (the Irish Television Licensing authority) access to cable or satellite subscription

information, thus enabling it to check the information against its database of licence fee payers.

The Irish Government has made it clear that access to the information will be available “solely

for statutory functions in relation to licence fee collection and the commercial confidentiality of

the information will have to be safeguarded”.

157

156

BBC consultation response.

157

http://www.irishtimes.com/business/retail-and-services/government-launches-crackdown-on-tv-licence-fee-

evasion-1.1859274.

TV Licence Fee Enforcement Review

141. We have concluded that enabling the BBC to have access to pay-TV subscription information

would be a proportionate response to the difficulty of identifying evasion and would have the

additional advantage of making the enforcement process more targeted and possibly less

intrusive.

Recommendation 5:

Consideration should be given to the introduction of a requirement for cable and

satellite TV companies to share their subscription information with TV Licensing in

order to improve the investigation and enforcement process.

Notification that no licence is required

142. The Review considered whether the introduction of a negative notification requirement, as is

currently the case for untaxed vehicles (through a Statutory Off Road Notification, or SORN),

158

would be a practical addition to the enforcement regime. This proposal would aim to increase

the efficiency of enforcement through more targeted investigations.

143. Under the current regime, those households which do not require a licence are encouraged to

inform TV Licensing of this fact (through a ‘no licence needed’ declaration), but there is no legal

obligation to do so. The consensus of those who contributed to the Review was that a

notification obligation would not make any significant improvement to the system of investigation

and the additional regulations and costs involved, particularly the unnecessary burden to

householders, would not be justified. It would also require the introduction of an additional

offence - failure to inform TV Licensing of the fact that a television licence is not needed - which

is undesirable having regard to the likely benefit. For these reasons the review concluded that

it would not be appropriate to introduce any such negative notification requirement.

The prosecution process

144. Under the current prosecution policy operated by TV Licensing, a first-time offender may often

avoid prosecution by buying a licence at any point up to the Magistrates’ Court hearing. Whilst

individuals are informed of this by letter following the enquiry officer’s visit, the policy is not

publicly available and consequently not generally known. When informed of the existence of

this policy, participants in the Review were of the clear opinion that the policy should be more

widely-known. They also argued that this process offered individuals many of the benefits that

would be more formally available through other systems (such as an out-of-court settlement

(Option 3) or a fixed penalty notice scheme (Option 4), without the need for more radical and

potentially costly reform.

158

Vehicle enforcement policy table: https://www.gov.uk/government/publications/vehicle-enforcement-policy.

TV Licence Fee Enforcement Review

145. The desirability of publicising the policy was acknowledged by the BBC, and it was suggested

that the public interest test applied by TV Licensing when considering prosecution “already

amounts to a de facto out-of-court settlement system”.

159

The BBC expressed a willingness to

increase the perceived fairness of the current regime, and that one way of doing this was to

make the operation of the public interest test more transparent. In particular, the BBC suggested

that TV Licensing should publish a code which sets out the steps it will take before instigating a

prosecution (including the considerations it will apply in deciding whether it is in the public

interest to prosecute), and to make this available to suspected evaders on the occasion of

household visits, rather than by letter as currently is the case.

146. For its part, TV Licensing had been opposed to this level of transparency and expressed a

concern that it could increase evasion, or at least encourage periods of evasion. Despite this

concern, given that the threat of prosecution remains, and any deliberate attempt to exploit the

policy would be a factor in favour of prosecution, it seems unlikely that evasion will increase.

This is particularly so given that a policy of encouraging compliance rather than resorting to

prosecution is already in operation, and the only difference is that it will be publicised. We are

of the view that the increased transparency could go some way to addressing the concerns

expressed over perceived unfairness in the enforcement process. The stance now adopted by

the BBC indicates support for a change in approach.

147. Set against this, one member of the public argued that an out-of-court system would be

preferable, as he felt that TV Licensing should not have the power to ‘sell justice’ by deciding

either not to prosecute or to discontinue an existing prosecution in circumstances where a TV

licence is purchased by the evader. While we acknowledge the sentiment behind this point of

view, it seems to us that the purchase of a TV licence is a legitimate public interest factor for TV

Licensing to take into account when exercising its prosecutorial discretion. We also consider

that TV Licensing’s principal concern, so far as possible, is to ensure compliance with the law:

if this can be achieved without resort to prosecution, then so much the better for the public, the

individual and the BBC.

148. We also consider that the publication of a prosecution policy will assist in ensuring that all cases

are the subject of careful consideration before a prosecution is instituted.

Recommendation 6:

TV Licensing should consider increasing the transparency of its prosecution and

enforcement policy, and provide clearer guidance to those at risk of prosecution. This

guidance could take the form of a code detailing the steps that will be taken before

prosecution, including the public interest considerations that will be applied when

deciding whether to prosecute. Any such code should be published and made

available to suspected evaders at the earliest possible opportunity in the enforcement

process.

159

BBC consultation response.

TV Licence Fee Enforcement Review

Tone of TV Licensing communications

149. In response to the consultation a number of individuals expressed dismay at the manner in

which some investigations are conducted and the tone of TV Licensing’s communications. One

contributor to the Review labelled the conduct of enquiry officers “heavy-handed and

threatening”. While this was not the view of the majority of participants, those who did advance

criticisms spoke in terms of “harassment”, particularly in relation to letters received from TV

Licensing, which it was felt were unnecessarily hostile and aggressive.

Case study – TV licence appeal (2013-15)

The Review Team examined the findings of a TV licence appeal provided by the BBC Trust.

This contained a complaint arising from “threatening” language in TV Licensing’s

correspondence. The Trust’s response noted that the language had been amended since

receipt of the complaint and it was now more direct and understandable, and included more

explicit instructions about the steps to be taken by customers encountering difficulties in

maintaining payments. However a subsequent letter, sent before the customer’s licence had

expired, contained references to a debt collection agency. The Trust ruled that it was

unacceptable to raise referral to debt collection agencies with a fully-licenced member of the

public, and asked the BBC Executive to make relevant changes to its systems.

160

150. The BBC Trust conducts an annual review to ensure that the enforcement arrangements put in

place by the BBC Executive are “efficient, appropriate and proportionate”.

161

In the course of its

2009 review, The Trust noted that TV Licensing’s dealings with the public should not be

accusatory, and should “aim to be polite, firm and informative”. It was acknowledged, however,

that “this is not always the case” and that the public found them to be “too harsh”. It concluded:

“The BBC Executive must improve the tone of the early stages of TV Licensing’s

correspondence with the public”.

162

It is to be noted that TV Licensing conducted a “major

overhaul” of their correspondence in July 2014, but dissatisfaction with the tone and content of

TV Licensing’s letters remained a consistent theme among some of the responses provided by

members of the public in their consultation responses.

Recommendation 7:

TV Licensing should consider changing the tone and content of its written

communications with households so as to ensure that they are expressed in

reasonable terms and can be easily understood.

160

BBC Trust evidence to the Review.

161

BBC Trust Review of TV Licence Fee Collection, 2009.

162

BBC Trust Review of TV Licence Fee Collection, 2009.

TV Licence Fee Enforcement Review

Conclusion

151. This Review has been undertaken within the existing licence fee structure. The principal

recommendation is that the current enforcement system should be maintained, at least while

the current licence fee collection system is in place. That said, there is scope to improve the

current system and address some of the concerns raised in the consultation process,

particularly in relation to the transparency of the prosecution policy. We are confident that these

changes could be implemented while maintaining the deterrent effect of the criminal offence

and without adding unnecessary additional cost to the licence fee payer or taxpayer.

152. We recommend that:

● TV Licensing should explore ways to target unlicensed household visits more effectively to

increase the likelihood of an enquiry officer making contact with occupiers.

● The BBC and the Department for Culture, Media and Sport should investigate and give further

consideration to the gender disparity in TV licence prosecutions.

● The Department for Culture, Media and Sport, in conjunction with the BBC, should explore ways

of amending the current regulations to allow simple and flexible payment plans for those facing

difficulty in paying the licence fee.

● Consideration should be given to the introduction of a requirement for cable and satellite TV

companies to share their subscription information with TV Licensing, in order to improve the

investigation and enforcement processes.

● TV Licensing should consider increasing the transparency of its prosecution and enforcement

policy and provide clearer guidance to those at risk of prosecution. This guidance could take

the form of a code detailing the steps that will be taken before prosecution, including the public

interest considerations that will be applied when deciding whether to prosecute. Any such code

should be published and made available to suspected evaders at the earliest possible

opportunity in the enforcement process.

● TV Licensing should consider changing the tone and content of its written communications with

households, so as to ensure that they are expressed in reasonable terms and can be easily

understood.

TV Licence Fee Enforcement Review

3c: Option 3

Out-of-court settlement: retain the criminal offence, with an option for disposal by

way of an out-of-court settlement.

153. Option 3 would retain television licence evasion as a criminal offence while allowing a monetary

penalty to be imposed by way or an out-of-court settlement. This type of out-of-court settlement

scheme is currently used by the Procurator Fiscal in relation to the vast majority of TV licence

evasion cases in Scotland.

163

A similar scheme is operated by the DVLA in respect of certain

vehicle offences.

164

It is envisaged that TV Licensing would offer individuals the opportunity to

accept an out-of-court settlement (payment of a sum of money by way of a penalty) as an

alternative to prosecution. If the offer is not accepted, the case proceeds to prosecution in the

normal way. If the offer is accepted, payment of the total amount is made within a specified

period, usually within 3 to 4 weeks.

Overview

154. At first sight, Option 3 appears to provide an attractive alternative to the current scheme of

prosecution, while falling short of outright decriminalisation. However, on closer consideration,

the adoption of such an out-of-court settlement scheme raises a number of difficulties. First,

there is no equivalent of the Procurator Fiscal in England and Wales and the scheme would

have to be administered by TV Licensing (or possibly by another agency specifically created for

the task). Second, if the scheme were to be administered by TV Licensing, it would be for TV

Licensing to set the figure of the out-of-court settlement (unless it were prescribed by statute or

contained in regulations), and it would be for TV Licensing to decide on the cases in which it

was appropriate to make the offer of settlement. Third, whether or not the scheme is

administered by TV Licensing, the creation of such a scheme would require the investment of

resources and training which is likely to be costly. Fourth, setting the figure of the out-of-court

settlement amount is likely to be difficult and controversial. Fifth, the implementation of such a

scheme carries the risk of increased evasion, although the extent of the risk is likely to depend

on the amount fixed as the settlement figure. Sixth, an out-of-court settlement scheme may

impact unfairly on defendants who cannot afford to pay the full amount of the penalty within 28

days. Finally, even if such a scheme were to be implemented, it might soon become overtaken

by events following the forthcoming Charter Review. It is for these reasons that the Review

made no recommendation in relation to Option 3.

155. In the following paragraphs we consider the merits of Option 3 based on the evidence provided

to the Review and having regard to the key considerations as set out in the Terms of Reference.

163

Section 302 of the Criminal Procedure (Scotland) Act 1995. The Procurator Fiscal has the power to offer.

Fiscal fines for almost all offences which could otherwise be tried summarily.

164

https://www.gov.uk/government/publications/vehicle-enforcement-policy.

TV Licence Fee Enforcement Review

Discussion

156. On its face, this option would seem to provide greater value for money for the taxpayer, as there

would be fewer cases proceeding to the Magistrates’ Court for prosecution. The out-of-court

settlement would allow individuals an additional opportunity to avoid the court process by paying

an agreed amount to the BBC. In Scotland, the vast majority of TV Licensing cases are dealt

with in this way, with a consequential saving in court time and resources. The Voice of the

Listener and Viewer

165

supported the adoption of an out-of-court settlement scheme: “We

believe it would be preferable if licence fee evasion cases were disposed of via an out-of-court

fine, avoiding the necessity of a court hearing. This would mean significantly fewer cases would

be dealt with through the courts, which would reduce costs both for offenders and the courts. It

would also reduce the inconvenience for individuals caused by loss of income or travel costs

attending court.”

166

Andrew Bridgen MP commented that the out-of-court settlement system

appeared to be a more efficient system than the one currently in place.

167

157. The Ministry of Justice agreed that there could be a cost saving by using a system of out-of-

court settlement, but argued that the saving would be limited (on the basis that the existing

system is efficient and does not impose a significant burden to the taxpayer in terms of cost).

Significantly, the Ministry of Justice believes the cost saving would only accrue if evasion

remained at the current level, while anything more than a minimal increase in the rates of

evasion would offset the savings in costs.

168

Additionally the Ministry of Justice noted that the

court would no longer receive fine revenue and whether or not it would result in a saving to the

taxpayer would depend on a number of factors (the acceptance rate, enforcement costs and

level of the penalty). These factors are considered below.

158. In addition to the potential benefit to the taxpayer, Option 3 also has the potential to provide

good value for licence fee payers. TV Licensing would no longer be taking on the role of

prosecuting a large number of cases through the Magistrates’ Court; prosecutions would only

take place in those cases where the out-of-court settlement had been rejected or those in which

it was inappropriate to proceed by way of such a settlement.

159. An idea of the possible scale of the cost saving can be gleaned from the operation of the out-

of-court settlement system in Scotland, where TV Licensing passes its cases to the Procurator

Fiscal and where, from that point onwards, any prosecution costs are incurred by the Crown

Office. In 2014, the costs of prosecution incurred by TV Licensing were 38% lower per case in

Scotland than in England and Wales.

169

It is the case, however, that the taxpayer bears the

burden of funding the Procurator Fiscal.

165

A consumer group representing listeners and viewers on a range of broadcasting issues.

166

Voice of the Listener and Viewer consultation response. The number of cases brought to the Magistrates’

Court in 2013/14 was 178,332, this represents an estimated 0.3% of court time.

167

Andrew Bridgen MP evidence to the Review.

168

Ministry of Justice evidence session.

169

In 2014 the cost to TV Licensing of prosecution in Scotland was £74.90 compared to £120.81 for England

and Wales. BBC evidence provided to the Review.

TV Licence Fee Enforcement Review

160. Despite the superficial value of comparisons with the scheme operated by the Procurator Fiscal,

the Scottish example needs to be approached with a degree of caution as there is no equivalent

of the Procurator Fiscal in England and Wales. It follows that an out-of-court settlement scheme

in England and Wales would have to be administered by TV Licensing (or possibly another

agency) with the result that the cost of enforcement would be borne by the licence fee payer (or

possibly the taxpayer).

170

A number of consultation respondents expressed the view that TV

Licensing should not be given the power to administer the out-of-court settlement, nor should

TV Licensing be able to set the level of the payment.

171

Others focused on the fact that such a

scheme would require the BBC to take on a very different role and possibly impact on how it is

perceived as an organisation by the public. The BBC Executive stated that to administer an out-

of-court settlement system would present a number of difficulties as TV Licensing does not have

the expertise to set and enforce fiscal fines. For these reasons, the BBC Executive suggested

that it would be more appropriate for any such scheme to be administered by an independent

adjudicator.

172

However the creation of a new administrative body would involve additional costs

in each of the separate jurisdictions.

161. Quite apart from the potential cost arising from the implementation of such a scheme, there are

other potential difficulties. These arise principally from trying to estimate the number of evaders

likely to agree to the out-of-court settlement, the potential problems involved in recovery of the

penalty, and the problems involved in setting the amount of the out-of-court penalty.

Number of evaders diverted

162. As the Ministry of Justice recognized, the taxpayer would only benefit from the adoption of a

scheme of out-of-court settlements if a large number of cases were diverted from the

Magistrates’ Court. However, if fewer evaders than expected accepted the offer of the

settlement, or the evasion level increased, which in turn led to more cases being investigated

and prosecuted, this would have a negative impact on the value of such a scheme to the

taxpayer. Several public consultation responses raised these or similar concerns.

Recovery of the penalty

163. An additional difficulty is the uncertainty of whether a move to an out-of-court settlement scheme

would result in the successful collection of penalty monies. As is currently the case with court-

imposed fines, defaults in payment are likely to occur. In the event of default, there would be a

reduction in the revenue available to the taxpayer and a cost burden arising from the process

of enforcement.

173

The revenue derived from the DVLA out-of-court settlement scheme appears

170

This would also be the position in other jurisdictions, whether or not administered by TV Licensing.

171

Andrew Bridgen MP and John Whittingdale MP evidence to the Review.

172

BBC Executive evidence to the Review.

173

Ministry of Justice consultation response.

TV Licence Fee Enforcement Review

to be significantly less than that received from prosecutions and the compliance rate with court

fines appears to be higher.

174

Level of penalty

164. A crucial element, in terms of feasibility, is the level of the financial penalty imposed by way of

settlement. The significance of this point is that the level of the settlement will have a direct

bearing on the incentive to obtain and pay for a licence rather than evade.

165. The Ministry of Justice argued that the settlement would need to be set at a level high enough

to deter evasion (that is, higher than the cost of a TV licence) and cover the running costs of

the scheme, but low enough to encourage individuals to take up the offer.

175

The problem is that

if the penalty is set too high, the evader would see the courts as the preferred option as it may

be possible to receive a lower means-tested penalty. On the other hand if the penalty is set too

low any increase in evasion would have a significant impact on revenue;

176

this would

significantly reduce any benefit that might otherwise accrue to the licence fee payer. As the

average fine under the current system is £170

177

the settlement figure would need to be lower

than this amount but higher than the current level of the colour licence fee at £145.50.

178

166. The level of the financial penalty is £75 in Scotland and, as the BBC has pointed out, evasion

levels in Scotland are higher than in England and Wales.

179

174

Evidence provided by the Ministry of Justice (in reference to an earlier Home Office review).

175

This was also the view of the Home Office in an earlier review.

176

BBC evidence submitted to the Review. Each 1% rise in evasion rate would amount to £39m in lost revenue

for the BBC.

177

Ministry of Justice consultation response.

178

The Ministry of Justice suggested that there was potential for orchestrated campaigns to evade the fee if the

out-of-court settlement were to cost less than buying a licence, as individuals may choose to run the risk of

being caught and then pay the out-of-court settlement rather than paying for the higher cost of a licence.

Ministry of Justice consultation response.

