Tuesday, 25 March 2014

The saga of TV Licence evasion: are we finally ready to decriminalise?

By Adam Snow, PhD student in Criminology

Proposals have been put forward for TV licence fee evasion to be decriminalised. Originally the proposal was to completely decriminalise the system, now amendments have been accepted that give the power to Ministers to decriminalise at a date in the future should they see fit.

The first thing to say about this change is that in all likelihood decriminalisation will be unlikely for a significant period.  The BBC itself welcomed the changes from outright immediate decriminalisation and stressed the need to take into account the BBC's review of charter which takes place every 10 years.  The next review is due before 2016.  Thus nothing will likely happen before then.  The current bill proposal states that a review of decriminalisation must take place within 3 months of the act becoming law, and the review must be completed within 12 months from that date.  Anyone familiar with the issue of decriminalisation of the licence fee will no doubt be sceptical that any changes will take place in the foreseeable future.  The Auld report in 2001 recommended partial decriminalisation by way of a fixed penalty notice, but even this modest proposal (still maintaining the criminal law) was not taken forward; indeed the Communications Act 2003 reaffirmed the criminal nature of licence fee evasion.

Any magistrates reading this and hoping for a swift removal of these "boring and monotonous" cases from the courts is, I think, in for a shock.  I suspect that decriminalisation is unlikely to happen at all or at least in the next few years, if anything it is more likely that the Auld recommendations will taken forward as a compromise (A fixed penalty notice with the option of going criminal proceedings).  The BBC seems to be quite an effective lobbyist on this issue.  If a full scale judicial inquiry into the criminal justice system cannot bring about this change, there is little chance now I'm afraid.  But what strikes me as particularly interesting and, quite frankly, bizarre, is the idea that by retaining the criminal law in TV licence evasion it somehow impacts on people’s behaviour.  Here the dispute is more to do with the idea of deterrence and the possibility that the use of the criminal justice system can deter people from avoiding the licence fee.  Overwhelmingly the evidence for the efficacy of deterrence in criminal justice is that it is weak means of gaining compliance.  The best evidence for deterrence is that in situations where the likelihood of being captured is increased then there is some deterrent effect.

In this regard the fabled “detector van” provides a fear that technological methods can be employed that make it virtually certain that evasion will be detected.  How real this fear is, is certainly contested with some reports suggesting that the technology is simply a fabrication in order to increase the fear of detection (see this article from the Radio Times).  Furthermore the BBC studiously refuses to specify how such vans work or even if they actually exist, although one campaigner estimates there are 26 such vans. 

To be clear, the BBC argument seems to be more focused on the severity of the criminal law rather than the certainty with which evasion will be captured.  In effect they are arguing that the seriousness of the criminal law, the potential severity of punishment, acts as a deterrent.  (A number of BBC spokespeople have claimed that it is likely there will be an effect on output should the offence be decriminalised.)  The evidence from deterrence is that severity of sanction is a at best an incredibly weak indicator of compliance.  It is also important to interrogate here what the actual sanction is for TV licence evasion in order to assess this severity.  It is a fine, and, depending on the length of evasion, is between 50-100% of relevant weekly income.  Based on the median wage (2013) the average weekly relevant income is £405.  It is unlikely that most TV licence evaders are anywhere near the average weekly income and instead are probably closer to the minimum amount of weekly income specified in the sentencing guidelines, £110.  Therefore most cases of a fine probably vary between £55 (Band A) or £75 (Band B) or £202.50 (Band A) and £405 (Band B).  One should always be wary reports that merely state the maximum fine level, as this report from the BBC includes, it is unlikely that anyone will receive the maximum fine.  It is more than likely that agencies specifying maximum fines do so in order to induce fear, rather than for the mere purposes of information, a technique characterised as ‘selling’ the disposal (it is quite frequently used in most On the Spot Penalties). Therefore as a rough rule of thumb the fine is likely to be in the region of between £100 and £500, although based on my own studies in Magistrates’ Courts I would estimate that the probable average fine is in the region of £120 - £180.  In 2010 the Daily Mail estimated that the average fine was £171 or 17% more than the actual licence fee.  Given the grand scheme of punishment this is hardly what one would describe as a severe sanction. 

Of course there is the added factor of an actual criminal conviction.  A criminal conviction is obviously not a pleasant thing in and of itself; however the mere fact of a conviction does not carry the stigma it may have once done.  Rehabilitation under the Rehabilitation of Offenders Act is 12 months for offenders sentenced to a fine.  Thus if no further criminal offending comes to light in this period then the slate is wiped clean.  It is as if the person was never convicted of the offence (except for certain professions, health care, child care etc).  One thing is for certain, it is unlikely that most people reading this blog would know about the 12 month period for rehabilitation, unless they were regularly involved in the administration of justice.  The severity of a criminal conviction for TV licence evasion is therefore probably significantly overestimated by most people.

A final factor that is sometimes mentioned by BBC executives is the punishment for non payment of a fine is imprisonment.  It was mentioned at the first BBC Charter review in  2005, and in 2004 28 people in England and Wales were imprisoned following non payment in TV licence cases, this is out of a total 120,000 convictions in 2004/5.  Whether such a process is legitimate is certainly debateable, there have been many debates and discussions over the years about the justice of imprisoning fine defaulters, as well as the adequacy of short sentences (which defaults invariably are).  What should be noted however with such cases is that imprisonment is always at the end of a very long process and only available in those cases where non payment is deliberate and wilful.  Furthermore when imprisoned the fine is remitted and thus at the end of sentence no payment is necessary.

Thus at every stage of the deterrence argument the BBC make, they rely on what might be termed false consciousness.  People believe that the BBC are so technically advanced that they can capture evasion easily, and that when they do there are swift and severe punishments in place that would deter anyone from reoffending (as well as send a message to the rest of us that we will be caught and punished if we think about doing something similar).  There is very little evidence to support this.  The BBC refuses to publish details about the effectiveness of its detection equipment and the severity of punishment is often vastly overstated.
Decriminalisation would not of itself actually remove or lessen the severity of sanction in the vast majority of cases.  The monetary penalty would remain, all that would change is the threat to reputation that a criminal conviction has and the extremely rare imprisonment in default would also be removed. (It should also be added that civil laws methods for dealing with non payment can be quite draconian itself at times.)
However decriminalisation would in all likelihood increase the certainty of capture.  By switching to a decriminalised system the burden of proof on the BBC for proving licence evasion would be lowered.  They would no longer have to prove beyond reasonable doubt that the individual has evaded the licence fee.  Instead they would merely have to prove so on the balance of probabilities, thus making it easy to successfully punish evaders.  All the BBC stands to lose from decriminalisation is the ability to impugn the reputation of the offender, the financial sanction remains and the likelihood of capture would increase.

The question therefore is whether it is right to continue to have the criminal laws power to impugn a person’s character at the disposal of the BBC for its commercial (albeit with a significant public service remit) interests?  I for one do not think that it is, but at least now we can be clearer about why the BBC may want to retain the criminal law.  The criminal laws power, at least in relation to TV licence evasion, lies in the fact that it can impugn the reputation of the evader and theoretically result in imprisonment at a stage far removed from the original evasion.  In effect the BBC are arguing that not paying ones licence is so wrong that only by impugning ones reputation  can the harm of evasion be recompensed.  Only the criminal law can do this formally, the civil law financially recompenses the wrong without the stigma.  TV licence evasion should be decriminalised at the earliest opportunity, and preferably retain a means for challenging penalty notices in a similar way to parking tickets.

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