Section 147 of the Broadcasting Act

Mark Hamill

What does "given personally" mean in reference to Section 147 of the Broadcasting Act?

An officer of an issuing agent may, if and whenever he or she thinks proper so to do, cause a special notice in writing (accompanied by or having annexed to it a form of declaration) to be given personally to, or be served by registered post on, any person requiring that person, within 28 days after the service of the notice on him or her

I have no TV and have never had a TV and whilst I had been getting (and ignoring) those TV licence letters addressed to "The Occupant", today there was a letter in my letter box addressed to me. This letter demands I fill out an accompanying form or, as per Section 147 of the Broadcast Act, I will be fined. But doesn't Section 47 say it has to be physically handed to me by an inspector or sent by registered post? Regular post doesn't count, does it?

shivermetimber

I got one addressed to me personally today too. Never had one before in 5 years in this rented accommodation. What I can't figure out is how they know my name.

Ghekko

Would you not have just contacted them to tell them you don't have a tv instead of ignoring the letters previously received?

Mark Hamill

Ghekko wrote: »

Would you not have just contacted them to tell them you don't have a tv instead of ignoring the letters previously received?

I don't have a TV and they have zero evidence of me having a TV. Every letter starts with "There is no record of a current TV licence in respect of this address", not "Our monitoring equipment, which we repeatedly claim to have and totally really exists you guys, has discovered a un-licenced TV a this address", so they don't even need to know who I am. I have a bad experience with the TV licence group in the past, Mod deletion - pls, no abuse.

Victor

Mark Hamill wrote: »

What does "given personally" mean in reference to Section 147 of the Broadcasting Act?

It would largely have it's ordinary meaning, that it went from their hand to your hand. You refusing your hand probably wouldn't work.

Mark Hamill

Victor wrote: »

It would largely have it's ordinary meaning, that it went from their hand to your hand. You refusing your hand probably wouldn't work.

I didn't refuse it, I wasn't home when it was left in my letterbox. Does regular posting count as "personally giving" the letter?

Peregrinus

Mark Hamill wrote: »

I didn't refuse it, I wasn't home when it was left in my letterbox. Does regular posting count as "personally giving" the letter?

I would have thought not.

You could argue that if the TV licence inspector brings it round to your house (as opposed to posting it) and, finding you not there, leaves it for you, he has given it personally - i.e. you could argue that "personally" refers to the inspector, not to you.

But it's not a very good argument. In the first place, the wording of s. 147 talks about the inspector "causing the notice to be given", suggesting that he can get someone else to to the actual giving. In the second place, the alternative to "personal giving" offered by s. 147 is registered post (as opposed to ordinary post, which the Act allows for several other purposes) and this suggests a legislative intention that you personally should receive the notice.

So I think to give it personally to you, he either has to put it in your hand, or at least (if you refuse to take it) leave it in your presence, and draw your attention to it. Leaving it in your letterbox while you're not there is probably not sufficient.

The question is whether you want to take a day off work to argue this in court (with, if I am wrong above, a risk of losing) or whether (if in fact you have no television) you would prefer, for the sake of a quiet life, just to make and return the declaration.

Fred Swanson

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Peregrinus

Fred Swanson wrote: »

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Failing to complete the notice is not an offence.

If you complete the notice falsely (i.e. you make an untrue statement), that's an offence, and you can be prosecuted.

The consequence of failing to complete the notice is that a presumption arises (a) that you keep a television set on the premises, and (b) that you don't have a licence for it, and they can rely on that presumption to prosecute you for not having a licence. But it's not an irrebuttable presumption; when your trial for not having a licence comes on you're free to adduce evidence showing either that there is no television set on the premises or that you have a licence.

Mark Hamill

So an update to this thread:
I decided to just send in the form back in May just to hopefully be done with this and I didn't hear anything since then until Tuesday just gone (22nd August). I got a buzz at the door at ~6.15pm, someone claiming to be from An Post and wanting to come into my apartment to verify that I had no TV. Needless to say I told him no, I am not just going to let some stranger into my apartment for a look around.
I knew I shouldn't have responded to that damn form :mad:

Pat Mustard

Mod note:

Off topic rubbish deleted

RustyNut

Peregrinus wrote: »

Failing to complete the notice is not an offence.

If you complete the notice falsely (i.e. you make an untrue statement), that's an offence, and you can be prosecuted.

The consequence of failing to complete the notice is that a presumption arises (a) that you keep a television set on the premises, and (b) that you don't have a licence for it, and they can rely on that presumption to prosecute you for not having a licence. But it's not an irrebuttable presumption; when your trial for not having a licence comes on you're free to adduce evidence showing either that there is no television set on the premises or that you have a licence.

Would showing up in court and stating "I have no equipment that requires a tv licence" cover it and put the onus back on the TV licence inspectors to prove that a licence is required for the premises?