179

The evasion rates in Scotland (7.3%) is significantly higher than in England (5.2%). The BBC attributes this,

at least in part, to the out-of-court settlement scheme. The Criminal Proceedings etc. (Reform) (Scotland) Act

2007 amended the Criminal Procedure (Scotland) Act 1995 so that an offer of fiscal fine was deemed accepted

if the alleged offender failed to provide notice of refusal within 28 days of the offer. This change in legislation led

to an increase in the number of cases that received a fiscal fine. Prior to this an offer of fiscal fine that was not

accepted required the Procurator Fiscal to review the case for prosecution or other measures. And prior to 2007

evasion rates in Scotland were lower than their current rate, at 5.9%. However this was still around 1% higher

than in England and Wales. Despite evidence that since 2007 evasion has increased at a higher rate in

Scotland, with a notable increase of 2% between 2010 and 2011, this Review has not seen any evidence to

suggest that this is necessarily causally related to the use of the out-of-court settlement system. Although the

research conducted by Harris Interactive would support such a view, there are possible alternative explanations

for the difference: for example, the perception of the BBC in Scotland, socioeconomic factors, or technical

factors such as improvements in the measurement of evasion in 2010. It is the case, however, none of these

explanations is supported by evidence sufficient to enable clear conclusions to be drawn. If this option were to

be considered, more research into the impact of the out-of-court settlement system in Scotland would be

TV Licence Fee Enforcement Review

Deterrence

167. Although the out-of-court settlement system retains the possibility of a criminal prosecution, the

BBC Trust felt that any move away from the scheme of enforcement as it currently operates

would create a perception that the offence was now considered to be ‘less serious’ than was

previously the case and this might lead to an increase in evasion.

180

168. Harris Interactive conducted a piece of behavioural research which explored whether a scheme

similar to the out-of-court settlement scheme in Option 3

181

would have an impact on evasion.

This research predicted that under such a scheme, evasion would rise from the current rate of

5% to 6%. Such an increase would represent £39m in revenue lost to the BBC.

Low income groups

169. A number of consultation respondents saw Option 3 as having the potential to operate unfairly

in respect of those on low incomes. It was felt that an out-of-court settlement penalty was

disproportionately weighted against those in financial difficulty as they would be more likely to

decline the offer of a settlement amount that had to be paid in a single sum and would instead

elect to proceed to the Magistrates' Court.

170. Means-testing would be a possible way of addressing this problem, but this would add a further

layer of complexity and increase the costs of administering the scheme. On the other hand, not

to means-test is likely to have an effect on the rate of acceptance; individuals not able to pay

the settlement amount in a single one-off payment will elect to face a prosecution. It may, of

course, be possible to introduce a scheme of instalment payments (as exists under the current

scheme for court-imposed fines), but this too would add yet another layer of complexity and

increase the cost of administering the scheme.

182

A review by the Home Office concluded that

an out-of-court settlement regime offering a range of payment schemes could not be operated

efficiently.

183

helpful. Sources - BBC evidence to the Review; ‘TV licence evasion in Scotland’, May 2015; BBC Trust review

of TV licence collection, 2009. This is also discussed in Annex B.

180

BBC Trust evidence to the Review.

181

The Harris Interactive research paper on behavioural changes did not explore specifically an out-of-court

settlement, but the ‘hybrid’ model is similar enough that we can use it as a proxy. In the Harris hybrid model,

first-time offenders receive a monetary penalty while multiple offenders are prosecuted through the criminal

courts. This bears a similarity to an out-of-court settlement scheme, wherein offenders who refuse or are not

offered an out-of-court settlement would be prosecuted through the Magistrates’ Court as under the current

process.

182

The out-of-court settlement system in Scotland does allow for payment of the settlement amount to be made

by instalments, however, these must be made within 28 days (Crown Office and Procurator Fiscal Service

evidence to Review). The DVLA scheme does not offer any flexibility in payment as, in the event of default, this

would create potential difficulties in enforcement.

183

Ministry of Justice evidence to the Review.

TV Licence Fee Enforcement Review

171. The Voice of the Listener and Viewer argued that the inability to make payments by way of

instalments was a significant disadvantage as “it might make the payment of fines less

sustainable for those who are less well off.”

184

172. Christians Against Poverty

185

felt that while overall an out-of-court settlement scheme

represented an improvement on the current regime involving the payment of court fines in

England and Wales, it had the disadvantage that “a person’s means are not assessed with an

out-of-court settlement, so those on low income would be particularly impacted by this

system.”

186

Christians Against Poverty also felt this option was weighted unfairly against some

vulnerable people, and noted that “If a person...fails to understand how to react to the

demands, they will still end up in the Magistrates’ Court. Therefore, this system is

still...complex and disproportionate.”

187

It was also suggested that a maximum 28 days in which

to make payment did not provide sufficient flexibility for those on low incomes, who would be

forced to default to the Magistrates' Court system where they might receive a lower, means-

tested fine.

Burden of proof

173. An additional point raised in the course of the Review is fairness to those who are accused of

evasion. Christians Against Poverty argued that ‘there may be lower evidence requirements

for out-of-court penalties to be issued, meaning that more mistakes will be made,

adversely impacting those who have not evaded.

188

However, as any out-of-court settlement

scheme would operate using the evidential and public interest test, as in the current system,

this concern, while well-motivated, does not appear to raise any significant practical difficulty.

Practical considerations: Crown Dependencies

174. There are a number of considerations to be taken into account concerning the practical

applicability of the out-of-court settlement system to the Crown Dependencies of Jersey and

Guernsey. Whilst there is no equivalent to the Procurator Fiscal in England and Wales, there is

a process similar to the out-of-court settlement in operation in Jersey. The out-of-court

settlement closely resembles the Parish Hall inquiry where there is a power vested in the

Centenier

189

to levy a fine summarily. Whilst the power to levy a fiscal fine is not currently

available for TV Licensing offences, it would be possible to achieve this through an Order in

Council and to do so would be “entirely consistent with existing Jersey legal structures and the

jurisdiction of the Centeniers.”

190

184

Voice of the Listener and Viewer consultation response.

185

A debt counselling charity.

186

Christians Against Poverty consultation response.

187

Christians Against Poverty consultation response.

188

Christians Against Poverty consultation response.

189

A Centenier is a senior member of the Honorary Police of Jersey. In addition to general policing matters, the

Centenier in Jersey remains the only officer entitled to charge and bail offenders. The Centenier presides at

Parish Hall Enquiries and acts as prosecuting officer before the Magistrates’ Court.

190

Government of Jersey consultation response.

TV Licence Fee Enforcement Review

175. There are no legal barriers to implementing such a scheme in the Bailiwick of Guernsey,

however the Government of Guernsey felt that the decision on whether to permit an out-of-court

settlement in any case, and any discretion as to the quantum of penalty, would have to be

exercised locally rather than by TV Licensing or UK officials.

Current prosecution policy

176. The BBC argued that as, under the current system of enforcement, prosecutions for first-time

offenders are often discontinued, an out-of-court settlement system might actually remove an

opportunity for individuals to avoid a monetary penalty. The Ministry of Justice also made the

point that TV Licensing already discontinues a number of prosecutions where the evader

purchases a licence.

“TV Licensing currently has the ability to accept the purchase of a TV licence whenever it

identifies a person who has evaded paying the TV licence fee. It is the experience of the

Magistrates' Courts that it is rare for the [sic] TV Licensing to proceed with a prosecution

where a TV licence is subsequently purchased.

191

The majority of the 13% of prosecutions

that are not found guilty will be where a TV Licence is purchased after proceedings have been

initiated.”

- Ministry of Justice consultation response

177. It is the case, however, as we have noted above,

192

that these opportunities are neither widely

publicised nor generally known.

Key considerations

178. When judged against the key considerations set out in the Terms of Reference the weight of

the evidence available to the Review suggests that the introduction of the out-of-court

settlement scheme would involve significant investment and operational costs which would fall

to the taxpayer and the licence fee payer. It also carries the risk of an increase in licence evasion

with a corresponding loss of revenue. While such a scheme could provide a proportionate

response to the problem of licence evasion simply in terms of penalty, there are practical

difficulties arising from the implementation and operation of such a scheme, and these

difficulties would outweigh any potential advantages.

Conclusion

179. In Scotland the out-of-court settlement system administered by the Procurator Fiscal is available

for a range of offences. A number of consultation respondents were in favour of Option 3 as

they felt it would offer better value for money for the taxpayer and provide an additional

191

This policy generally applies only to first-time offenders.

192

See discussion of Options 1 and 2.

TV Licence Fee Enforcement Review

opportunity for individuals to avoid prosecution.

193

Despite these arguments, the evidence we

have examined makes clear that the current system already offers a number of opportunities

for evaders to avoid prosecution and it has been made clear that the primary concern of TV

Licensing is not to prosecute, but to encourage compliance with the law. Putting an out-of-court

settlement system in place would, to a certain extent, formalise existing arrangements, but with

significant practical ramifications. The principal risk is that it will add complexity to the

enforcement regime and impose a significant cost burden on the licence fee payer and taxpayer.

There is also a possibility that the introduction of an out-of-court settlement scheme would not

significantly reduce the burden on the courts; evaders may choose not to pay the penalty, in

which case a prosecution would follow. It is also the case that an out-of-court settlement scheme

is less likely to be attractive to those on low incomes. Accordingly, we have concluded that

Option 3 would not provide a viable mechanism for the efficient and fair disposal of TV licence

evasion cases.

193

For example the Voice of the Listener and Viewer consultation response and Andrew Bridgen MP evidence

to the Review.

TV Licence Fee Enforcement Review

3d. OPTION 4

Fixed monetary penalty: retain the criminal offence, with an option for disposal by

way of a fixed monetary penalty.

180. Option 4 would retain TV licence evasion as a criminal offence, while allowing a fixed monetary

penalty to be imposed as a formal alternative to prosecution. This option is similar to Option 3

in that the rationale for each is that they are intended to provide a swift and effective out-of-

court disposal, thus reducing the burden on the courts. However, unlike Option 3, Option 4

involves the possibility of an out-of-court disposal by way of a fixed monetary penalty in every

case of evasion. Under Option 4, a penalty notice (or a notice of an intention to impose a fixed

penalty) would be issued by the authorised enforcement agency (TV Licensing) at the point at

which an offence is committed, for example, at the time a TV Licensing enquiry officer witnesses

an offence on the occasion of a household visit. In the event of default of payment the fixed

penalty notice would be enforced without resort to prosecution or, as an alternative, the case

would proceed to the Magistrates’ Court in the usual way.

194

181. There are a number of offences for which fixed penalty notices are available and a sample of

the offences together with the amount of the fixed penalty appear in the following table:

Offence

Offence creating provision

Amount

Disorderly behaviour

Public Order Act 1986, section 5

£80

Drunk and disorderly

Criminal Justice Act 1967, section 91

£80

Sale of alcohol to drunk person on

relevant premises (not including

off-licences)

Licensing Act 2003, section 141

£80

Sale of alcohol to persons under

18 (staff only, licensees should be

subject to a summons)

Licensing Act 2003, section 146

£80

Brakes, steering or tyres defect

Road Traffic Act 1988, section 41A

£60

Driving other than in accordance

with licence

Road Traffic Act 1988, section 87(1)

£60

Failing to comply with traffic sign

Road Traffic Act 1988, section 36

£60

Failing to supply details of driver’s

Road Traffic Act 1988, section 172

£120

194

Under a number of existing fixed penalty notice schemes if the penalty is not paid then, after a specified

time, a fine is registered in an amount in excess of the original fixed penalty. In other schemes the fixed penalty

is subject to a right to dispute guilt in court.

TV Licence Fee Enforcement Review

identity

No test certificate

Road Traffic Act 1988, section 47

£30

Pelican/ zebra crossing

contravention

Road Traffic Regulation Act 1984, section

25(5)

£60

Railway fare evasion (where

penalty notice scheme in

operation by train operator)

Railways (Penalty Fares) Regulations 1994

£20 or twice

the full single

fare to next

stop,

whichever is

greater

Seat belt offences

Road Traffic Act 1988, section 14

£30

Speeding

Road Traffic Regulation Act 1984, section

89(1)

£60

182. In recent years the use of fixed monetary penalties has become increasingly common and the

Regulatory Enforcement and Sanctions Act 2008 provides that a Minister of the Crown may by

order confer on a regulator (as defined in the Act) the power by notice to impose a fixed

monetary penalty on a person in relation to a relevant offence (also defined in the Act).

195

The

Act also provides that the power may only be conferred in relation to a case where the offence

is capable of being proved beyond reasonable doubt.

196

183. According to Ministry of Justice guidance, the aim of a penalty notice is to offer a “quick and

effective alternative disposal option for dealing with low-level… offending. To deliver a swift and

simple method of deterrence… to reduce the amount of time…attending court, while

simultaneously reducing the burden on the courts.”

197

Overview

184. As in the case of Option 3, Option 4 appears at first sight an attractive alternative to the current

system of criminal prosecution. There are, however, a number of potential problems. First, there

is the issue of an increased risk of evasion. The proportion of individuals who elect to pay the

penalty amount in full and thus avoid prosecution is crucial to the success of a fixed penalty

scheme. If the proportion is high this can lead to a saving in court time and costs; if the proportion

is low the process will simply add an additional layer of complexity and bureaucracy to the

process of enforcement and operational costs may increase. This means that the amount of the

penalty would have to be fixed at a level so as to encourage acceptance while at the same time

providing a disincentive to evasion. As is the case with Option 3, this would suggest a figure

195

Regulatory Enforcement and Sanctions Act 2008, section 36.

196

Regulatory Enforcement and Sanctions Act 2008, section 39.

197

Ministry of Justice Penalty Notice for Disorder Guidance, 2014, p1.

TV Licence Fee Enforcement Review

somewhere between the current cost of a colour licence (£145.50) and the average level of fine

(£170). Such a figure may not provide an attractive alternative option when the amount has to

be paid in full within a limited period, but setting a figure lower than £145.50 runs the risk of

increasing evasion with a corresponding loss of revenue.

185. There is also the problem of administrative complexity. Under the scheme provided by the

Regulatory Enforcement and Sanctions Act 2008, the regulator/prosecutor must first serve a

notice of an intention to impose a fixed penalty. This notice of intent offers the individual an

opportunity to discharge liability for the fixed monetary penalty by payment of a prescribed sum

(which must be less than or equal to the amount of the penalty). If the individual does not

discharge his or her liability, he or she may make representations in relation to the proposed

imposition of the fixed monetary penalty. The regulator must, at the end of the period for making

representations and objections, decide whether to impose the penalty. Where the regulator

decides to impose such a penalty, the individual on whom it is imposed may appeal against the

decision to impose it. The appeal lies either to the First-Tier Tribunal or another tribunal created

under an enactment. Where the fixed monetary penalty is not discharged, it remains possible

for criminal proceedings to be instituted for the offence.

198

186. As is apparent, the creation of a scheme for fixed monetary penalties for TV licence fee evasion

may involve significant investment cost (at least in the short term) with no guarantee that it

would be effective or reduce to any significant extent the involvement of the courts. There will

also be costs involved in the process of enforcement. Another significant objection to the fixed

monetary penalty scheme is that it would take time to implement, by which time the basis of

licence fee collection may have changed as a result of the forthcoming Charter Review. For

these reasons, the Review does not recommend the implementation of Option 4.

187. In the paragraphs that follow we discuss the merits or otherwise of implementing Option 4

having regard to the evidence available to the Review and the key considerations contained in

the Terms of Reference.

Value for money

188. Under Option 4, value for money to the taxpayer lies in the fact that cases would be diverted

from the Magistrates’ Court, thus reducing the burden on the criminal justice system. The fixed

monetary penalty notice (or a notice of intention to issue a fixed monetary penalty notice) would

be issued at the time of the commission of the offence and, if the penalty is accepted, no further

investigation or prosecution would be necessary. Those wishing to contest liability would be

entitled to challenge the notice or decline to pay the amount, in which case the question of

liability would have to be determined, either by adjudication or prosecution. Andrew Bridgen MP

198

In some fixed penalty notice schemes if the penalty is not paid then, after a specified time, a fine is

registered at an amount significantly in excess of the original penalty and enforcement of the amount due can

then take place.

TV Licence Fee Enforcement Review

expressed the view that this system would be more efficient than the current system of

enforcement.

199

189. The introduction of a fixed penalty notice scheme for TV licence evasion is likely to be costly for

the BBC as it would need to invest in the scheme and administer its operation. This would add

to the financial burden on the licence fee payer. It is possible that the long-term savings would

eventually cover the costs of the system, but this is dependent on the success of the scheme.

It also depends on the current licence fee collection model remaining in place over the long

term.

190. The BBC has stated that it would expect its collection costs to be higher using this model than

under the current system and noted that it is not clear that enforcement costs would be

recoverable through the fixed penalty process.

200

191. As in the case of Option 3, the Ministry of Justice agreed that there could be a cost saving by

using a system of fixed penalties, but argued that the saving would be limited (on the basis that

the existing system is efficient and does not involve a significant cost burden to the taxpayer).

Significantly, the Ministry of Justice believes the cost saving would only accrue if evasion

remained at the current level, while anything more than a minimal increase in the rates of

evasion would offset the savings in costs.

201

Set against the fact that cases would be diverted

from the Magistrates’ Court, the court would no longer receive fine revenue and the amount

recovered by TV Licensing through settlements would depend on a number of factors (uptake

of the fixed penalty, recovery of the penalty and level of the fixed penalty). Each of these factors

is addressed below.

Uptake of the fixed penalty

192. Any financial benefit to the taxpayer would be achieved only by diverting a significant number

of offenders from the Magistrates’ Court. If the diversion were ineffective, that is if only a small

number of individuals elected to pay the fixed penalty, the process would add additional cost

and complexity to the process of enforcement with no corresponding benefit. Similarly, if the

evasion level increased and more cases were investigated and prosecuted, the cost to the

taxpayer and licence fee payer would increase. The Voice of the Listener and Viewer

202

argued

that this option risks adding an additional layer of bureaucracy and complexity to the existing

sanctions regime.

199

Andrew Bridgen MP evidence to the Review.

200

BBC consultation response.

201

Ministry of Justice evidence-gathering session.

202

Voice of the Listener and Viewer consultation response.

TV Licence Fee Enforcement Review

Recovery of the fixed penalty

193. As in the case of Option 3, the recovery rate of the fixed penalty would be an important factor

in the efficient operation of the scheme. Any significant level of default could possibly mean that

enforcement would have to take place, as it does at present, through the Magistrates’ Court.

194. On the basis of the information provided to the Review it cannot be said that moving to a fixed

penalty scheme would necessarily lead to an improvement in the collection rate of penalties,

and there is a risk of reduction in the overall revenue to the taxpayer should the rate of collection

remain static, or if the level of the penalty is set at a level lower than the current average fine.

203

Level of the fixed penalty

195. As with Option 3, the level of the penalty would need to be set at a figure high enough to deter

evasion and cover the running costs of the scheme. At the same time the amount would have

to be reasonable enough to encourage acceptance of the penalty.

204

As the average fine is

currently £170

205

it would have to be lower than this but higher than the level of the current

colour licence fee at £145.50.

206

196. The current penalty tiers in other fixed penalty schemes are generally in the range of £60-£90

and a sum of this magnitude is unlikely to provide an adequate deterrent when set against the

cost of a TV licence. While a higher figure could be set for TV licence offences, this would

involve a fixed monetary penalty considerably higher than those available in most other

comparable schemes.

Deterrence

197. Under the fixed penalty system, while the criminal deterrent remains in place the risk exists that

it will be undermined, although the extent of this risk is linked to the level of the fixed penalty.

Some respondents to the Review were of the opinion that Option 4 retained the deterrent value

of a criminal sanction, given the possibility of instituting a prosecution and in such a scheme

any unpaid penalties would be enforced through the Magistrates’ Court (in the same way as an

unpaid fine).

207

198. Some respondents felt that a lower penalty would impact on public perception of the

seriousness of the offence and may therefore encourage greater evasion. Research conducted

203

Ministry of Justice consultation response: 92% of Fixed Penalty Notices for driving offences were paid in

2012. 51% of all Penalty Notices for Disorder were paid in 2013 with a further 30% registered as fines.

204

Ministry of Justice evidence to the Review. Also supported by Ministry of Justice consultation response.

205

Ministry of Justice consultation response (2013 figures).

206

Ministry of Justice evidence-gathering session: the Ministry of Justice suggested that there is a risk of higher

levels of evasion if the penalty amount were to be set at a figure less than the licence fee.

207

Voice of the Listener and Viewer consultation response.

TV Licence Fee Enforcement Review

by Harris Interactive which explored whether a scheme similar to that of Option 4

208

would have

an impact on evasion, concluded that evasion could rise from the current rate of 5% to 6%. This

potential increase would cost the BBC an extra £39m in lost revenue.

199. The BBC Trust felt that any move away from the scheme of enforcement as it currently operates

would create a perception that the offence is considered to be ‘less serious’ than was previously

the case and this might lead to an increase in evasion.

209

Additional concerns

200. Some of those who participated in the Review raised additional concerns in relation to the

adoption of Option 4. These issues concerned the possibility of TV Licensing issuing notices

without proper consideration, and fairness to vulnerable individuals.

201. Andrew Bridgen MP and the Centre for Citizenship expressed concerns that TV Licensing might

be tempted to issue penalty notices more freely, or on an inadequate evidential basis, thus

increasing “the possibility that an individual might elect to pay the fixed penalty rather than face

the trouble, expense and embarrassment of a court appearance.”

210

The BBC also expressed

the view that the adoption of Option 4 might ultimately result in more enforcement activity.

202. Both the Ministry of Justice and the Centre for Citizenship raised concerns that the adoption of

this option might lead to a perception on the part of the public that the BBC was using the legal

system as a means of raising revenue (particularly if the number of cases increased).

211

By way

of analogy, the use of parking charge notices has led to some Local Authorities being accused

of profiteering, and it was suggested that the BBC and TV Licensing might be exposed to

damaging allegations of this or a similar nature.

203. One particular difficulty identified with Option 4 is that the fixed monetary penalty has the

potential to impact unfairly on those on lower incomes. The initial penalty is a fixed amount

which cannot be means-tested and the issuer has no discretion in the level of notice

imposed. This is not the case with the existing procedures where the Magistrates’ Court

will take into consideration a range of factors, including ability to pay, when setting the

level of any fine.

212

The fixed penalty system is designed to produce single, one-off payments,

with the result that those on low incomes may not be in a position to avoid prosecution.

208

The Harris Interactive research paper on behavioural changes did not explore specifically a fixed penalty

scheme, but the ‘hybrid’ model is similar enough that we can use it as a proxy. In the Harris hybrid model, first-

time offenders receive a monetary penalty, while multiple offenders are prosecuted through the criminal courts.

This bears a similarity to a fixed monetary penalty scheme, wherein offenders who do not pay the fixed

monetary penalty would be prosecuted through the Magistrates’ Court as under the current process.

209

BBC Trust evidence to the Review.

210

Centre for Citizenship consultation response.

211

Centre for Citizenship consultation response.

212

Ministry of Justice consultation response.

TV Licence Fee Enforcement Review

204. A number of respondents to the consultation highlighted this as a concern

213

and some felt that

any penalty should be set at a level not to disadvantage those on low incomes

214

there would

otherwise be an incentive to elect prosecution with a view to being sentenced by way of a

means-tested fine.

215

Some members of the public who responded to the consultation felt that

any potential saving in court time was outweighed by the potential impact upon those on low

incomes.

216

For example, Christians Against Poverty felt that this option failed to provide those

in financial difficulty with appropriate assistance, particularly as the penalty would need to be

paid in full within 28 days. The Money Advice Trust response to the consultation highlighted

concerns that this type of system would have a negative impact on those who are unable to

pay.

217

Implementation

205. The implementation of Option 4 would require significant investment. In addition to the

involvement of the BBC, it is likely that Her Majesty’s Courts and Tribunals Service (HMCTS)

would have to process the fixed penalty notices. HMCTS currently processes fixed penalty

notices in four operational units across England and Wales, with 73 full-time (equivalent) staff.

This fields 980,000 compliant (80-85%) notices per year, paying £95m into the Consolidated

Fund.

218

Whilst this is a large scale operation, there is a question of capacity if TV licence fee

offences were to be dealt with through a fixed penalty scheme. In addition the administrative

system for recording fixed penalty notices would require new IT systems with all that entails for

additional set-up costs.

219

TV Licensing enquiry officers would need to be trained in the

operation of the system as they would be required to explain the process and its implications

and carry out the necessary identity checks.

220

Practical considerations: Crown Dependencies

206. In the States of Jersey there is no equivalent of the Regulatory Enforcement and Sanctions Act

2008, and to implement a fixed monetary penalty scheme solely for the purpose of dealing with

the TV licensing offence would require domestic legislation.

221

213

For example, consultation responses of TV Licence Resistance and the Voice of the Listener and Viewer.

214

TV Licence Resistance consultation response.

215

Ministry of Justice evidence-gathering session.

216

Under the Penalty Notice for Disorder scheme, the Ministry of Justice Penalty Notice for Disorder Guidance

(2014) provides that a fixed penalty may not be appropriate where an officer ‘believes the person presents a

considerable risk of not paying the penalty.’ This illustrates the dilemma and the problem of devising a scheme

that operates fairly to all groups.

217

Money Advice Trust consultation response.

218

HMCTS evidence submitted to the Review.

219

Ministry of Justice evidence to the Review.

220

Ministry of Justice Penalty Notice for Disorder Guidance, 2014.

221

Government of Jersey evidence to the Review.

TV Licence Fee Enforcement Review

207. In the case of the Bailiwick of Guernsey, the option could be implemented by way of local

legislation, but, as the Guernsey authorities made clear, such a penalty would be administered

by and be payable to the Guernsey authorities, not to the Consolidated Fund.

222

Key considerations

208. When judged against the key considerations set out in the Terms of Reference, the

implementation of Option 4 would involve significant operational and investment costs which

would have to be borne by the taxpayer and the licence fee payer. It also carries the risk of

increased evasion. Whilst the use of a fixed penalty notice might otherwise be regarded as a

proportionate response to the problem of licence evasion, it would add an additional layer of

complexity to the enforcement regime and any advantages that might accrue from its

implementation are outweighed by the problems identified above.

Conclusion

209. As in the case of Option 3, Option 4 proceeds on the basis that it would be highly desirable to

divert TV licence fee evaders from the criminal justice system. The difficulty lies in implementing

a scheme that is both fair to all and efficient.

210. On the basis of the evidence available to the Review, the implementation of a fixed penalty

scheme is unlikely to bring any significant improvement to the current system of prosecution

and may in fact create a number of significant practical difficulties.

211. For the reasons set out above and taking into account the key considerations set out in the

Review’s Terms of Reference, the introduction of a fixed penalty scheme would not provide an

effective solution to the problem of TV licence fee evasion. In addition, there is a risk that the

implementation of a fixed penalty scheme would become outdated as a result of any changes

made to the licence fee collection model, following the forthcoming Charter Review.

222

Government of Guernsey evidence to the Review.

TV Licence Fee Enforcement Review

3e. OPTION 5

Civil monetary penalty: decriminalise and enforce via a civil infraction.

212. Option 5 involves the repeal of the TV licence evasion offence, the creation of a statutory

obligation to have a TV licence and enforcement of this obligation through the imposition of a

civil monetary penalty.

213. A civil monetary penalty is neither a fine nor a criminal conviction: it is instead a penalty for

failing to comply with a statutory obligation.

214. Civil monetary penalties are currently levied in the case of parking, congestion charging and

bus lane contravention. By way of example, Local Authorities are vested with the power to issue

monetary penalties (known as penalty charge notices) to individuals who contravene parking

regulations. Following receipt of the notice, individuals have 28 days in which to pay the amount

claimed, but may receive a reduction for early payment (usually if payment is made within 14

days).

223

215. Under Option 5, if the penalty remained unpaid it would be treated as a civil debt. An individual

would have the opportunity to make an informal challenge to the notice and if unsuccessful, the

individual would have a right of appeal and it is envisaged that this appeal would be to an

independent adjudicator. Enforcement of the penalty would take place in the civil court system

and thus would involve conventional methods of enforcement, such as the employment of

bailiffs, seizure of property, and the use of attachment of earnings and charging orders.

Overview

216. The attraction of the civil monetary penalty is that it would involve the decriminalisation of licence

fee evasion and the removal of all TV licence fee evasion cases from the criminal courts. The

problems associated with Option 5 arise from the radical nature of the change from criminal to

civil enforcement. The principal difficulties are threefold. First, the possible risk of increased

evasion (as a result of the removal of the criminal deterrent); second, the investment costs

involved in establishing a system of civil enforcement; and third, the operational costs involved

in recovering what are likely to be small or even nominal amounts of debt. During the course of

the Review concerns were also expressed about the possible impact on low income

households. The BBC argued that, as TV Licensing would be responsible for the process of

enforcement, this might bring about a change in the relationship between the BBC and the

public.

223

Traffic Management Act 2004; Civil Enforcement of Parking Contraventions (England) General Regulations

2007.

TV Licence Fee Enforcement Review

217. In addition to the difficulties identified by contributors to the Review, the mechanism for

collecting the licence fee may be altered as a result of the forthcoming Charter Review, and

such a scheme might well become outdated even before it has had time to prove its worth.

218. Of all the options, Options 5 and 6 had the least support from those who contributed to the

Review and we have concluded that decriminalisation is not a viable alternative to the current

system of enforcement, at least under the current system of licence fee collection.

219. In the paragraphs that follow we discuss the merits or otherwise of implementing Option 5

having regard to the evidence available to the Review and the key considerations contained in

the Terms of Reference.

Discussion

220. There was little support for this option among those who contributed to the Review, although

John Whittingdale MP and Andrew Bridgen MP drew our attention to the fact that there is

support within Parliament for a civil enforcement regime. Furthermore, they pointed out that the

Deregulation Act 2015 provides that no change to the current system is to be implemented

before April 2017,

224

and this would provide sufficient time for an orderly implementation to take

place.

221. The principal attraction of Option 5 is that it would remove all TV licence fee evasion cases from

the criminal justice system. As noted above, the use of imprisonment as the ultimate sanction

for non-payment of a fine (originating from failure to hold a TV licence) is seen by many as a

failing of the present system, so the move to a civil system of enforcement was seen by some

consultation respondents as a positive step. A statutory obligation to pay the licence fee coupled

with a system of debt recovery was felt by some members of the public to be a more

proportionate response to the problem of licence fee evasion. As licence fee evasion would be

removed from the court system, resort to court proceedings would only be necessary in the

event of non-payment. Set against this, the County Court would assume responsibility for

dealing with claims for recovery of the debt and TV Licensing would be required to assume

responsibility for enforcement. The Ministry of Justice, in its evidence to the Review, stated that

in each calendar year, the County Court manages over a million similar types of money claim

(a claim for a fixed amount of money) and has in place efficient systems for dealing with multiple

applications of claims of a similar nature.

222. TV Licence Resistance argued in its consultation response that if “done correctly”, there could

be some merit to the implementation of Option 5, “especially if the reform takes account of the

issues with obtaining evidence of evasion, and imposes upon the BBC an independent appeals

body (which could also help address the issue of non-accountability)”.

225

TV Licence Resistance

also felt that, under the current system, the threat of court appearances and criminal offence is

224

Deregulation Act 2015, section 78 (ii).

225

TV Licence Resistance consultation response.

TV Licence Fee Enforcement Review

“exploited” by the BBC, and a benefit of this option would be to remove “opportunities for threat

and misinformation.”

226

223. Treating the licence fee as a civil debt would provide some savings to the taxpayer, who would

not be required to meet the costs of the civil proceedings. On the other hand, the cost to the

licence fee payer is likely to increase significantly, for reasons explained below.

224. Criticism of Option 5 came from a number of respondents who noted that the removal of criminal

sanctions would not necessarily be an improvement. The BBC argued that enforcement

mechanisms would include the use of debt collection agencies and the use of bailiffs (whereas

in the current system the use of bailiffs appears to be rare and their use is controlled by the

court

227

228

The Money Advice Trust echoed these concerns and contended that this model

represented “the worst of both worlds.”

229

The Voice of the Listener and Viewer argued that the

civil enforcement system could be seen as “more punitive than the current system which leaves

an offender with neither a centrally-recorded criminal offence [sic] nor a reduced ability to borrow

money.”

225. Several contributors to the Review argued that the move to a civil system would be complex

and costly. It would require legislation and would require TV Licensing to change its operational

practices to a very considerable extent.

226. There are also some practical implementation issues for the Crown Dependencies. The

Government of Jersey noted that an independent appeals body would need to be established

for cases within Jersey.

230

The Government of Guernsey also expressed reservations about the

practicality of this option because it would require the establishment of an appeals body within

each of the constituent parts of the Bailiwick (i.e. Alderney, Sark and Guernsey).

231

227. It was also argued that the use of a civil process could “result in much larger numbers of

households and businesses being penalised for licence fee evasion.”

232

233

226

TV Licence Resistance consultation response.

227

Ministry of Justice Freedom of Information Request, Outstanding Court Fines for HMCTS

https://www.justice.gov.uk/downloads/information-access-rights/foi-disclosure-log/courts-tribunals/outstanding-

court-fines.doc.

228

BBC consultation response.

229

Money Advice Trust consultation response.

230

Government of Jersey evidence to the Review.

231

Government of Guernsey evidence to the Review.

232

BBC consultation response.

233

Both the BBC and TV Licence Resistance raised concerns about the fact that this is a lower threshold, and

could lead to an increase in the number of evasion cases: for example, those who have let their licence expire

and are delaying a renewal could reasonably be assessed as still requiring a licence on the balance of

probabilities, whereas under the current system there would be an investigation and assessment before

prosecution (which would involve opportunities to buy a licence to avoid prosecution).

TV Licence Fee Enforcement Review

228. Other respondents raised concerns about the potential negative impacts on an individual’s

credit rating. For example, the BBC Trust suggested that this could be a very damaging

consequence for some people which could have lasting repercussions for their financial

security. Set against this, Callcredit

234

argued that the scheme might actually help to prevent

individuals from falling into debt.

235

Deterrence

229. A consistent theme expressed in the course of the Review was that a civil enforcement system

would be likely to have a reduced deterrent effect (compared to the current system of

enforcement) and that this would have a detrimental effect on compliance with the obligation to

hold a TV licence. The risk of an increased level of evasion under a civil model was emphasised

in an expert consultation response

236

and the research commissioned by the BBC suggests that

the existence of a criminal offence is in itself a strong factor in deterring evasion (with 54%

purchasing a licence ‘because it’s the law’ or ‘it’s illegal not to’).

237

The same research

suggested that evasion rates would increase significantly under a civil model as they are less

effective at making people pay.

238

230. Several of those who contributed to the Review cited the experience of licence fee

decriminalisation in Japan, where evasion rates rose to 25% (though it is to be noted that this

coincided with a number of high profile scandals at the public service broadcaster, which may

also have contributed to the scale of evasion).

239

231. The issue of deterrence is also linked to the scale of any civil penalty. It would have to be set at

a level high enough to deter evasion, while at the same time low enough to encourage

acceptance at an early stage of the enforcement process. The Harris Interactive behavioural

research study found that at all levels of monetary penalty tested - including £500,

approximately 3 times the current average fine - evasion remained higher under a civil model

than under the current model (5%), although the difference is more pronounced and grows more

rapidly at lower levels, suggesting that under a civil penalty model the level of penalty would

have to increase in order to keep evasion at a similar rate to current levels.

240

This could have

an unfair impact on those on low incomes and state benefits.

234

Callcredit Information Group, a consumer data group comprising a number of companies including

Callcredit, a UK credit reference agency.

235

Callcredit consultation response.

236

Patrick Barwise consultation response; Mr Barwise is a leading figure in marketing and consumer

representation, and contributed to one of the Review’s evidence-gathering sessions.

237

Harris Interactive Behavioural Research, BBC consultation response.

238

Harris Interactive Behavioural Research.

239

This was also discussed in the Culture, Media and Sport Select Committee’s 2015 ‘Future of the BBC’

report: http://www.publications.parliament.uk/pa/cm201415/cmselect/cmcumeds/315/315.pdf.

240

The Harris Interactive study is reviewed in more detail at Annex E.

TV Licence Fee Enforcement Review

232. The BBC estimates a doubling in the financial impact of evasion under a civil enforcement

regime, from the current level of around £213m to £409m.

241

The BBC Executive, in the course

of its evidence to the Review, raised concerns that the likely increased evasion rate and

subsequent costs meant that “a civil model could lead to a sense of unfairness amongst licence

fee payers”,

242

a view echoed by a respected academic.

243

The Producers’ Alliance for Cinema

and Television (PACT)

244

agreed that increased costs to the BBC under this model would have

a negative impact on the BBC’s ability to invest in programme content, and would therefore

represent worse value for money for licence fee payers.

245

233. The Scottish Courts and Tribunals Service voiced concerns over the administrative costs that

this option would impose, estimating that bringing small claims to courts in place of their existing

fiscal fine system would result in a 44% increase in the number of small claims representing

additional court and judicial staff costs of £211,000 annually.

246

234. This system would also require the establishment of an independent appeals body, the set-up

and administration costs of which would be passed on to the taxpayer or licence fee payer.

235. The Government of Guernsey suggested that legal fees incurred by TV Licensing in pursuing

cases within the Bailiwick courts would vastly outweigh the likely amounts recovered.

Low income households

236. A number of consultation responses raised concerns about the impact that implementation of

Option 5 might have on low income households. It was argued that while it would be possible

to discount the amount payable in return for early settlement, immediate payment even of the

discounted amount may not be feasible for certain members of the community.

237. The organisation Christians Against Poverty was critical of the possible impact on those who

struggle with debts and the limited amount of time within which to make a payment. It was felt

that this could result in escalating debts and that the “regime would still penalise those on low

income [sic] and in financial difficulty, and would not include the flexibility needed to show

adequate forbearance and sensitivity.”

247

Comparison with utility bills

238. A number of respondents to the Review questioned the comparison between non-payment of

utility bills and non-payment of the licence fee. While it is correct that non-payment of utility bills

241

This figure is based on behavioural research commissioned from Harris Interactive, which forecasts that

under a civil model evasion would rise to 9%. (Harris Interactive Behavioural Research).