Fred Swanson

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mel123

Mark Hamill wrote: »

So an update to this thread:
I decided to just send in the form back in May just to hopefully be done with this and I didn't hear anything since then until Tuesday just gone (22nd August). I got a buzz at the door at ~6.15pm, someone claiming to be from An Post and wanting to come into my apartment to verify that I had no TV. Needless to say I told him no, I am not just going to let some stranger into my apartment for a look around.
I knew I shouldn't have responded to that damn form :mad:

To be honest, i dont agree with the TV licence, its a load of rubbish but that point aside....

If you really do not have a TV, why dont you just let them in to have a look? From reading other posts, they seem to glance in once room and thats it. It saves all the agro for you, they are satisfied you have no tv, and you are satisfied because they stop pestering you

Fred Swanson

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mel123

Fred Swanson wrote: »

It is the principle of the matter to most people.

Yes I do understand this also, and as I said I don't agree with it, but it sounds like it's causing the OP undue stress and it might be just easier to prove hey I have no Tv have a look and leave me alone

Peregrinus

RustyNut wrote: »

Would showing up in court and stating "I have no equipment that requires a tv licence" cover it and put the onus back on the TV licence inspectors to prove that a licence is required for the premises?

Not necessarily. If you were personally served with the statutory notice and you didn't complete it and send it back, that creates a statutory presumption that you have equipment requiring a licence, and the onus of proof is now on you to rebut that. The District Judge may not necessarily be satisfied with a simple denial; he may feel that's not enough to discharge the onus of proof that's on you.

As Fred says, for many people this is an issue of principle but, as with most tax legislation, your principled objections do not affect your liability, so people may have to decide whether their principled objections are sufficiently important to them that they will suffer a conviction and fine rather than comply with the legislation.

Fred Swanson

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GM228

Peregrinus wrote: »

Not necessarily. If you were personally served with the statutory notice and you didn't complete it and send it back, that creates a statutory presumption that you have equipment requiring a licence, and the onus of proof is now on you to rebut that. The District Judge may not necessarily be satisfied with a simple denial; he may feel that's not enough to discharge the onus of proof that's on you.

I'm not sure I agree.

The Broadcasting Act 2009 does not cast any burden of proof on the accused to prove their innocence. "Until the contrary is shown" is not the same as "until the contrary is proved", whilst you may* have a burden of adducing evidence - "I don"t have a TV" being sufficient evidence, the onus of proving the charge still lies on the prosecution.

*Would having a TV not be the core element of the offence? I would think it is, in which case isn't it accepted that the core element of an offence must always be proved by the prosecution and the reversed burden of proof would then usually apply to a defence (where provided for in statute) to an element of the offence, but not the core element.

Take a murder charge for example - the prosecution must prove beyond a reasonable doubt that the core element of the crime was committed, but the accused must then prove on the balance of probabilities that they had a diminished responsibility for example, but if the prosecution can't prove the core element in the first place then the reversed burden of proof on the accused does not come into play.

Peregrinus

I don't think there's a rule, is there, that the burden of proof can only be placed on the defendant in relation to a defence that he raises? While the burden of proof in relation to the charge is normally on the prosecution, the statute may prescribe otherwise, and sometimes does where it would be very difficult for the prosecution to prove X beyond all reasonable doubt, but trivially easy for the defendant to prove not-X. For example, it's easy for the defendant to prove that he has a valid driving licence; he just has to produce it. But it's practically impossible for the prosecution to prove that he doesn't. Even if they know, and can prove, that he doesn't have an Irish licence, they generally wouldn't be in a position to prove that he doesn't hold a foreign licence that is valid for him in Ireland.

This seems to me to be a similar case. "The defendant has a television" is an element of the offence which is difficult for the prosecution to prove (without the defendant's co-operation) so the statutory notice procedure effectively give the defendant a choice; co-operate, or bear the onus of proof.

I note the show/prove linguistic distinction; that may signal that the defendant has a lower standard of proof - balance of probabilities, say, rather than beyond all reasonable doubt. The court might take the view that the defendant's testimony that he has no television was enough to show, on the balance of probabilities, that he did not, but on the other hand it might not take that view. Obviously the court will consider the totality of the evidence, which may suggest that the defendant has been evasive, uncooperative with inspections, and so forth, and that might colour the weight they would attach to his testimony.

GM228

Peregrinus wrote: »

I don't think there's a rule, is there, that the burden of proof can only be placed on the defendant in relation to a defence that he raises?

There is case law on the issue and the burden of the core element of a charge can't shift to the accused, to do so would in effect create a presumption of guilt, any reversal must take account of constitutional rights and the presumption of innocence, as such any reversed burden will generally only apply to a defence raised (after the core element is proved by the prosecution) and the accused will either have to prove the defence on the balance of probabilities or the prosecution will have to rebut it depending on the wording of the statute.

See the DPP vs Kieran Smyth (Snr) & Kieran Smyth (Jnr) [2010] IECCA34 Court of Criminal Appeal Case which concludes that a core element of a criminal charge must be proved beyond a reasonable doubt, whilst a defence can be proved on the balance of probabilities, the reverse burden on an element as opposed to a defence "would not be right" as "the necessary inference that the accused must discharge that burden on the balance of probability is not easily made" in relation to an element (i.e a non core element) of the offence.

The construction of a criminal statute requires the Court to presume that the core elements of an offence must be proven beyond reasonable doubt; otherwise the accused must be acquitted. A special defence, beyond the core elements of the offence, may carry a different burden; insanity and diminished responsibility are examples of such a defence which casts a probability burden on the accused.

Where, however, in relation to an element of the offence itself, as opposed to a defence, a burden is cast upon the accused, the necessary inference that the accused must discharge that burden on the balance of probability is not easily made. The Court notes that bearing the burden of proving a defence as a probability could have the effect that in respect of an element of the offence an accused person might raise a doubt as to his guilt, but not establish it as a probability. This might lead to a situation where the charge was not proven as to each element of the offence beyond reasonable doubt, but nonetheless the accused could be convicted. That would not be right. Proof of a guilty mind is integral to proof of a true criminal offence, in distinction to a regulatory offence

Having a TV is the core element of the offence and the legal burden "beyond a reasonable doubt" which applies to a core element can never be cast on the accused, nor can the reversed evidential burden on the accused ever diminish that burden on the prosecution, see the O'Leary vs AG [1993] 1 IR 102 High Court case:-

The phrase is used firstly to describe as a matter of substantive law the burden which is imposed on the prosecution in a criminal trial to establish the case against the accused beyond a reasonable doubt. This burden is fixed by law and remains on the prosecution from the beginning to the end of the trial. It is this burden which arises from the presumption of the accused's innocence and it is the removal of this burden by statute that may involve a breach of the accused's constitutional rights.

It is now usual to refer to this burden as the legal or persuasive burden of proof. But the phrase is also used to describe the burden which is cast on the prosecution in a criminal trial of adducing evidence to establish a case against an accused, a burden which is now usually referred to as the evidential burden of proof. In criminal cases the prosecution discharges this evidential burden by adducing sufficient evidence to raise a "prima facie" case against an accused. It can then be said that an evidential burden has been cast on to the accused. But the shifting of the evidential burden does not discharge the legal burden of proof which at all times rests on the prosecution.

Peregrinus wrote: »

While the burden of proof in relation to the charge is normally on the prosecution, the statute may prescribe otherwise, and sometimes does where it would be very difficult for the prosecution to prove X beyond all reasonable doubt, but trivially easy for the defendant to prove not-X.

The legal burden of proof to the standard "beyond a reasonable doubt" is always on the prosecution, the legal burden of proof to the standard of "on the balance of probabilities" can shift to the accused, but statute must then require the accused to "prove" as opposed to "show" for that to happen, statute must specifically cast the burden on the accused, there is nothing in the Broadcasting Act to cast the legal burden on the accused, just a burden of adducing evidence.

As such, even where there is a reversed evidential burden the accused could decide not to call evidence and the case must then fail if the evidence did not establish their guilt beyond a reasonable doubt.

Even when a burden is cast on the accused on the balance of probabilities it "merely gives legal effect to an inference which it is reasonable to draw from facts which the prosecution established” as per Mr. Justice Costello in the O'Leary High Court case - again the prosecution must establish the facts of the case and it would not be reasonable to infer the accused had a TV when no evidence supports such.

Peregrinus wrote: »

For example, it's easy for the defendant to prove that he has a valid driving licence; he just has to produce it.  But it's practically impossible for the prosecution to prove that he doesn't.  Even if they know, and can prove, that he doesn't have an Irish licence, they generally wouldn't be in a position to prove that he doesn't hold a foreign licence that is valid for him in Ireland.

And this is the issue, it is "practically impossible" to prove a negative in this case - i.e that you don't have a TV, expecting the accused to do so would not be fair and create a presumption of guilt - how do you prove the non-existance of such - you can't.

Proving someone does not have a driving licence is far from practically impossible though, the prosecution state no licence was produced and records show no licence, if the accused can't produce a licence then they don't create any reasonable doubt to to the prosecutions evidence to gain the benefit of that doubt.

Peregrinus wrote: »

This seems to me to be a similar case.  "The defendant has a television" is an element of the offence which is difficult for the prosecution to prove (without the defendant's co-operation) so the statutory notice procedure effectively give the defendant a choice; co-operate, or bear the onus of proof.