242

BBC consultation response.

243

Patrick Barwise consultation response.

244

PACT, a trade association representing independent UK television and film companies.

245

PACT consultation response.

246

Scottish Courts and Tribunals Service consultation response.

247

Christians Against Poverty consultation response.

TV Licence Fee Enforcement Review

such as gas, electricity and water is treated as a civil debt, unlike these utilities, TV Licensing is

not able to install a pre-payment meter or disconnect a non-payer’s supply and so would not

have a ‘final option’ with which to encourage payment before resorting to enforcement activities.

Conditional access technology

239. During the course of the Review, we explored whether the use of conditional access technology

could go some way to reducing the risks of evasion if a civil system were to be introduced.

However, Lord Grade informed us that conditional access technology is not sufficiently

advanced to make this feasible and it will be some years before suitable equipment is developed

to enable broadcasters to control access to their programmes in a suitable manner.

Enforcement difficulties

240. The Ministry of Justice suggested that this type of civil penalty arrangement was not ideally

suited to TV licence fee enforcement. This arises because of the difficulty of establishing

evasion (which would be necessary to prove the existence of the debt), particularly if TV

Licensing did not have those powers of investigation (such as the availability of search warrants)

available under the current regime.

Other concerns

241. The BBC raised concerns about a potential conflict of interest in its operations, in that it would

be responsible for collecting evidence, deciding on whether to apply a penalty, and pursuing

the civil action.

248

While this would be balanced by the creation of an independent adjudicator

to manage appeals, it nevertheless represents a significant increase in TV Licensing’s role and

responsibilities.

242. The BBC Trust shared concerns that where the penalty was not paid it would have to be pursued

through the civil courts as a civil debt, and this would require the BBC to initiate proceedings

and pursue them through to enforcement. There is a concern that this would alter the BBC’s

relationship with the public and be damaging to its image and reputation.

243. The Ministry of Justice and the Centre for Citizenship raised concerns that this system could

lead to a perception that the BBC was using the legal system as a means to raise revenues

(particularly if the number of cases increased).

249

By way of analogy, the use of parking charge

notices has led to some Local Authorities being accused of profiteering, and it would be

undesirable to expose the BBC and TV Licensing to allegations of this or a similar nature.

244. The principal objections to the adoption of Option 5 were the costs of establishing a new system

of civil enforcement, the costs involved in collecting the debt and the risk that the level of evasion

would increase. Concerns over the costs of a civil option were expressed during evidence

248

BBC consultation response.

249

Centre for Citizenship consultation response.

TV Licence Fee Enforcement Review

sessions by the Ministry of Justice, the BBC Trust and the BBC Executive. In their consultation

response the BBC noted that this model would “increase licence fee evasion and collection

costs, likely significantly, reducing value for money for both licence fee payers and taxpayers.”

The BBC argued that in the event of non-payment the debtor would be pursued by the civil

claimant (the BBC), with the result that the BBC would be liable for all the costs of the

proceedings as well as the costs of enforcement. The BBC (supported by The Voice of the

Listener and Viewer) contended that the collection of civil penalties would be both expensive

and difficult to achieve. Of particular concern was the commercial benefit of pursuing certain

cases, with the result that a certain level of evasion might be tolerated or written off, on the

grounds that enforcement was simply not cost-effective.

250

Key considerations

245. Having regard to the key considerations as set out in the Terms of Reference, and having taken

into account the evidence available to the Review, it is apparent that the implementation of

Option 5 would involve significant investment costs and lead to an increase in operational costs.

These costs would be borne by the licence fee payer and the taxpayer. It would also carry the

risk of a rise in the rate of evasion with a corresponding loss of revenue to the BBC. While a

move to a civil system of enforcement may be desirable in the long term, the implementation of

such a system under the current system of licence fee collection would be neither efficient nor

effective.

Conclusion

246. Option 5 had only limited support from those who contributed to the Review. The evidence we

have examined suggests that the implementation of a civil monetary penalty would not be

feasible under the current system of licence fee collection. Accordingly, we have concluded that

Option 5 would not provide a viable mechanism for the efficient and fair disposal of TV licence

evasion cases.

250

In its consultation response the BBC made reference to fact that the DVLA has written off around one-third

of penalties for non-renewal of vehicle tax because they were too difficult to collect (and of the two thirds that

were pursued, less than half were paid). The DVLA Annual Report and Accounts confirms that in 2010/11 it

collected £31m fine and penalty income (of £49m gross collectable) and wrote off £18m (36.73%).

TV Licence Fee Enforcement Review

3f. OPTION 6

Civil debt: decriminalise and enforce as a civil debt.

247. Option 6 would involve treating the licence fee as a civil debt recoverable through the civil courts.

This is currently the position in the case of non-payment of utility bills, where, as a matter of last

resort, the debtor may be proceeded against in the County Court where, if liability is proved, an

order may be obtained requiring payment of the debt.

Overview

248. The arguments against the implementation of this option were similar to those advanced against

Option 5; the risk of increased evasion and cost. Under a civil system of enforcement, TV

Licensing would bear the burden of costs, including the costs of enforcement, unless and until

they were recovered from the defendant at the conclusion of the civil proceedings.

249. It was also pointed out that the analogy with non-payment of utility bills is not altogether apt: the

TV licence is not a payment for services and if this option were to be implemented it would

require legislation to characterise the licence fee as a civil debt. One of the key difficulties

associated with Option 6 is that TV Licensing would only be able to bring proceedings to recover

the debt attributable to the period of evasion, which would have to be established by satisfactory

proof. The consequence of this is that the amount owing might only be a small or nominal sum

and in many cases it would make no commercial sense to pursue the case to court.

250. In addition to the difficulties identified by contributors to the Review, the mechanism for

collecting the licence fee may be the subject of change following the Charter Review, and such

a scheme might well become outdated even before it has had time to prove its worth.

251. It was for these principal reasons that we made no recommendations in relation to Option 6.

252. In the paragraphs that follow we discuss the merits or otherwise of implementing Option 6

having regard to the evidence available to the Review and the key considerations contained in

the Terms of Reference.

Discussion

253. As in the case of Option 5, there was little support for this option among those who contributed

to the Review, although John Whittingdale MP and Andrew Bridgen MP drew our attention to

the fact that there is support within Parliament for a civil enforcement regime. Furthermore,

they pointed out that the Deregulation Act 2015 provides that no change to the current system

TV Licence Fee Enforcement Review

is to be implemented before April 2017,

251

and this would provide sufficient time for

implementation to take place.

254. A civil system of debt recovery was felt by a number of consultation respondents to be a more

proportionate response to the problem of TV licence evasion and for many individual

respondents the removal of the possibility of imprisonment would be a positive step.

252

255. Christians Against Poverty described Option 6 as “the most appropriate, fair and cost-effective”

option, noting good practice established in the consumer credit industry which could be used to

inform fair collection activity. It was also argued that Option 6 provides “adequate opportunities

for people to dispute the debt or accept their liability and arrange payment before court

action and enforcement agent fees are incurred.” However it was also noted that “if unpaid

licence fees were liable for statutory interest and charges, monetary penalties could

escalate quickly and become unaffordable.”

253

256. Though it had concerns with each of the options, the Money Advice Trust

254

cited this option as

“the least punitive approach” for those struggling to manage their debts wisely, particularly as

County Courts were seen as being well able to deal with debt repayment issues (such as

payment by instalments).

255

The fact that this system might have a negative impact on an

evader’s credit rating was seen by Callcredit as a potentially positive step, as it would help to

protect individuals from getting into debt in the future. Callcredit also suggested that were TV

licence fee payment information to be shared as part of an individual’s credit rating, this could

have the positive benefit of building the credit rating of those “people who currently pay their TV

licences as required, yet find it difficult to secure mainstream and lower cost credit and banking

facilities.”

256

257. It was also argued that the BBC would have more options through which to pursue non-

payment, for example by the use of bailiffs.

258. The Government of Jersey noted that in terms of implementation this would be the least

problematic of the alternative options.

257

251

Deregulation Act 2015, section 78 (ii).

252

As discussed under Option 1, we believe that the current system is more fair and proportionate than it is

perceived to be, and the existence of the criminal is not disproportionate. Nor is the use of imprisonment to

enforce court-imposed fines. Furthermore, non-payment of a number of civil debts (including Council Tax) can

also be enforced by imprisonment.

253

Christians Against Poverty consultation response.

254

A debt advice charity.

255

Money Advice Trust consultation response.

256

Callcredit consultation response, 2015.

257

Government of Jersey evidence to the Review.

TV Licence Fee Enforcement Review

Deterrence

259. Set against these points, it was argued that the process of moving from a criminal to a civil

system of enforcement could create the impression that non-payment of the licence fee is now

regarded as being less important, thus increasing the risk of evasion. The BBC cited research

suggesting that the existence of a criminal offence is in itself a strong factor in deterring evasion

(with 54% purchasing a licence ‘because it’s the law’ or ‘it’s illegal not to’).

258

The same research

suggested that that evasion rates would increase significantly under a civil model.

259

260. The BBC Executive raised concerns that the likely increased evasion rate and subsequent costs

meant that “a civil model could lead to a sense of unfairness amongst licence fee payers”, a

point echoed by one of the experts who contributed to the Review.

260

Costs

261. In addition to the increased risk of evasion, concerns surrounding the costs of moving to a civil

system were expressed by the Ministry of Justice, the BBC Trust and the BBC Executive. In its

consultation response the BBC noted that a civil model would “increase licence fee evasion and

collection costs, likely significantly, reducing value for money for both licence fee payers and

taxpayers.” Concerns were raised by the BBC (echoed by The Voice of the Listener and Viewer)

that the collection of civil debts would be both expensive and difficult to achieve, which could

raise questions about the benefit of pursuing certain cases and put the BBC in a position of

having to write off a certain level of evasion on the grounds that enforcing would not be cost-

effective.

261

PACT warned that the increased costs to the BBC under this model would have a

negative impact on the BBC’s ability to invest in programme content, and would therefore

represent worse value for money for licence fee payers.

262. The Scottish Courts and Tribunals Service voiced concern over the administrative costs that

this option would impose, estimating that bringing small claims to courts in place of their existing

fiscal fine system would result in a 44% increase in the number of small claims and represent

additional court and judicial staff costs of £211,000 annually.

262

263. The Government of Guernsey suggested that legal fees incurred by the BBC in pursuing cases

within the Bailiwick courts would vastly outweigh the amounts likely to be recovered.

258

Harris Interactive Behavioural Research & BBC consultation response.

259

Harris Interactive Behavioural Research.

260

Patrick Barwise consultation response.

261

If evasion were to rise, the financial impact on the BBC would be significant (around £39m for each 1%

increase in evasion) and value for money for the licence fee payer greatly reduced.

262

Scottish Courts and Tribunal Service consultation response.

TV Licence Fee Enforcement Review

Comparison with utility bills

264. A number of respondents to the Review questioned the comparison between non-payment of

utility bills and non-payment of the licence fee. While it is correct that non-payment of utility bills

such as gas, electricity and water is treated as a civil debt, unlike these utilities TV Licensing

does not have the ability to install a pre-payment meter or disconnect a non-payer’s supply and

so would not have a ‘final option’ with which to encourage payment before resorting to

enforcement activities.

Other concerns

265. The BBC Trust suggested that the impact of a civil debt system could be very damaging for

some individuals, with the potential for lasting repercussions on their financial security.

266. It was also suggested that the use of civil proceedings would make the approach to enforcement

less targeted and “result in much larger numbers of households and businesses being penalised

for licence fee evasion.”

263

264

In civil proceedings evasion would only need to be proved on the

“balance of probabilities”, whereas criminal proceedings are brought only where the tests in the

Code for Crown Prosecutors are satisfied and, where a prosecution is brought, the offence must

be proved beyond reasonable doubt.

267. The BBC argued that without the powers of investigation currently available under the criminal

regime (such as the availability of search warrants) the investigation of evasion would become

more difficult. It was also suggested that the BBC’s role in enforcing the debt carries the risk of

damaging the BBC’s relationship with the public.

268. The BBC Trust echoed this concern and argued that by assuming the responsibility of

enforcement from the state the BBC would have to become a different kind of agency, and this

had the potential to damage its relationship with the public, particularly if it were perceived to

be institutionally unsympathetic. The BBC also raised concerns about the potential conflict of

interest that could arise from its responsibilities for collecting evidence, pursuing civil action and

enforcing the debt.

Practical considerations

269. One of the key difficulties inherent in Option 6 is that in order to enforce a civil debt, the BBC

would have to provide evidence of the period of time for which the individual had been

unlicensed, and the amount of the debt would be in a sum corresponding to the period of

evasion. It would be difficult to prove the period of unlicensed use with the result that the amount

of the debt is likely to be small or nominal.

263

BBC consultation response.

264

Both the BBC and TV Licence Resistance raised concerns that this option could lead to an increase in

enforcement activity.

TV Licence Fee Enforcement Review

270. It would of course be possible to legislate for an assumed figure to be the amount recoverable,

as is the case with Vehicle Excise Duty, where liability is backdated to the expiry of the last

excise licence.

265

However, to adopt such a scheme in the case of the TV licence fee would

present real difficulties, particularly as parts of the unlicensed period may have been legally

unlicensed. TV Licence Resistance maintains that “any form of automatic assumption about the

length of time for which a household was unlicensed would be intrinsically unfair either because

TV might not have been watched during some or all of the unlicensed period, or responsibility

for the licence may have changed (possibly informally) during the unlicensed period.”

271. The Ministry of Justice identified this inability to establish the period of evasion to a satisfactory

level of proof as the major issue for pursuing enforcement via a civil debt and felt it would be

unfeasible without using a ‘stand-in’, which would be considered unfair.

266

272. The Government of Jersey noted that there are no private sector bailiffs operating within Jersey,

and that there have been recent difficulties in the enforcement of small debts within their

jurisdiction.

Key considerations

273. Having regard to the key considerations in the Terms of Reference and based on the evidence

available to the Review, the implementation of Option 6 would involve significant operational

costs and investment which would be borne by the licence fee payer and the taxpayer. It would

also carry the risk of a rise in the rate of evasion with a corresponding loss of revenue to the

BBC. While a move to a civil system of enforcement may be desirable in the long term, the

implementation of such a system under the current system of licence fee collection would be

neither efficient nor effective.

Conclusion

274. Option 6 had only limited support from those who contributed to the Review. The evidence we

have examined suggests that the implementation of a scheme of civil debt enforcement would

not be feasible under the current system of licence fee collection. The principal objections arise

from the potential cost, especially the cost to the licence fee payer of the costs of enforcement

and a possible rise in evasion. Accordingly, we have concluded that Option 6 would not provide

a viable mechanism for the efficient and fair disposal of TV licence evasion cases.

265

Vehicle Excise and Registration Act 1994, section 31.

266

Ministry of Justice evidence-gathering session.

TV Licence Fee Enforcement Review

Chapter 4: Other Options for Change

Culture, Media and Sport Committee Recommendations

275. The Culture, Media and Sport Committee (CMS) is a Parliamentary Select Committee which

oversees the work of the Department for Culture, Media and Sport. In February 2015 it published

a report entitled ‘Future of the BBC’. This wide-ranging and detailed report, based on a year-

long evidence-gathering process, contains a helpful discussion of matters relevant to the

forthcoming review of the BBC’s Royal Charter, including the future of the licence fee and

decriminalisation of licence fee evasion.

276. The clear view of the CMS Committee is that the current criminal offence is overdue for reform

and licence evasion should be decriminalised. The CMS Committee acknowledged, however,

that decriminalisation is not feasible under the current model of licence fee collection as it would

carry an increased risk of evasion and possible significant loss of revenue to the BBC. On the

question of reform, the CMS Committee concluded that any change in the enforcement regime

should be tied to reform of the funding mechanism which might involve, for example, a move to

a broadcasting levy or the introduction of controls governing access to television broadcasts.

277. While this Review has reached the same overall conclusion as the CMS Committee, it has done

so for different reasons. The CMS Committee concluded that decriminalisation is necessary in

order to address the unfairness of the current system and that a change in the licence fee

collection model would facilitate this reform. By way of contrast, this Review has concluded that

the current enforcement regime is more fair and proportionate than is generally supposed. The

weight of the evidence provided to the Review also suggests that decriminalisation, which

appears at first sight to be an attractive step, would have significant cost implications to the

licence fee payer and taxpayer, at least in the short term.

278. We agree that if changes are to be made to the method by which the licence fee is collected,

then the balance is likely to tilt in favour of decriminalisation. That said, any reform of the licence

fee collection model is a matter for the Secretary of State to consider in light of the forthcoming

Charter Review and any conclusions reached as a result of that Review.

279. To the extent that some of the issues raised in the CMS Committee report touch upon the

current Review, these are addressed in the following paragraphs.

280. The CMS Committee concluded: “the justification for criminal penalties for non-payment

of the TV licence fee and the way TV licensing enforcement is carried out is anachronistic

and out of proportion with responses to non-payment for other services.”

267

‘Future of the BBC’, Culture, Media and Sport Select Committee 2015, p3:

http://www.publications.parliament.uk/pa/cm201415/cmselect/cmcumeds/315/315.pdf.

TV Licence Fee Enforcement Review

281. This was a view shared by some of those who gave evidence to the Review. However, the

evidence we have received justifies the use of a criminal sanction for licence evasion. As the

CMS Committee appears to have acknowledged, the current system of licence fee collection

requires the existence of a powerful deterrent in the overall public interest. In the case of the

TV licence, there is no mechanism for the removal of broadcasting services from non-payers.

282. These considerations apart, the CMS Committee has provided a powerfully reasoned argument

that the criminal sanction is likely to become unnecessary if reform of the funding model

removed the need for a criminal deterrent.

283. The CMS Committee also acknowledged: “...the possibility, based on the evidence

presented and international experience, that decriminalisation could lead to an increase

in evasion and potentially, therefore, a reduction in the BBC's income.”

268

284. This is also one of the conclusions reached by this Review and the weight of the evidence

supports the concern expressed by the CMS Committee. This Review has also concluded that

the increased costs of implementing and enforcing a civil option would have significant adverse

financial implications for the taxpayer and licence fee payer, and that for these reasons the two

decriminalisation options (Options 5 and 6) are impractical under the current system of licence

fee collection. The removal of powers of investigation currently available to the BBC under the

criminal regime would also make the BBC’s investigatory role more difficult, and the BBC’s role

in enforcing the civil penalty or civil debt would carry the risk of damaging the BBC’s relationship

with the public.

285. The CMS Committee expressed a belief that “there is a strong case for making non-

payment a civil matter pursued through the civil courts in the same way as non-payment

of council tax, parking fines and utility bills.”

269

286. The weight of the evidence provided to the Review supports the Committee’s conclusion that

decriminalisation is not feasible under the current licence fee collection model.

287. The analogy with utility bills has been addressed earlier; the short point is that the enforcement

of amounts owing to utility companies is much simpler than enforcing the requirement to hold a

TV licence, where the period of unlicensed viewing is difficult to establish and there is no ability

to meter or remove the availability of access to television broadcasts.

288. Non-payment of council tax is enforced by the Local Authority applying for a liability order from

the Magistrates' Court. The Local Authority can then seek to recover the debt by reductions

from wages or benefits or by using bailiffs. Imprisonment is also available as a sanction for

non-payment council tax.

270

268

‘Future of the BBC’, Culture, Media and Sport Select Committee 2015, p79, par 224.

269

‘Future of the BBC’, Culture, Media and Sport Select Committee 2015, p122, par 40.

270

Council Tax (Administration and Enforcement) Regulations 1992, part VI.

TV Licence Fee Enforcement Review

289. The BBC’s consultation response noted that non-payment of council tax led to the imprisonment

of 107 people in 2012, whereas for non-payment of a fine relating to TV licence fee the figure

was 51 (which in 2013 had fallen to 32).

271

Additionally, moving to a civil system would involve

increased enforcement costs, which would have to be met by licence fee payers.

290. One of the suggestions made by the CMS Committee was that: “decriminalisation of the

licence fee could be linked to introducing controls for access to television services or

moving to a German-style broadcasting levy.”

272

291. It is apparent that the CMS Committee linked the issue of decriminalisation of licence fee

evasion to other mechanisms that would remove the risk of evasion or make the licence fee

easier to collect. The type of funding model that might eventually be adopted is beyond the

scope of this Review and will fall to be considered in the forthcoming review of the BBC’s Royal

Charter. It is to be noted, however, that a move to a universal broadcasting levy would meet

many of the concerns that currently stand in the way of reform.

Conclusion

292. The CMS Committee conducted a thorough and carefully reasoned review of the future of the

BBC. The Committee and this Review have reached the same overall conclusion:

decriminalisation of licence evasion, while ultimately a desirable aim, is not a feasible option

under the current licence fee system.

271

BBC consultation response. Figures updated using Magistrates' Court volume statistics provided to the

Review by the Ministry of Justice.

272

The German equivalent of the licence fee is a universal broadcasting levy which requires all households to

pay a charge, regardless of whether or how they consume broadcasting services (with some concessions).

TV Licence Fee Enforcement Review

Chapter 5: Conclusions and Next Steps

Conclusion

293. This Review recommends no fundamental change in the sanctions regime under the

current licence fee model. The current regime represents a broadly fair and proportionate

response to the problem of licence fee evasion and provides good value for both the licence fee

payer and taxpayer. Within the constraints of the current licence fee collection system, there is

no practical alternative that will work as efficiently and effectively.

294. There is some scope, however, to improve the current system and these improvements will go

some way to meeting the concerns arising from the operation of the current regime, particularly

in relation to the transparency of the prosecution process and tone of TV Licensing’s

communications.

295. A full list of recommendations can be found in the Executive Summary.

Future Considerations

296. Although the principal recommendation is for the criminal offence to remain as it is, a number

of issues have arisen for consideration during the course of the Review. These issues would

benefit from consideration in the forthcoming review of the BBC’s Royal Charter.

Funding model

297. It has been concluded that the strong deterrent value of the criminal offence is required because

of the structure of the current licence fee funding model. In the event of changes being made to

the model, it would be desirable to reconsider whether the criminal offence remains necessary.

298. It is beyond the scope of this Review to express any views on the shape that an alternative

funding model might take. It does, however, seem reasonable to suggest that future reviews

should give consideration to the complexity of the licensing framework. It should be capable of

being easily understood by the public. Removing the confusion that has built up over the years

through technological advances and an increasing number of regulations would be desirable.

One element in particular that seems overdue for change would be to remove from the licence

any reference to “television”. The licence covers many different aspects of broadcasting and

this should be reflected in how it is styled.

TV Licence Fee Enforcement Review

Recommendation 8:

When considering the structure of licence fee collection as part of the forthcoming

Charter Review, a move towards a simpler system would assist in improving public

understanding of what the licence fee covers.

Non-linear viewing

299. Another issue which falls outside the scope of this Review, but which has an increasing impact

on the viability of the current scheme of licensing, is non-linear viewing.

273

As discussed under

Option 1, non-linear, or non-live, viewing allows an increasing number of people legally to

access television broadcasts without a licence, and places an increasing burden on the licence

fee payer.

Recommendation 9:

The Charter Review should look at non-linear viewing as a matter of urgency.

Consideration should be given to the inclusion of non-linear viewing within the licence

fee framework.

Next Steps

300. This report will be presented to Ministers of the Department for Culture, Media and Sport for

their consideration. The Secretary of State will lay the report before both Houses of Parliament

and it will be presented to the BBC Trust. In accordance with section 77 of the Deregulation Act

2015,

274

the Secretary of State will set out the response and steps to be taken within three

months of the Review being completed.

273

Linear viewing refers to traditional television broadcasting. Non-linear viewing refers to viewing of TV

programmes after they have been broadcast, for example by recording using DVR, or streaming via the internet

using Video on Demand services such as BBC iPlayer.

274

Deregulation Act 2015.

TV Licence Fee Enforcement Review

ANNEX A: TERMS OF REFERENCE – REVIEW OF TV LICENCE FEE ENFORCEMENT

Background

A television licence is required in order to watch all live or nearly-live broadcast television content on

any device in the UK. The BBC is tasked with collection of the licence lee, a function currently

subcontracted to a private company under the brand ‘TV Licensing’. Failure to hold a TV licence when

required is an offence under section 363 of the Communications Act 2003, punishable by a fine of up

to £1000.

1. Objectives

a. To conduct a review into the enforcement regime for failure to have a TV licence, to:

● examine whether the sanctions for contravening this offence are appropriate, fair

and whether the regime represents value for money for licence fee payers and

taxpayers; and

● identify and assess options for amending the current enforcement regime,

including those for decriminalisation of TV Licensing offences, and whether

these options would represent an improvement, based on the key considerations

below (2a-e).

b. To make recommendations to the Government by the end of June 2015

2. Key considerations

In assessing the objectives above (1a –b), the review will consider the following factors:

a. Value for money for licence fee payers and taxpayers in enforcement of the failure to

have a TV licence, including operational, revenue and investment costs of the

enforcement regime to the BBC and to the court system.

b. Fairness for all licence fee payers, and effectiveness in deterring evasion.

c. Proportionality and ease of enforcement.

d. Degree to which the regime is easy to understand by all.

e. Where appropriate, practical considerations for effective transition from the current

regime to a different one.

3. Process

The review should seek evidence from a wide range of stakeholders, including the public, the BBC,

Government stakeholders, the courts, and other interested parties.

4. Output

A report setting out an assessment of the current and proposed enforcement regimes, key findings,

conclusions and any other supporting information to be submitted to the Government by the end

of June 2015. The Secretary of State will lay this report before both Houses of Parliament and it

will be presented to the BBC Trust.

TV Licence Fee Enforcement Review

ANNEX B: COST-BENEFIT ANALYSIS

This document is intended to provide qualitative and quantitative analysis to inform the final report of

the TV Licence Fee Enforcement Review. It is an updated version of Annex B of the consultation

document, which contained a provisional analysis.

This updated cost-benefit analysis contains information, gathered prior to and during the consultation

period, which has helped to inform the Review’s final recommendations.

There remain some costs and benefits which have not been possible to quantify and where this is the

case these are set out in qualitative terms.

Methodology

Basis of analysis

The foundation of the analysis is the process underlying each option, from investigation and

prosecution to outcome. The process for each option has distinctive costs and benefits: by estimating

these at each point we can build a picture of the overall net impact of the options to each affected

group. The groups primarily affected are the Government (of each jurisdiction), the BBC

275

, and the

licence fee evader (the individual). Business licence fee payers are affected but to a much lesser

extent, and therefore for simplicity we have focused our analysis on the individual or household

licence fee payer.

Evasion rate and the number of people prosecuted

A crucial underlying figure for the analysis is the evasion rate and the number of individuals

prosecuted for TV licence evasion. The current rate of evasion in the UK is around 5%.

276

This

equates to approximately £200m of lost income to the BBC, based on the current level of the licence

fee at £145.50.

277

Between 2010 and 2012, the number of individuals prosecuted averaged just over

150,000.

278

For the purpose of this analysis we assume that the evasion rate and the number of

prosecutions will stay constant over time, in the absence of any changes to enforcement.

Each of the alternative options involves changes in the way evaders are investigated, prosecuted or

penalised. Annex E provides a brief review of the literature regarding the relationship between

changes to the formulation of the law and crime rates. It also includes an analysis of the research

produced by Harris Interactive for the BBC. Having carried out quality assurance on the Harris

Interactive research we have used their findings to inform assumptions about how evasion rates

might change under each option.

The Harris Research used discrete choice modelling to estimate the evasion rates for three models –

current, civil, and hybrid. The ‘current’ model was designed to resemble the current system. The ‘civil’

model assumes a flat fine for anyone without a television licence after 4 months, without the

possibility of prosecution in a criminal court. The ‘hybrid’ model maintains the criminal offence, but

assumes that first-time offenders receive a fixed penalty and are not prosecuted, while repeat

offenders are prosecuted and can receive a variable fine up to a maximum of £1000. The model used

275

TV licence fee evasion is dealt with by TV Licensing, a registered brand name of the BBC. We refer to this

as the BBC for simplicity.

276

http://www.tvlicensing.co.uk/cs/media-centre/news/view.app?id=1362435051910.

277

http://www.bbc.co.uk/annualreport/2014/executive/finances/licence_fee.html.

278

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/131128w0001.htm#wa_st_43.

TV Licence Fee Enforcement Review

a baseline evasion rate of 5% (the current rate), so the results of their study should be viewed as

relative to this base.

The research was commissioned before the consultation was published, so the models used in the

research do not align entirely with the options described in the consultation document. Options 1 and

2 do not make significant changes to the current system, so are not expected to result in any

significant change in evasion. Options 3 and 4 do not align perfectly to the hybrid model in the

research, but there are enough similarities between the two options and the hybrid model to allow it to

be used as a proxy for these options.

279

Options 5 and 6 can both be equated to the ‘civil’ model.

Evasion rates under the ‘civil’ model are dependent on the fine level; for Option 5 this is uncertain, so

we have included both a £150 and a £500 penalty in the analysis. Option 6 is assumed to be the

equivalent of a £150 penalty under the civil model.

280

The table below sets out the six Review options alongside their associated Harris research model,

and the estimated potential change in evasion rates.

281

We have also estimated the potential change

in revenue to the BBC as a result of the projected change to evasion rates.

282

Option

Equivalent

Harris Option

Estimated Potential

Change in Evasion

Estimated Impact on Licence

Fee Revenue

1 – Retain the

current system

Criminal

2 – Reform the

current system

n/a

3 - Out-of-court

settlement

Hybrid

1% increase

-£39m

4 - Fixed Monetary

Penalty

Hybrid

1% increase

-£39m

5 – Civil Monetary

Penalty

Civil (£150/£500

fine)

3.9%/0.4% increase

-£156m/-£16m

6 – Civil Debt

Civil with £150

fine

3.9% increase

-£156m

Option 1. Retain the current criminal enforcement system

Under the current system, the case is prosecuted by the BBC (as TV Licensing) after the BBC has

investigated the defendant privately (which attracts its own costs). The case is then heard with other

similar cases in a Magistrates' Court (around 15% of cases are withdrawn

283

), which has a time and

279

More information can be found in the Option 3 and Option 4 sections below.

280

This conclusion is explained in more detail in the Option 6 section below.

281

It should be noted that in the Harris Interactive research and report, the term ‘fine’ is used in a general

sense, and that therefore throughout this document the term ‘fine’ appears in relation to Harris research where it

may in fact refer to another type of penalty, such as a civil debt or out of court settlement.

282

BBC evidence submitted to the Review. Each 1% rise in evasion rate would amount to £39m in lost revenue

for the BBC.

283

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/131128w0001.htm#wa_st_43.

TV Licence Fee Enforcement Review

cost implication for the court. However, despite the large number of cases, they are dealt with

efficiently and take up only 0.3% of court time.

Of the defendants found guilty, around 99.5% are fined.

284

Her Majesty’s Courts and Tribunals

Service (HMCTS) incurs the cost of enforcing the fine, but also collects the fine revenue. Not all fines

are successfully enforced, so although HMCTS will incur enforcement costs for all cases, it receives

fine revenue from only a portion of cases, some of which is paid into the Consolidated Fund.

285

The BBC is able to apply for a refund of its enforcement costs, which are added to the amount the

defendant has to pay (though as these are not always recovered, the BBC does not recover its full

costs). In the BBC consultation response it is noted that the BBC was awarded £13.1m in costs

2012/13, but only received £9.5m: a recovery rate of 73%.

286

It also suggests that the average cost

order made during that period was around £87.

287

As well as costs and the fine, the financial penalty will generally include a victim surcharge (a

minimum of £20) and the recently introduced criminal courts charge

288

of around £150 (for those who

plead guilty; proceeding to trial will incur a higher cost

289

). This cost will be repaid to the court and

(unlike the fine element of the penalty) is not subject to means-testing.

In the consultation document we estimated the average cost of a case to the court system. A key part

of this model was the cost of sitting in a Magistrates’ Court per day, from which we could estimate the

average cost of a case. This model assumed that the time taken to hear a licence fee case in court

would be equivalent to that of the average Magistrates’ Court case. The BBC stated in its consultation

response that this was an over-estimate as the average licence fee evasion case is much faster to

process than the average of all cases, particularly as many licence fee cases are dealt with in bulk

and are uncontested. We have taken this view into account and have produced an amended ‘cost to

the court’ figure. This is based on the consultation response from the Ministry of Justice, which

provides a more robust figure of £28 per case.

The defendant is not required to pay any backdated, outstanding licence fee as part of the punitive

measure, thus the BBC does not recoup lost licence fee revenue.

Costs to the Government

● Court costs: The Ministry of Justice has calculated the average cost of hearing TV licence

fee evasion cases at approximately £28 per case. This is likely to be an over-estimate (as it

includes assessment of some more complex cases) and the cost is likely to fall as a result of

planned efficiencies.

290

To find the cost to the Magistrates' Courts of enforcing fines we used

the total cost of enforcement in a year and the number of cases being enforced to find a per-

284

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/131128w0001.htm#wa_st_43 .

285

The Consolidated Fund is a fund into which all public revenue is paid and which provides the supply for all

public services. The basis of the financial mechanism by which the Consolidated Fund is operated is governed

by the Exchequer and Audit Departments Act 1866 and it is administered by the Treasury.

286

BBC consultation response.

287

£13.1m/150,000=£87.

288

Criminal Courts and Justice Act 2015. The charge will be levied against all offenders convicted of a criminal

offence on or after 13 April 2015.

289

Ministry of Justice consultation response

290

The Ministry of Justice informed us that amendments to the system of summary justice by the Criminal

Justice and Courts Act 2015 are likely to lower the costs of cases including those involving TV licence fee

evasion. The Ministry of Justice also notes that future automation of many of the (currently manual)

administrative processes carried out by the courts will lower the cost of fine enforcement and increase the

amount collected by way of fines.

TV Licence Fee Enforcement Review

case-per-year cost.

291

We then factored in the average time taken to enforce the fine, which

gave an average cost of enforcement per case: £59.

292

Summing the two (cost of a case plus

cost of enforcement) gives the total average cost of a case to the court system of £87. Thus

we estimate that TV licence enforcement costs the court system £13m a year (based on

150,000 cases).

● Imprisonment: in 2013/14 32 individuals were imprisoned for defaulting on fines imposed for

TV licence fee evasion. The average period of committal was approximately 3 weeks, which

the Ministry of Justice has estimated cost Her Majesty’s Prison Service (HMPS) approximately

£22,000, or £100 per prisoner per day.

293

Benefits to the Government

● Fine revenue: 99.5%

294

of those prosecuted are issued a fine. In 2013 the average fine was

£169.37.

295

The revenue from this is shared between the courts and the Government.

However not all of the fine revenue imposed by the courts is fully recovered. As this depends

on a great many factors it is difficult to quantify, but we can use the BBC’s cost recovery rate

(73%) as a proxy. We could therefore estimate £25.3m

296

as the amount of fine revenue

received.

● Criminal courts charge: as this is a new charge it is difficult to say how collection will

operate, but we could estimate this at around £16.4m in revenue.

297

This calculation uses the

BBC’s 73% fine repayment as a proxy in order to provide a quantitative estimate, however as

we do not have any data on the payment rate, this may be an over-estimate as it will be the

last monetary charge collected. Additionally some defendants will opt for a trial and face a

higher charge, but that figure is uncertain so has been excluded for simplicity.

Costs to the BBC

● Investigation and prosecution: the BBC will incur costs for investigation and prosecution,

which vary according to each case. The BBC spends 2.7% of the licence fee on licence

enforcement; in 2013-14, this was £102m.

298

Benefits to the BBC

● Costs awarded: the BBC applies for a refund of its prosecution costs, which is granted by the

court in a portion of cases, but not always recovered. The cost of prosecution to the BBC in

291

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/323112/hmcts-annual-report-

2013-14.PDF

292

Information on the enforcement costs of all Magistrates’ Court fines was provided to the Review by the

Ministry of Justice. Cost of enforcement per year (47.1m) / no. of cases heard (1.2m) * time taken to enforce

(1.5 years) = £59

293

Based on average annual cost per prison place of £25,000, and an average sentence served of 52%.

(3/52*£25,000*52%*32 = £22,000) Ministry of Justice response to the consultation.

294

http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/131128w0001.htm#wa_st_43

295

https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2014

296

(150,000 * 99.5% * £169.37) = £25.3m

297

At £150, with 150,000 cases a year, and assuming again a 73% collection rate, this can be estimated at

£16.4m.

298

http://downloads.bbc.co.uk/annualreport/pdf/2013-14/BBC_Financial_statements_201314.pdf.

TV Licence Fee Enforcement Review

England and Wales is around £120 per case. In 2012/13, it was awarded £13.1m in costs by

the courts (around £87 per case). Of this, it actually received £9.5m: £63 per case.

299

Costs to the individual

● Fine: as noted above, the average fine issued in 2013/14 was £169.37.

● Costs: individuals found guilty can be issued costs on top of the fine amount, including

prosecution costs (~£87), the victim surcharge (~£20) and the new criminal courts charge

(£150). Thus we can estimate court costs of around £247.

● Time: the individual will also face personal costs for attending court, such as travel and loss of

income.