It isn't just an element, it's the core element and the prosecution must prove you have a TV (and possibly more such such as knowledge and control of the TV etc as I have said before in relation to TV licence prosecutions) as shown above the prosecution must prove the core element of any offence.

Peregrinus wrote: »

I note the show/prove linguistic distinction; that may signal that the defendant has a lower standard of proof - balance of probabilities, say, rather than beyond all reasonable doubt.

The accused can never bear the higher standard of proof, just the lower standard. The difference between show and prove is show requires an evidential burden whilst prove requires a legal burden to prove on the balance of probabilities.

The Supreme Court cases of Hardy vs Ireland [1994] 2 IR 55 and O’Leary vs AG [1995] 1 IR  254 have shown that "show" simply means an evidential burden as opposed to a legal burden to prove.

And here's a little anomoly when discussing the show/prove topic - S24 of the Offences Against The State Act 1939:-

24.—On the trial of a person charged with the offence of being a member of an unlawful organisation, proof to the satisfaction of the court that an incriminating document relating to the said organisation was found on such person or in his possession or on lands or in premises owned or occupied by him or under his control shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation at the time alleged in the said charge.

The O'Leary High Court and (majority) Supreme Court cases read down the "proved" requirement to mean simply an evidential burden rather than a legal burden to prove with regards to S24 - if such a serious matter is considered an evidential burden which does not require proof despite the use of the word proved it could never even be suggested that "shown" in a trivial (compared to the 1939 Act) charge would require the accused to prove it.

That having regard to the specific provisions of s. 24 of the Act of 1939, the section did no more than shift an evidential burden of proof upon drawing certain inferences, the weight of which depended very much upon the type of facts establishing them and, similarly, that the reception of such evidence did not oblige the court of trial to convict.

To summarize, there are two types of burdens - the legal burden of proof and the evidential burden of proof.

The Legal Burden of Proof - this places upon the party bearing that legal burden, the obligation to prove the issue that they are required to prove.

It is often said that the legal burden can never be cast on the accused, this simply isn't true - this stems from the belief that the legal burden only carries the "beyond a reasonable doubt" standard, that is true in the case of the prosecution and always remains as such, but the legal burden can also carry the lower "on the balance of probabilities" standard and it is that standard of the legal burden which can be cast on the accused in some circumstances where they must not only raise a defence but also prove it. Even when this legal burden is cast on the accused the higher legal burden to prove guilt still remains with the prosecution.


The Evidential Burden of Proof - this is the burden of adducing sufficient evidence to allow a defence to be argued.

Despite it's name there is actually no requirement to prove, it would be more appropriate to call it the "evidential burden to raise an issue". Rather the prosecution must rebut the evidence.

Even when there is an evidential burden on the accused they could actually decide not to call any evidence and the case must fail if the prosecution did not establish guilt beyond a reasonable doubt as the legal burden still remains on the prosecution.

Discodog

shivermetimber wrote: »

I got one addressed to me personally today too. Never had one before in 5 years in this rented accommodation. What I can't figure out is how they know my name.

When AnPost took over they instructed the Postmen to fill in missing names from addresses.

Peregrinus

Discodog wrote: »

When AnPost took over they instructed the Postmen to fill in missing names from addresses.

Took over? Haven't An Post always done the TV licence enforcement work?

(But, yes. They're the post office. They know who lives in your house. Lots of people do.)

I love Sean nos

Mark Hamill wrote: »

I got a buzz at the door at ~6.15pm, someone claiming to be from An Post and wanting to come into my apartment to verify that I had no TV. Needless to say I told him no, I am not just going to let some stranger into my apartment for a look around.

Next stage is you receive a summons claiming that the inspector "observed" a TV and bringing you to court to face a charge based on that.

Discodog

Peregrinus wrote: »

Took over? Haven't An Post always done the TV licence enforcement work?

(But, yes. They're the post office. They know who lives in your house. Lots of people do.)

I thought that they took over the enforcement from someone else

Fred Swanson

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Mark Hamill

I love Sean nos wrote: »

Next stage is you receive a summons claiming that the inspector "observed" a TV and bringing you to court to face a charge based on that.

He'd be doing well observing anything at all in an apartment on the top floor of a 3 story building.

I love Sean nos

Mark Hamill wrote: »

He'd be doing well observing anything at all in an apartment on the top floor of a 3 story building.

Indeed. But others have reported here on receiving similar summons.

Peregrinus

Mark Hamill wrote: »

He'd be doing well observing anything at all in an apartment on the top floor of a 3 story building.

Now you know why that drone was buzzing your windows.

Mark Hamill

I love Sean nos wrote: »

Indeed. But others have reported here on receiving similar summons.

Oh, I know, I was one of those who got such a summons (in my previous address, despite not having a tv for anyone to actually see).