Affected Group

Costs

Benefits

Government

Court costs - £13m per annum (pa)

Imprisonment - £22,000 pa

Fine revenue - £25.3m pa

Criminal courts charge - £16.4m pa

BBC

Investigation and prosecution -

£102m pa

Court costs returned - £9.5m pa

Individual

Fine - £169.37

Court costs (~£247)

Travel and loss of income.

This cost-benefit table will act as the counterfactual against which all of the other options will be

measured. Similar tables for the remaining options will indicate whether the costs and benefits are

higher or lower than this counterfactual (and include any new costs/benefits).

Option 2. Reform of the current system: leave the current offence as it stands, but reform the

current criminal enforcement system

Option 2 would not make substantive changes to the process of enforcement; this option would

involve retaining the current criminal offence while at the same time making improvements to the

system of enforcement so as to address some of the concerns that gave rise to the Review.

The Review makes a number of recommendations which are discussed in the text of the main report.

However, only one of the recommendations has potentially significant cost implications.

Recommendation 6:

TV Licensing should consider increasing the transparency of its prosecution and enforcement policy,

and provide clearer guidance to those at risk of prosecution. This guidance could take the form of a

code detailing the steps that will be taken before prosecution, including the public interest

considerations that will be applied when deciding whether to prosecute. Any such code should be

published and made available to suspected evaders at the earliest possible opportunity in the

enforcement process.

299

BBC consultation response.

TV Licence Fee Enforcement Review

Evidence gathered during the review has demonstrated that there are opportunities to divert evaders

from prosecution throughout the existing enforcement process. The current system affords evaders

more flexibility than is perhaps generally acknowledged. By improving public knowledge of these

opportunities to avoid prosecution, there could potentially be an increase in at least the number of

delayers, and potentially also the number of evaders. Any rise in the evasion rate would be troubling

for the BBC as each additional 1% rise in evasion is estimated to cost the BBC £39m. However, as the

report concludes, given that the threat of prosecution remains, and any deliberate attempt to exploit the

policy would be a factor in favour of prosecution, it seems unlikely that evasion will increase. This is

particularly so given that a policy of encouraging compliance rather than resorting to prosecution is

already in operation, and the only difference is that it will be publicised.

Some of the changes outlined in the other recommendations could also have an impact on the costs

of the BBC, for example any work done to alter the tone and content of it written communications with

households could potentially increase the BBC’s administration and investigation costs. However the

other changes outlined for this option are not substantive enough, and do not affect key variables

(such as method of enforcement) enough to significantly affect the cost-benefit analysis.

Option 3. Out-of-court settlement: retain the criminal offence, with an option for disposal by

way of an out-of-court settlement.

This option would offer evaders the opportunity to avoid prosecution by paying the BBC an agreed

amount as an out-of-court settlement. If the individual decided not to take up the settlement, the case

would be pursued through the Magistrates’ Court in the usual manner.

There is uncertainty over the proportion of individuals likely to accept an out-of-court settlement, and

this would have a significant bearing on the eventual costs. The level of the settlement would need to

be set at a level high enough to deter evasion (that is, higher than the cost of a TV licence) and to

cover the running costs of the scheme, but low enough to encourage individuals to take up the offer.

This would suggest a figure between £145.50 (the current licence fee) and lower than £169.37 (the

current average fine).

However, as a comparative example, in most parking and waiting offence cases the maximum level

of penalty is £60-£90.

300

A figure this low carries the risk of increasing evasion, as it is lower than the

cost of a TV licence.

If the individual chose not to accept the settlement, they would be prosecuted in the Magistrates’

Court as under the current system. Therefore this Option would seem to provide greater value for

money for the taxpayer, as there would be fewer cases proceeding to the Magistrates’ Court for

prosecution. However it is hard to say what percentage of individuals this will be, and comparisons

with similar systems in use are difficult as data is fragmented. Significantly, the Ministry of Justice

believes that although there could be a cost saving by using a system of out-of-court settlement, the

saving would be limited (on the basis that the existing system is efficient and does not impose a

significant burden on the taxpayer in terms of cost) and would depend on evasion remaining at the

current level. It also noted that the court would no longer receive fine revenue and whether or not it

would result in a saving to the taxpayer would depend on a number of factors (the acceptance rate,

enforcement costs and level of the penalty).

301

300

In the case of parking related PCNs, the offence is halved if paid within 14 days.

http://www.theaa.com/motoring_advice/legal-advice/penalty-charge-notice.html.

301

Ministry of Justice evidence-gathering session.

TV Licence Fee Enforcement Review

Another concern raised about an out-of-court settlement scheme is the potential rise in delayed

paying, as any additional unlicensed time is a further loss of revenue for the BBC. The option to agree

an out-of-court settlement before criminal action is taken could provide an incentive for individuals to

delay buying a licence until they are threatened with legal action, particularly if the level of the

settlement was lower than that of the licence fee (as is the case in Scotland).

Scotland

The Scottish Government uses an out-of-court settlement scheme for TV licence evasion. The

average fiscal fine issued for TV licence fee evasion in Scotland is £75

302

, within the £60-£90 band

mentioned above for parking offences, but below the TV licence fee of £145.50. Comparing the

evasion rates in Scotland and the rest of the UK before and after 2008 (when the fiscal fines system

in Scotland was strengthened

303

) provides some indication of the difference in evasion between an

alternative civil penalty method and a criminal method. However, direct comparison will be misleading

as there are fundamental differences between England and Wales and Scotland that will undermine

the value of any comparison.

304

The table below provides the evasion rates in Scotland as compared to the rest of the UK (roUK) from

2005 to 2014, along with a ratio of evasion in Scotland to the rest of the UK. The graph below shows

how evasion has changed over time, and how the relationship between evasion in Scotland and the

rest of the UK has evolved.

Evasion rate (%)

Year

Scotland

Rest of the UK

Ratio S/RoUK

2005

5.10

4.10

1.24

2006

4.90

4.01

1.22

2007

5.30

4.41

1.20

2008

5.50

4.47

1.23

2009

5.90

4.80

1.23

2010

5.90

4.82

1.22

2011

7.10

5.00

1.42

2012

7.80

5.36

1.46

2013

7.30

5.46

1.34

2014

7.30

5.16

1.42

It is important to note that although there was an increase in evasion in Scotland in 2011, this was

also the case for the rest of the UK.

It is not clear why there appears to be a jump in evasion rates in 2011 as there are no obvious

changes to policy which would lead to this. One possible contributing factor, along with a ratio of

302

Evidence provided by the Crown Office and Procurator Fiscal Service (COPFS): in 2013/14, 94% of cases

of TV licence fee evasion in Scotland resulted in a payment of £75 (12603 of the 13431).

303

BBC evidence to the Review: The Criminal Proceedings etc. (Reform) (Scotland) Act 2007 amended the

Criminal Procedure (Scotland) Act 1995 so that an offer of fiscal fine was deemed accepted if the alleged

offender failed to provide notice of refusal within 28 days of the offer. This change in legislation led to an

increase in the number of cases that received a fiscal fine and a reduction in the number of cases that were not

proceeded against. Prior to this an offer of fiscal fine that was not accepted required the Procurator Fiscal to

review the case for prosecution or other measures.

304

This is discussed in more detail in Chapter 3 of the report.

TV Licence Fee Enforcement Review

evasion in Scotland to the rest of the UK. The graph below shows how evasion has changed over

time, and how the relationship between evasion in Scotland and the rest of the UK has evolved is

important to note that although there was

It is important to note that although there was an increase in evasion in Scotland in 2011, this was

also the case for the rest of the UK.

It is not clear why there appears to be a jump in evasion rates in 2011 as there are no obvious

changes to policy which would lead to this. One possible contributing factor could be the UK-wide

census in 2011, which led to a relatively significant re-estimation of population figures and therefore

could impact on any models which draw on population estimates.

Behavioural research and implications for evasion

The Harris Interactive research paper on behavioural changes did not specifically explore an out-of-

court settlement like that in Option 3, but the ‘hybrid’ model in the Harris Interactive research is similar

enough that we can use it as a proxy.

In the hybrid model, first-time offenders receive a monetary penalty while multiple offenders are

prosecuted through the criminal courts. This bears a similarity to an out-of-court settlement scheme,

wherein offenders who refuse or are not offered an out-of-court settlement would be prosecuted

through the Magistrates’ Court as under the current process.

The Harris Interactive hybrid model predicted that evasion would rise from the current rate of 5% to

6%. We therefore estimate that under Option 3 evasion would increase to 6%, costing the BBC an

extra £39m in lost revenue.

Costs to the Government

● Court costs: The out-of-court settlement is designed to remove offenders from the court

system, so the cost to the Government will depend on the number of offenders who accept the

TV Licence Fee Enforcement Review

settlement and therefore do not proceed to prosecution. However as the court system deals

with TV licence fee evasion cases very efficiently, this potentially reduced number of cases

may not have a significant impact in terms of savings to the taxpayer.

● Imprisonment: it is unclear whether this system would lead to an increase or decrease in the

numbers of individuals imprisoned, or the duration of imprisonment, and therefore the total

costs. We have therefore maintained the estimated cost from Option 1 of approximately

£22,000, or £100 per prisoner per day.

Benefits to the Government

● Settlement revenue: the Government would receive the revenue from the settlements

issued. This would be calculated as the level of the penalty multiplied by the number of people

who pay it in order to avoid prosecution. As both these figures are uncertain, we have not

quantified this revenue.

● Criminal courts charge: as cases which are diverted from the Magistrates’ Court will not

incur this charge, the Government would receive less revenue from this charge in accordance

with the number of cases diverted from prosecution.

Costs to the BBC

● Set-up and administration: the BBC would have to invest in the establishment of an out-of-

court settlement scheme and bear the ongoing costs of administration, which may be

significant.

● Evasion: the predicted increase in evasion from 5% to 6% would mean a loss of £39m in

licence fee revenue for the BBC.

● Delayed payment: the number of people delaying purchase of a licence could increase under

this option, which means a further loss of revenue for the BBC for the unlicensed time.

Benefits to the BBC

● Prosecution: the BBC bear the costs of prosecution if the case proceeds through the court

system, as in the current system of enforcement. However we expect that this would be lower

than under the current system as a number of offenders would avoid prosecution by paying a

settlement (though as this number is uncertain, we cannot estimate the cost impact). As with

the current system, the BBC would likely not recover all of its prosecution costs.

● Settlement level: the BBC might benefit from the ability to set the level of the settlement. This

would mean that the BBC were able to raise the level of the settlement in order to cover the

increased costs of running the scheme (or the loss of revenue from increased evasion).

However if it were to rise above the level of the average fine (£169.37) it is unlikely that this

option would be used by defendants, and they would revert to the Magistrates’ Court (and the

costs/benefits outlined in Option 1).

Costs to the individual

● Costs of proceeding to Magistrates’ Court: if the individual was not offered or did not

accept the settlement, the case would proceed to court, with the fine and costs as described in

Option 1.

TV Licence Fee Enforcement Review

Benefits to the individual

● Settlement: if the individual accepted the settlement, this would potentially be lower than the

average fine. As discussed above, it would be sensible to suggest a figure between £145.50

(the current licence fee) and £169.37 (the current average fine).

● Court (and related) costs: those who accept an out-of-court settlement do not attend a

Magistrates’ Court and so do not pay court costs or lose any income.

Affected Group

Costs

Benefits

Government

Court costs – likely lower than £13m

per annum (pa).

Imprisonment – unknown. Assume

£22,000 pa.

Settlement revenue – unknown,

dependent on level and

acceptance rate.

Criminal courts charge -

depends on acceptance rate,

likely lower.

BBC

Administration and set-up costs.

Likely increase in evasion - loss of

£39m licence fee revenue pa.

Potential loss of revenue through

increase in delayed payment.

Prosecution – costs likely

lower as fewer cases in courts.

Court costs returned – unknown

(dependent on the settlement

rate).

Flexibility to set level of

settlement.

Individual

Settlement: unknown, potentially

between £145.50 and £170.

Court costs (if settlement not accepted).

Travel and loss of income (if settlement

not accepted).

Court costs (£0 if settlement

accepted).

Travel and loss of income (£0 if

settlement accepted).

Option 4. Fixed monetary penalty: retain the criminal offence, with an option for disposal by

way of a fixed monetary penalty

Option 4 would retain TV licence evasion as a criminal offence, while allowing a fixed monetary

penalty to be imposed as a formal alternative to prosecution. This option is similar to Option 3 in that

the rationale for each is that they are intended to provide a swift and effective out-of-court disposal,

thus reducing the burden on the courts. However, unlike Option 3, Option 4 involves the possibility of

an out-of-court disposal by way of a fixed monetary penalty in every case of evasion, and the level of

the penalty is fixed.

Under Option 4 a penalty notice (or a notice of an intention to impose a fixed penalty) would be

issued by the authorised enforcement agency (TV Licensing) at the point at which an offence is

committed, for example, at the time a TV Licensing enquiry officer witnesses an offence on the

TV Licence Fee Enforcement Review

occasion of a household visit. In the event of default of payment the fixed penalty notice would be

enforced without resort to prosecution or, as an alternative, the case would proceed to the

Magistrates’ Court in the usual way.

Behavioural research and implications for evasion

The Harris Interactive research paper on behavioural changes did not specifically explore a fixed

monetary penalty scheme like that in Option 4, but the ‘hybrid’ model in the Harris research is similar

enough that we can use it as a proxy.

In the Harris hybrid model, first-time offenders receive a monetary penalty while multiple offenders

are prosecuted through the criminal courts. This bears a similarity to a fixed monetary penalty

scheme, wherein offenders who refuse to pay the fixed monetary penalty would be prosecuted

through the Magistrates’ Court as under the current process.

The Harris hybrid model predicted that evasion would rise from the current rate of 5% to 6%. We

therefore estimate that under Option 4 evasion would increase to 6%, costing the BBC an extra £39m

in lost revenue.

Costs to the Government

● Court costs: the fixed monetary penalty scheme is designed to remove offenders from the

court system, so the cost to the Government will depend on the number of offenders who

accept the penalty and therefore do not proceed to prosecution. However as the court system

deals with TV licence fee evasion cases very efficiently, this potentially reduced number of

cases may not have a significant impact in terms of savings to the taxpayer.

o We can assume that the cost of this system will be the same as the current system:

~£87 per case. However the number of cases taken through the court process will

likely be less than in the current system: data from other civil claims made in this way

(for example a fixed monetary penalty) suggests around 65%

305

of individuals pay the

claim at the first stage. If we use this as a proxy, we can estimate that the full

Magistrates’ Court costs would only apply to the remaining 35%: a total cost of £4.6m.

However the court system takes on the burden of administration costs for the

remaining 65%. As discussed in Chapter 3 of the report, this would require significant

investment.

o Importantly, the behavioural research suggests that this Option would lead to a 1%

increase in evasion, which implies a rise in the number of cases (and subsequently

increased costs to the Government). However it is not possible to estimate this directly

as there are a number of uncertainties around its impact.

● Imprisonment: it is unclear whether this system would lead to an increase or decrease in the

numbers of individuals imprisoned, or the duration of imprisonment, and therefore the total

costs. We have therefore maintained the estimated cost from Option 1 of approximately

£22,000, or £100 per prisoner per day.

305

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/115726/fixed-penalty-notice-

1011-tabs.xls. (2010)

TV Licence Fee Enforcement Review

Benefits to the Government

● Penalty revenue: revenue from the penalty paid into the Consolidated Fund (the

Government’s general bank account). It is uncertain at this stage what the level of the penalty

would be, although, as noted in the main report analysis, it would need to be at a sufficient

level to provide a deterrent.

● Criminal courts charge: this is fairly uncertain, but if we assume that 35% of cases proceed

to court, then we can estimate this as £5.7m.

306

Costs to the BBC

● Set-up and administration: the BBC would have to invest in aspects of establishing the

scheme and administer its operation (for example, training enquiry officers to issue penalties),

which could be significant.

● Enforcement: The BBC has stated that it would expect its collection costs to be higher using

this model than under the current system and noted that it is not clear that enforcement costs

would be recoverable through the fixed penalty process.

● Evasion: the predicted increase in evasion from 5% to 6% would mean a loss of £39m in

licence fee revenue for the BBC.

Benefits to the BBC

● Prosecution: the BBC bear the costs of prosecution if the case proceeds through the court

system, as in the current system of enforcement. However we expect that this would be lower

than under the current system as a number of offenders would avoid prosecution by paying a

settlement (though as this number is uncertain, we cannot estimate the cost impact). As with

the current system, the BBC would likely not recover all of its prosecution costs.

Costs to the individual

● Costs of proceeding to Magistrates’ Court: if the individual refused to pay the penalty, the

case would proceed to court, with the fine and costs as described in Option 1.

Benefits to the individual

● Penalty: if the individual accepted the penalty, this would potentially be lower than the

average fine. As discussed above, it would be sensible to suggest a figure between £145.50

(the current licence fee) and £169.37 (the current average fine).

● Court (and related) costs: those who accept a fixed monetary penalty do not attend a

Magistrates’ Court and so do not pay court costs or lose any income.

306

If we assume that 35% of cases proceed to court, then the Government could receive the £150 charge in

(35% x 150,000) = 52,500 cases, which, with the previously assumed 73% collection rate, totals (£150 x 52,500

x 73%) = £5.7m. Note that the 73% is in relation to BBC fine revenue, so this is only a proxy.

TV Licence Fee Enforcement Review

Affected Group

Costs

Benefits

Government

Court costs – cost of hearing only 35%

of cases potentially reduced from

£13m to £4.6m pa (though could be

higher).

Administration – unknown but

potentially significant costs of

administering the FPN for 65% of cases

Predicted 1% rise in evasion:

unknown additional costs

Imprisonment – unknown. Assume

£22,000 pa

Penalty revenue – unknown,

dependent on level and acceptance

rate.

Criminal courts charge - likely

reduced from £16.4m, potentially

to £5.7m.

BBC

Administration and set-up costs

Enforcement costs – potentially

higher

Likely increase in evasion - loss of

£39m licence fee revenue.

Prosecution costs – potentially

lower as fewer cases in the

Magistrates’ Court.

Individual

Penalty – unknown, potentially between

£145.50 and £170

Court costs (if penalty not accepted).

Travel and loss of income (if penalty not

accepted).

Court costs (£0 if penalty accepted).

Travel and loss of income (£0 if

penalty accepted).

Option 5. Civil monetary penalty: decriminalise and enforce via a civil infraction

Option 5 involves the repeal of the TV licence fee offence, the creation of a statutory obligation to

have a TV licence and enforcement of this obligation through the imposition of a civil monetary

penalty. A civil monetary penalty is neither a fine nor a criminal conviction: it is instead a penalty for

failing to comply with a statutory obligation. The scale of the penalty would be crucial: it would have

to be set at a level high enough to deter evasion, while at the same time low enough to encourage

acceptance at an early stage of the enforcement process. Treating the licence fee as a civil debt

would provide some savings to the taxpayer, who would not be required to meet the costs of the civil

proceedings. On the other hand, the cost to the licence fee payer is likely to increase significantly, for

reasons explained below.

Under Option 5, if the penalty remained unpaid it would be treated as a civil debt. The civil claimant

(the BBC) would be responsible for pursuing the claim, and therefore the BBC would be liable for all

costs, including enforcement of the civil penalty; it can seek to recover its costs, but these come

directly from the individual, not from the courts. The high cost of enforcement means there is an

added risk for the BBC in pursuing the case beyond the first claim stage. The percentage of

TV Licence Fee Enforcement Review

individuals who pay after the first claim is important as it has an impact on the overall costs and

benefits to all parties, but particularly for the BBC.

An individual would have the opportunity to make an informal challenge to the notice and if

unsuccessful, the individual would have a right of appeal and it is envisaged that this appeal would be

to an independent adjudicator. Enforcement of the penalty would take place in the civil court system

and thus would involve conventional methods of enforcement, such as the employment of bailiffs,

seizure of property, and the use of attachment of earnings and charging orders.

The crucial point here is that the BBC would have to make a judgment about whether to continue to

pursue individual cases: as it is responsible for all costs there would be a greater focus on the point at

which the cost of the enforcement process outweighs the benefit (the likelihood of successfully

enforcing the penalty).

There could also be a change in long-term behavioural patterns associated with this option as a result

of increased risk for the BBC and decreased risk for the consumer.

Behavioural research and implications for evasion

The Harris research’s ‘civil’ model is comparable to this option, thus we could use the results from the

Harris research to inform our estimates of any changes in evasion from this option. Crucially, the

research showed that evasion under this model is determined mainly by the fine

307

or penalty level. At

a penalty level of £150 evasion is projected to increase to 8.9%, costing the BBC £156m a year in lost

revenue. With a fine of £500 however, evasion increases only to 5.4% (compared with the 5%

baseline in the model), a loss of £16m revenue. However it should be noted that a £500 penalty is

significantly higher than the current average fine (£170).

Responsibility for licence fee evasion cases would be transferred from the criminal court system to

the civil courts. The civil courts have existing frameworks for dealing with similar types of money

claims, so this could be dealt with efficiently. There will be costs to the BBC for each case, and higher

costs for those where the penalty was not paid and which had to be pursued through the courts as a

civil debt. This cost would be significant as the BBC would need to fund all methods of enforcement of

the debt.

Costs to the Government

● Set-up and administration: there will be a cost associated with either setting up or using an

existing appeals process, which would fall to either the Government or the BBC.

● Criminal court charge: if the offence was decriminalised the criminal courts charge would not

apply, representing an estimated (see above) loss of revenue of £16.4m.

Benefits to the Government

● Criminal court efficiency: removing TV licence fee evasion cases from the Magistrates’

Court would improve efficiency, although to a very minor extent (0.3%) as they are dealt with

very efficiently under the current system.

307

It should be noted that in the Harris Interactive research and report, the term ‘fine’ is used in a general sense

to refer to both criminal and civil monetary penalties. We have chosen to refer to this as a penalty, for

consistency with the report. The current maximum fine is £1000, while the average fine is around £170.

TV Licence Fee Enforcement Review

● Civil court costs: although the civil courts would face greater case numbers, the BBC would

be responsible for the court fees (recoverable from the individual) and the Ministry of Justice

believes that the cost of enforcing civil penalties is fully recovered by HMCTS.

308

Costs to the BBC

● Collection costs: the costs involved in collecting the licence fee are likely to increase.

309

● Set-up and administration: the costs of administering the penalty scheme would likely fall to

the BBC.

● Court costs: in the event of non-payment the BBC is responsible for all costs related to

pursuing the debt, as well as costs of enforcement. Some would be recovered through penalty

revenue and civil debts successfully enforced, but we anticipate that this would be a

significant burden for the BBC.

● Evasion: the Harris model predicts that under a civil model evasion will increase. At a penalty

level of £150 evasion is predicted to increase to 8.9%, which would cost the BBC around

£156m a year in lost revenue. Where the penalty level was £500, evasion was predicted to

increase to 5.4%, which would cost the BBC around £16m a year in lost revenue.

● Cost-benefit ratio: the increased pressure on the BBC raises concerns about the commercial

benefit of pursuing certain cases, with the result that a certain level of evasion might be

tolerated or written off, on the grounds that enforcement is simply not cost-effective.

● Set-up and administration of appeals body: there will be a cost associated with either

setting up or using an existing appeals process, which would fall to either the Government or

the BBC.

Benefits to the BBC

● Penalty revenue: the BBC will receive the revenue from the penalty, however this depends

on the level of the penalty and the number of cases diverted from the courts by the penalty.

● Civil debt repayment: the BBC will also receive the revenue of those cases which it

successfully pursues (including court costs).

Costs to the individual

● Costs of proceeding to civil court: if the individual refused to pay the penalty, the case

would proceed to the civil court, with a potential civil debt and costs to pay.

Benefits to the individual

● Penalty: if the individual accepted the penalty, this would potentially be lower than the civil

debt they would receive if the case moved to a civil court.

● Court (and related) costs: those who accept the penalty do not attend a civil court and so do

not pay court costs or lose any income.

308

Ministry of Justice consultation response.

309

BBC and Ministry of Justice evidence to the Review.

TV Licence Fee Enforcement Review

Affected Group

Costs

Benefits

Government

Criminal courts charge – loss of £16.4m

pa.

Potential cost for set-up/ administration

of appeals body.

Court costs – reduced from

£13m to £0.

Imprisonment – reduced from

£22,000 to £0.

BBC

Collection costs – likely increase

Administration and set-up costs

(scheme and potentially appeals body)

Court costs – likely significant increase

Likely increase in evasion - loss of up to

£156m licence fee revenue pa.

Penalty and civil debt revenue -

unknown

Individual

Penalty – unknown, potentially between

£145.50 and £170

Court costs (if penalty not accepted).

Travel and loss of income (if penalty not

accepted).

Court costs (£0 if penalty

accepted).

Travel and loss of income (£0 if

penalty accepted).

Option 6. Civil debt: decriminalise and enforce as a civil debt

Option 6 would involve treating the licence fee as a civil debt recoverable through the civil courts. This

is currently the position in the case of non-payment of utility bills, where, as a matter of last resort, the

debtor may be proceeded against in the County Court where, if liability is proved, an order may be

obtained requiring payment of the debt. The exact legal structure of this option would have an impact

on the cost-benefit analysis.

310

It is likely that under such an option the BBC would be responsible for pursuing the debt through the

civil courts. In this way it is similar to Option 5 (without the initial civil monetary penalty offer), in that

the burden of cost is mainly with the BBC, and there is an inherent risk of not receiving revenue

should enforcement fail.

This option broadly aligns with the Harris Interactive behavioural research ‘civil’ model, although it is

hard to provide any estimate for the level of civil debt as this would likely involve an assumption as to

the period of unlicensed use.

311

Nevertheless, for the purposes of this analysis we have used £150 as

a suggested model (being the level of the civil penalty in the Harris civil model and broadly similar to

the cost of an annual TV licence). Using that figure we could therefore assume that the rise in evasion

310

For example, if it were treated as a priority debt, the use of imprisonment as an ultimate sanction for non-

payment would still be available.

311

One of the key difficulties inherent in Option 6 is that in order to enforce a civil debt, the BBC would have to

provide evidence of the period of time for which the individual had been unlicensed and the amount of the debt

would be in a sum corresponding to the period of evasion. It would be difficult to prove the period of unlicensed

use with the result that the amount of the debt is likely to be small or nominal.

TV Licence Fee Enforcement Review

observed in the Harris model would apply for Option 6: an increase to 8.9%, which would cost the

BBC an additional £156m in lost revenue per year.

The table below represents the potential costs and benefits under a non-statutory system. If the debt

were treated as a priority debt, there would be other costs associated with sentencing and

imprisonment.

Costs to the Government

● Criminal court charge: if the offence was decriminalised the criminal courts charge would not

apply, representing an estimated (see above) loss of revenue of £16.4m.

Benefits to the Government

● Criminal court efficiency: removing TV licence fee evasion cases from the Magistrates’

Court would improve efficiency, although to a very minor extent (0.3%) as they are dealt with

very efficiently under the current system.

● Civil court costs: although the civil courts would face greater case numbers, the BBC would

be responsible for the court fees (recoverable from the individual) and the Ministry of Justice

believes that the cost of enforcing civil penalties is fully recovered by HMCTS.

312

Costs to the BBC

● Collection costs: the costs involved in collecting the licence fee are likely to increase.

313

● Court costs: the BBC would be responsible for all costs related to pursuing the debt, as well

as costs of enforcement. Some would be recovered through penalty revenue and civil debts

successfully enforced, but we anticipate that this would be a significant burden for the BBC.

● Evasion: the Harris model predicts that under a civil model evasion will increase, at a penalty

level of £150 evasion is predicted to increase to 8.9%, which would cost the BBC around

£156m a year in lost revenue.

● Cost-benefit ratio: the increased pressure on the BBC raises concerns about the commercial

benefit of pursuing certain cases, with the result that a certain level of evasion might be

tolerated or written off, on the grounds that enforcement is simply not cost-effective.

Benefits to the BBC

● Penalty revenue: the BBC will receive the revenue from the penalty, however this depends

on the level of the penalty and the number of cases diverted from the courts by the penalty.

● Civil debt repayment: the BBC will also receive the revenue of those cases which it

successfully pursues (including court costs).

312

Ministry of Justice consultation response.

313

BBC and Ministry of Justice evidence to the Review.

TV Licence Fee Enforcement Review

Costs to the individual

● Costs of proceeding to civil court: if the individual refused to pay the penalty, the case

would proceed to the civil court, with a potential civil debt and costs to pay. This figure is

unknown.

Benefits to the individual

● Court (and related) costs: those who accept the penalty do not attend a civil court and so do

not pay court costs or lose any income.

Affected Group

Costs

Benefits

Government

Criminal courts charge – loss of £16.4m pa.

Court costs – reduced from

£13m to £0.

Imprisonment – reduced from

£22,000 to £0.

BBC

Collection costs – likely increase

Administration and set-up costs

Court costs – likely significant increase

Likely increase in evasion - loss of up to

£156m licence fee revenue pa.

Penalty and civil debt revenue

- unknown

Individual

Penalty – unknown

Court costs (if penalty not accepted).

Travel and loss of income (if penalty not

accepted).

Court costs (£0 if penalty

accepted).

Travel and loss of income (£0

if penalty accepted).

Risks and Assumptions

In calculating the costs and benefits, we have (for the purposes of simplicity) not accounted for wider

factors which we believe would have a negligible impact (for example, inflation, population growth,

technological change). We have also assumed that a number of variables (such as court

administration costs and wages) will remain constant.

The analysis was informed by data from England and Wales, and has not gone into detail on the

jurisdictional differences in the devolved administrations and Crown Dependencies (with the

exception of the Scottish out-of-court settlement system discussed in Option 3), in order to focus the

analysis and make comparison between the options more clear. Further details on the jurisdictional

differences in enforcement can be found at Annex C, and relevant evidence is discussed in Chapter 3

of the report.

TV Licence Fee Enforcement Review

100

This analysis relies in part on the behavioural research study carried out by Harris Interactive, which

informed a portion of the cost-benefit analysis for most options. This research was commissioned by

the BBC, however, as we explain in Annex E, the Review team scrutinised the work and carried out

quality assurance, concluding that the research a reliable source.

TV Licence Fee Enforcement Review

101

ANNEX C: JURISDICTIONAL DIFFERENCES

England &

Wales

Scotland

Northern

Ireland

Jersey

Guernsey

Isle of Man

Investigat

ing

authority

TV Licensing

who pass

information

to Procurator

Fiscal who

decides

whether or

not to

prosecute.

TV Licensing

pass

information

onto police

who conduct

their own

investigation.

TV Licensing

pass cases

to an

Inspector in

the

Guernsey

prosecution

unit.

Evidence

reviewed by

law officers.

TV Licensing

Prosecuti

authority

TV Licensing

Procurator

Fiscal

TV Licensing

Centenier

Police and

law officers

The Manx

Advocate

Relevant

Legislatio

Communicati

ons Act 2003

Communicati

ons Act 2003

Communicati

ons Act 2003

Broadcasting

Communicati

ons (Jersey)

Order 2004

Communicati

ons

(Bailiwick of

Guernsey)

Order 2004

Communicati

ons (Isle of

Man) Order

2003

Maximum

fine level

£1000

£500

£2000

£1000

Case

heard

by?

Magistrates

court

Sheriffs

Court

District judge

Magistrates

court

Magistrates

Court

Magistrates

Court

Can the

BBC

recover

costs?

Yes

Can the

offence

disposed

of outside

of court?

Yes

TV Licence Fee Enforcement Review

102

ANNEX D: SUMMARY OF THE LEGAL FRAMEWORK

TV Licensing (England and Wales)

1. The statutory framework for the licensing of TV reception is set out in Part 4 of the

Communications Act 2003. Section 363 of this Part provides as follows:

Section 363 Licence required for use of TV receiver

(1) A television receiver must not be installed or used unless the installation and use of the

receiver is authorised by a licence under this Part.

(2) A person who installs or uses a television receiver in contravention of subsection (1) is

guilty of an offence.

(3) A person with a television receiver in his possession or under his control who—

(a) intends to install or use it in contravention of subsection (1), or

(b) knows, or has reasonable grounds for believing, that another person intends to

install or use it in contravention of that subsection, is guilty of an offence.

(4) A person guilty of an offence under this section shall be liable, on summary conviction, to

a fine not exceeding level 3 on the standard scale.

(5) Subsection (1) is not contravened by anything done in the course of the business of a

dealer in television receivers solely for one or more of the following purposes—

(a) installing a television receiver on delivery;

(b) demonstrating, testing or repairing a television receiver.

(6) The Secretary of State may by regulations exempt from the requirement of a licence under

subsection (1) the installation or use of television receivers—

(a) of such descriptions,

(b) by such persons,

regulations.

(7) Regulations under subsection (6) may make any exemption for which such regulations

provide subject to compliance with such conditions as may be specified in the regulations.

2. A television receiver must not be installed or used unless the installation and use of the receiver

is authorised by a licence under Part 4 (a ‘TV Licence’).

314

The definition of a television receiver

is set out in the Communication (Television Licensing) Regulations 2004

315

and means any

apparatus installed or used for the purpose of receiving (whether by means of wireless

telegraphy or otherwise) any television programme service, whether or not it is installed or used

for any other purpose.

314

Section 363(1) of the Communications Act 2003.

315

S.I. 2004/692 (as amended by S.I. 2005/606, S.I. 2006/619, S.I. 2007/718, S.I. 2008/643 and S.I. 2009/505

an S.I. 2010/640).

TV Licence Fee Enforcement Review

103

3. References to using a television receiver are references to using it to receive television

programmes.

316

The reference to receiving a television programme service includes a reference

to receiving by any means any programme included in that service, where that programme is

received at the same time (or virtually the same time) as it is received by members of the public

by virtue of its being broadcast or distributed as part of that service.

317

4. This means a person needs to be authorised by a TV licence to watch or record TV as it is being

broadcast or otherwise distributed. This includes the use of devices such as a computer, laptop,

mobile phone or digital/personal video recorder.

5. TV licences are issued by the BBC.

318

A person to whom a TV licence is issued is liable to pay

a sum as provided for in the 2004 Regulations (the ‘TV licence fee’).

319

The current fee for a

‘colour’ licence is £145.50.

320

The 2004 Regulations also set out the entitlement for concessions

and payment by instalments. The TV licence fee must be paid to the BBC and is recoverable

by them. The sums received by the BBC must be paid into the Consolidated Fund.

321

6. A person who installs or uses a television receiver without the installation or use being

authorised by a TV licence is guilty of an offence. A person found guilty of an offence is liable

to a fine not exceeding level 3 on the standard scale (£1000). The offence is dealt with by the

Magistrates’ Court.

322

Enforcement

7. ‘TV Licensing’ is a trademark of the BBC and is used under licence by companies contracted

by the BBC to administer the collection of the TV licence fee and enforcement of the TV

Licensing system. Capita Business Services Ltd is contracted in relation to the administration

and enforcement of the TV licence fee. The BBC retains overall responsibility.

8. The investigation into whether a person has committed a TV Licensing offence is carried out by

TV Licensing. Enquiry officers do not need any specific legal powers to carry out their

investigation: in particular, they do not have any police powers. They do however comply with

a code of conduct, visiting guidelines and, when conducting interviews, have regard to the

Police and Criminal Evidence Act 1984 (PACE) Codes of Practice. That is, enquiry officers will

give a caution to person concerned - if there are grounds to suspect an offence has been

committed before interviewing a suspect enquiry officers will caution the person concerned by

informing them that they do not have to say anything, but it may harm their defence if they do

316

Section 368(3).

317

Regulation 9 of the Communication (Television Licensing) Regulations 2004.

318

Section 364.

319

Section 365.

320

Schedule 1 to the 2004 Regulations.

321

Section 365. The BBC receives grant in aid from DCMS equal to the revenue from the TV licence fee (less

the department’s expenses in administering the licensing system - see clause 75 of the BBC Framework

Agreement of 30 June 2006).

322

Section 363.

TV Licence Fee Enforcement Review

104

not mention when questioned something which they later rely on in court and that anything they

do say may be given in evidence.

9. A court may grant a warrant to enter and search a premises if the court is satisfied that there

are reasonable grounds for believing that an offence under section 363 of the Communications

Act 2003 is being committed and that evidence of the commission of the offence is likely to be

on the premises. This is subject to one of the following conditions being met: (a) there is no

person entitled to grant entry to the premises with whom it is practicable to communicate; (b)

there is no person entitled to grant access to the evidence with whom it is practicable to

communicate; (c) entry to the premises will not be granted unless a warrant is produced; or (d)

the purpose of the search may be frustrated or seriously prejudiced unless the search is carried

out by a person who secures entry immediately upon arriving at the premises. The person is

authorised to examine or test any television received found on the premises.

323

10. The person authorised

324

to enter and search the premises may (if necessary) use such force

as may be reasonable to do so. TV Licensing’s policy is not to use force and to exercise search

warrants in the presence of police officers whenever possible. Police officers may force entry if

they deem it necessary.

11. A person who intentionally obstructs a person in the exercise of any power granted by a warrant

is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale

325

Prosecution

12. Prosecutions are brought by TV Licensing (a private prosecution). In deciding whether or not to

bring a prosecution TV Licensing adopt the approach in the Code for Crown Prosecutors:

326

Licensing must be satisfied that there is sufficient evidence to provide a realistic prospect of

conviction (the evidential test); and, where the evidential test is satisfied, TV Licensing must go

on to consider whether a prosecution is required in the public interest (the public interest test).

Sentencing

13. A Magistrates’ Court must have regard to the Magistrates’ Court Sentencing Guidelines

327

when

assessing the fine to be imposed when a person has been convicted of a TV Licensing

offence.

328

The amount of the fine must reflect the seriousness of the offence and the court must

take into account the financial circumstances of the offender; this applies whether it has the

effect of increasing or reducing the fine. Normally a fine should be of an amount that is capable

323

Section 366.

324

Only a person so authorised by the BBC or Ofcom can exercise the warrant power (s.366(5) of the

Communications Act 2003)

325

As a result of s.85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 being commenced

on 12 March, level 5 fines are now ‘unlimited’.

326

https://www.cps.gov.uk/publications/code_for_crown_prosecutors/codetest.html

327

https://www.sentencingcouncil.org.uk/wp-content/uploads/MCSG_web_-_October_2014.pdf

328

Section 125 of the Coroners and Justice Act 2009.

TV Licence Fee Enforcement Review

105

of being paid within 12 months. The aim is for the fine to have an equal impact on offenders

with different financial circumstances; it should be a hardship but should not force the offender

below a reasonable ‘subsistence’ level.

14. The court will identify an appropriate starting point. For example, the starting point for up to six

months unlicensed use is a Band A fine (50% of relevant weekly income with a range of 25%

to 75% of relevant weekly income) and over 6 months of unlicensed use a Band B fine (100%

of relevant weekly income with a range of 25% to 125%).

15. The court will consider other aggravating factors (e.g. previous convictions) and mitigating

factors. In particular, the following factors indicate lower culpability: accidental oversight or belief

licence held, confusion of responsibility, licence immediately obtained. The court will consider

offender mitigation (e.g. genuine remorse, cooperation) and a reduction for a guilty plea.

16. The court will decide the sentence and give reasons.

Enforcement of a fine

17. The procedure for the enforcement of fines is set out in sections 75 to 91 of the Magistrates’

Court Act 1980 and the Courts Act 2003. The enforcement of fines is complex, so what follows

can be considered to be a summary of the general process.

18. A court may allow time for payment of a fine or payment by instalments instead of requiring

immediate payment. The court will make a collection order with the details about how the fine

should be paid. If a person fails to pay the fine (or instalment) in the time allowed by the court,

the court can issue a summons or warrant for the person to appear before the court in order to

conduct a means inquiry to investigate the person’s ability to pay.

19. As a result of the information received at the means inquiry the court has a number of options:

the court may grant further time to pay the fine; change the instalment plan; remit some or all of

the fine having regard to any change in the person’s circumstances since conviction.

20. The court may only order imprisonment following such a means inquiry if it is satisfied that the

failure to pay the fine is due to wilful refusal or culpable neglect. ‘Wilful refusal’ means a

deliberate defiance of the court order and ‘culpable neglect’ means a reckless disregard of the

court order. This must be established beyond reasonable doubt.

21. The court must have also considered or tried all other methods of enforcing payment (e.g.

money payment supervision order, application for deduction from benefit, attachment of

earnings order) and concluded that they are inappropriate or unsuccessful. The warrant of

commitment (i.e. imprisonment) must state the grounds on which the court was satisfied that it

was undesirable or impracticable to use the other methods of enforcement.

TV Licence Fee Enforcement Review

106

Consequences of a conviction

22. The offence of installing or using a television receiver without a TV licence (section 363 of the

Communications Act 2030) is not a recordable offence.

329

A conviction of this offence is unlikely

to be recorded on the Police National Computer unless it was dealt with at the same time as a

recordable offence.

23. A person is therefore not required to disclose such a conviction if asked to disclose convictions

for recordable offences in any job or other application (e.g. insurance). A person is required to

disclose such a conviction if asked to disclose all criminal convictions unless the conviction is

spent.

330

The rehabilitation period (i.e. the period after which the conviction is spent) for a

conviction sentenced with a fine is 12 months from the date of conviction.

331

329

National Police Records (Recordable Offences) Regulations 2000.

330

There are exceptions - spent convictions must be disclosed in relation to particularly sensitive areas such as

work with children and vulnerable adults, work in law enforcement and the legal system.

331

Section 5 of the Rehabilitation of Offenders Act 1975 (as amended).

TV Licence Fee Enforcement Review

107

ANNEX E: ANALYSIS OF KEY EVIDENCE

Literature Review

1. There is no pre-existing evidence which is directly comparable to the issue of decriminalisation

of TV licence evasion, however there is some literature which provides evidence on the

relationship between law formulation and other crime rates, or crime rates in general. An

internal review of this literature

332

suggests that the formulation of the law itself does not have

a deterrent effect in itself. Rather, it suggests that it is the methods of enforcement, and

likelihood of being caught, that have discernible deterrent effects.

2. These findings would suggest that the biggest behavioural changes seen after any law change

would be due to changes in enforcement and detection. For example, the act of changing an

offence from a criminal offence to a civil infraction would not change the behaviour of individuals

(i.e. the likelihood of evasion) in itself, but the related changes to collection and enforcement

would have an impact on behaviour.

3. A short summary of each of the individual studies reviewed is outlined in the table below.

Study reference

Key finding

Robinson, Paul, "Does Criminal

Law Deter? A Behavioral

Science Investigation" Faculty

Scholarship. Paper 31. (2004).

http://scholarship.law.upenn.ed

u/faculty_scholarship/31

This study concludes that changes in the formulation of the law

have no deterrent effect; rather it is other factors, such as the

method of enforcement, likelihood of conviction etc. that affects

crime rates.

Schwartz, Barry “The Effect in

Philadelphia of PA’s Increased

Penalties for Rape and

Attempted Rape”, Journal of

Criminal Law, Criminology &

Political Science 59, 509

(1968)

The study suggests that the imposition of stronger penalties had

no effect on rates of rape in 1960s Philadelphia.

Lappi-Seppala, Tapio “The Fall

of the Prison Population”,

Journal of Scandinavian

Studies in Criminology and

Crime Prevention 27 (2000)

This study concludes that a raft of decriminalisation in Finland in

the 1950s, designed to reduce the prison population, had no

effect on crime rates.

Ross, H. Lawrence “Law,

Science, and Accidents”,

Journey of Legal Studies 1

(1973)

This study, based on the strengthening of penalties for drink-

driving, suggests that the reason for the drop in crime rates was

not the change to the penalty but the increased police presence

on roads. This effect was also observed in another study by

Ross, of French driving laws in 1978.

332

Please note this was not a systematic review, so it is possible that some relevant evidence was not

identified.

TV Licence Fee Enforcement Review

108

Andenaes, Johannes “The

Scandinavian Experience” in

Laurence, Michael D., Snortum,

John R., and Zimring, Franklin

E. (eds), Social Control of the

Drinking Driver (1988) 43.

This study notes that drink-driving rates in Finland fell after a

decriminalisation of the offence, thanks to an increase in

detection efforts. In other words, reducing the penalty did not

increase crime rates because more effort was made to prevent

the crime in the first place.

Hood, Roger “Capital

Punishment” Pp. 739-776 in

The Handbook of Crime and

Punishment, ed. by Michael

Tonry. New York: Oxford

University Press

The author finds no econometric evidence that capital

punishment has a deterrent effect on crime.

Steven D Levitt “Why do

Increased Arrest Rates Appear

to Reduce Crime: Deterrence,

Incapacitation, or Measurement

Error?” 36 Economic Inquiry

353 (1998)

Levitt finds that arrest rates have a discernible effect on

deterrence. He also criticises the methodology of a number of

studies that do find a relationship between law formulation and

deterrence.

von Hirsch, Andreas, Bottoms,

Anthony E., Burney, Elizabeth

and, Wikstrom. P.O. (1999)

Criminal Deterrence and

Sentencing Severity The

Institute of Criminology at the

University of Cambridge

The studies reviewed in this paper do not provide a basis for

inferring that increasing the severity of sentences generally is

capable of enhancing deterrent effects. In addition, in reviewing

macro-level studies that examine offence rates of a specific

population, the researchers find that an increased likelihood

(certainty) of apprehension and punishment is associated with

declining crime rates.

Cameron, Samuel. “The

Economics of Crime

Deterrence: A Survey of Theory

and Evidence.” Kyklos, 41(2),

301-23, 1988

This paper examines why the empirical evidence had (then)

been unable to confirm the hypothesised link between certainty

and severity of punishment, and crime rates, suggesting that

other areas of research could provide the supporting evidence.

Witte, Anne. “Estimating the

Economic Model of Crime with

Individual Data.” Quarterly

Journal of Economics, 57-84,

February 1980.

Witte found success in this paper where others before did not –

testing the economic model of crime. A significant relationship

was found in the data between punishment and crime rates.

Trumbull, William. “Estimations

of the Economic Model of Crime

using Aggregate and Individual

Level Data.” Southern

Economic Journal, 423-39,

October 1989.

This paper examines the empirical evidence and concludes that

deterrence is the most important factor in explaining the

relationship between crime and arrest rates.

TV Licence Fee Enforcement Review

109

Behavioural research on licence fee enforcement, Harris Interactive

Given the lack of directly comparable pre-existing evidence, we deemed it important to consider a study

conducted by Harris Interactive in late 2014 which examined views and stated behaviour around licence

fee enforcement.

333

The study used a 25 minute online survey, supplemented by face-to-face hall tests

and interviews, to gather the views of 2,692 adults (aged 16-74) across the UK who require and are

responsible for paying a TV licence. This sample included many licence fee payers (‘payers’) as well

as 207 people who evaded paying their licence fee (‘evaders’) and 615 who purposely delayed paying

(‘delayers’).

The study explored:

● Reasons for paying, delaying or evading paying TV licences.

● Views on the most effectiveness of deterrents, particularly (for payers and delayers) which are

perceived to be the most effective for making others pay

● Views on different enforcement models: criminal (the current model), civil, and a ‘hybrid’ model

(involving a civil penalty for first-time offenders and a criminal penalty for repeat offenders),

including various options within each model, using discrete choice modelling. Participants were

presented with 12 different screens, each showing a particular criminal model, a particular civil

model and a particular hybrid model whereby they had to select:

o which would be most likely to make them pay their TV licence;

o which was the fairest;

o which was the right penalty; and

o which was most likely to make other people pay their TV licence.

Unlike the pre-existing literature we had reviewed, this research suggests that the formulation of the

law relating to the enforcement of TV licence fee evasion does have a deterrent effect. This difference

may be due to the fact that this is survey research examining stated preferences and behaviour, rather

than actual observed behaviour. Alternatively it could reflect specific characteristics of licence fee

payment (as opposed to other offences) as the literature reviewed did not specifically relate to this

offence.

Key findings

● A large fine or penalty in the order of £1000 (significantly higher than average fines under the

current model) emerged as the most effective deterrent against licence fee evasion.

● The criminal deterrents of imprisonment, a criminal record and prosecution in the Magistrates’

Court were seen as the next most effective.

● Responses to the survey indicate that evasion rates would increase if the current model was

replaced with a either a civil model or hybrid model involving a £150 fine as the initial penalty.

o Under the current criminal model, with a fine of up to £1,000 possible, 5% of the UK

population evade paying and 8.5% delay paying.

o If the model was altered to a civil penalty with a fine of £150 evasion rates would increase

to 8.9% and delaying to 11.3%.

333

As this work was commissioned by the BBC rather than Department for Culture, Media and Sport, we

undertook a number of steps to quality assure the work which are described in the next section of this annex.

TV Licence Fee Enforcement Review

110

o If the model was altered to a hybrid model, whereby first-time offenders received a civil

penalty of a £150 fine but repeat offenders would be prosecuted and receive a fine of

up to £1,000, evasion rates would increase to 6% and delaying rates to 11%.

Table 1: Predicted changes to evasion and delayed payment rates under civil or hybrid models,

according to Harris Interactive study (2015)

Current model (fine

of up to £1000)

Civil model (penalty

of £150)

Hybrid model (£150 penalty

for first-time offenders)

Evasion rate

5% (actual)

8.9% (predicted)

6% (predicted)

Delayed payment

rate

8.5% (actual)

11.3% (predicted)

11% (predicted)

● Under both a hybrid and civil model the fine amount was critical: the survey responses indicate

that if a civil penalty of over £300 was set evasion rates would not change significantly from the

current rate (5%). If, however, the civil penalty was set at below £100, evasion was predicted to

increase to around 14%.

● Survey responses from across the UK indicated that the civil model was perceived to be fairer

than both the current and hybrid model, but would be less effective at making people pay.

Overall, this suggests that if the current criminal model is replaced with a civil model, the penalty should

be set at £300 or more in order for evasion rates to remain at current levels. However it should be noted

that this is significantly higher than the current average fine of £170.

334

Quality assurance

Harris Interactive’s behavioural research on licence fee enforcement was commissioned by the BBC,

so this was reviewed by analysts from the Department for Culture, Media and Sport’s (DCMS) Evidence

and Analysis Unit, to ensure that it was suitable for inclusion on the Review. In the first instance, the

research report was reviewed by a Government social researcher. Questions and points of clarification

from this review were then addressed in a meeting between Harris researchers, DCMS policy and

analytical staff and members of the BBC team, which addressed specific aspects of the fieldwork and

analysis process. Harris Interactive also submitted additional data to DCMS in order to better inform its

understanding of the key findings.

From this process, the Department for Culture, Media and Sport is confident that the research is a

robust study. In particular, we are reassured that:

● The questionnaire design was informed by qualitative research which included those who pay

their TV licence fee, those who delay paying and those who evade paying.

● The survey sample is large and is representative of the general population (of those who require

a TV licence).

334

Ministry of Justice consultation response.

TV Licence Fee Enforcement Review

111

o The online survey sample was drawn from a large and established online panel which

is also renewed through offline methods to ensure it is representative of the wider UK

population.

o This was boosted by hall test interviews, in which people participated in the survey via

the same computer-based method but had been recruited offline, in order to ensure that

a sufficient sample of licence evaders and delayers were surveyed.

● The discrete choice modelling technique (which was used to understand participants’ views of

the different models) is a well-established method used in social and market research.

● The survey studied stated behaviour, which can diverge from observed behaviour, hence the

findings from the discrete choice modelling were calibrated to align with observed behaviour.

This used an established formula and data from the BBC evasion model which is based on a

number of verified data sources and audited by the National Audit Office.

TV Licence Fee Enforcement Review

112

ANNEX F: SUMMARY OF CONSULTATION PROCESS AND RESPONSES RECEIVED

Consultation process

The TV Licence Fee Enforcement Review Consultation Document was published on 12 February 2015,

inviting responses to the Review during a consultation period running to 01 May. A wide range of

consultation responses were received from members of the public and organisations (see table). During

the consultation period the Review team gathered evidence internally and also held interviews and

evidence-gathering sessions with a number of key stakeholders (see Appendix 1 for summaries and

list of attendees).

After the consultation closed, all responses were analysed by the Review team based on their

relevance to the 6 options and 34 questions set out in the Consultation Document, as well as their

relevance to the wider Terms of Reference of the Review. The relevant responses

335

were taken into

account during the course of the Review, and some key findings have been incorporated into the final

report.

Consultation responses

The Review received responses from members of the public by email and post. Consultation responses

were also received from the following organisations:

BBC

Callcredit

Centre for Citizenship

Channel 4

Christians Against Poverty

Government of Guernsey (Legal Response)

Government of Jersey

Isle of Man Government

Ministry of Justice

Money Advice Trust

Producers Alliance for Cinema and Television (PACT)

Scottish Courts & Tribunals Service

TV Licence Resistance

Voice of the Listener and Viewer

Additional information was provided to the Review on request from:

335

The recent House of Commons Select Committee report ‘The Future of the BBC’ was published shortly

before this Review’s consultation opened (see Chapter 4). The report brought the public’s attention to the

debate around the BBC and the future of the licence fee. However, being far more wide-ranging than this

Review, the CMS report may have prompted a number of responses to this Review’s consultation which were

outside the scope of the Review.

TV Licence Fee Enforcement Review

113

BBC Trust

BBC / TV Licensing

Capita

Crown Office and Procurator Fiscal Service (Scotland)

Ministry of Justice

Her Majesty’s Courts and Tribunals Service

TV Licence Fee Enforcement Review

114

Annex F - Appendix 1: Interview and Evidence-Gathering Session List of Attendees.

As part of the consultation the Review conducted interviews with selected experts:

Anne Bulford, Sarah Jones, Pipa Doubtfire

BBC Executive

James Purnell & James Heath

BBC Executive

Alex Towers & Nick Prettejohn

BBC Trust

Andrew Bridgen MP

Member of Parliament

John Whittingdale MP

Member of Parliament, (then) Chair of

Culture Media & Sport Select Committee

Lord Grade

House of Lords

Four evidence-gathering sessions were also held with the following attendees:

Academics and Consumer Organisations

Patrick Barwise

London Business School

Claire Milne

Consumer Forum for Communications

Richard Collins

City University

Colin Browne

Voice of the Listener and Viewer

Toni Charlton

Voice of the Listener and Viewer

Keith Wilkinson

Digital TV Group (DTG)

Sarah Clarke

Magistrates' Association (Adult Court Committee)

Dia Chakravarty

Political Director, TaxPayers' Alliance

Ministry of Justice and HMCTS

Ben Wood

Head of Crime (Summary Justice), HMCTS

Glenn Palmer

Criminal and Civil Law Policy, Ministry of Justice

Jenny Spowart

Courts Performance, HMCTS

Greg Watkins

Head of Civil Business Improvement, HMCTS

Grant Morris

Head of Criminal Enforcement, HMCTS

Anne Marie Goddard

Team Leader, Enforcement Reform, Ministry of Justice

TV Licence Fee Enforcement Review

115

Keir Hopley

Deputy Director, Civil and Criminal Law Policy, Ministry of

Justice

Maia Fallon

Jurisdictional and Operational Support Officer, HMCTS

Devolved Administrations & Crown Dependencies

Carmel McLaughlin

Director, Communications Commission, Isle of Man

Government

Paul Miele

Procurator Fiscal Depute, Policy Division, Scottish

Government

Peter Willman

Head of Broadcasting and Media Policy, Scottish

Government

Stephanie Peat

Telecommunications Policy Advisor, States of Jersey

Government

Steven Pallot

Law Officers’ Department, States of Jersey Government

BBC Trust & BBC Executive

Paul Wignall

Head of Commercial Management, TV Licensing

Pipa Doubtfire

Head of Revenue Management, TV Licensing

Richard Houston

Senior Policy Adviser, BBC

Jo Smart

Legal Adviser, TV Licensing

James Heath

Director of Policy, BBC

Ron Hand

Field Operations Lead, TV Licensing

Jason Jones

Head of Legal, TV Licensing (Capita)

Paul Edwards

Court Presenter, Capita

Gareth Tuck

Chief Financial Adviser, BBC Trust Unit

Colin Jones

Director of Field Operations, Capita