Defend on (1) procedural illegality of investigation and prosecution and on (2) factual basis of your case such that the offence is not made out and on (3) the basis that the TV licence is illegal under European Union economic competition law. You are likely to be found guilty on the say so of the investigator if you have no witnesses and if you let him in the house. If found guilty quash the conviction by appealing to Crown Court for an automatic re-trial. Force the bastards to use a barrister to present their case, that is what will rack up the thousands of pounds costs. The EU challemge is a surefire hit for that.
A trial at Magistrates Court can be very quick - a single appearance where you are tried and convicted. But if you make an initial showing that you want a trial with a cross examination of witnesses and that there are questions of law involved such as the EU challenge then things are longer and slower. In my case there was a preliminary hearing before 3 lay justices called a pre-trial review, this was because my summonse reply raised a challenge to the evidence and a challenge under EU law. At that review you will discuss filing of pre-trial skeleton arguments and the receipt of their reply skeletons, you will also discuss what witnesses each side wishes to call. I did not challenge validity of summonse or of Capita as prosecutor because I didn't know to and so you have been warned to raise those challenges and you will have to just carry those off as best you can. After pre-trial review, you proceed to exchange skeletons, and then there will be the trial. It is likely that if you have made the questions of law sufficiently complex then a stipendiary magistrate (a District Judge) will hear the case. You will likely have an afternoon for the trial and you will likely be found guilty at the end of the day if it is your word against that of the Enquiry Officer and if you let him in your house.
When you receive the summonse you will have a form to complete and return saying how you intend to plead - guilty or not guilty and any mitigating circumstances. Return it with a note that (1) you intend to challenge jurisdiction of the court as the summonse is a forgery; that (2) you plead not guilty on the evidence; that (3) the prosecution should be stayed as an abuse of process for misbehaviour of the investigator (failure to conform to PACE); that (4) you challenge the right of Capita to prosecute because it is not the informant; and that (5) you challenge the lawfulness of the legislation creating the offence because it is in breach of EU Competition Articles 86 and 82 read together. Point out that under the Criminal Procedure Rules Magistrates Court has the power to refer the last challenge to the European Court of Justice for an opinion. You will have received an eye-witness statement by the Enquiry Officer with the summonse, state that you wish to force the prosecutor to produce the witness at trial. They hope you will accept that statement as the proof and it is up to you to say that you do not. However there is an argument that if the statement doesn't make out the elements of the offence you should accept that they do not need to produce the witness at trial and then at trial just argue that the statement relied on doesn't make out the offence. That would have been best in my case but I was not wise to it, because in fact the first witness statement didn't make out the elements of the offence. Therefore had I known better I would just have challenged the summonse, if that failed I would have been better off going to trial on the basis of accepting the witness statement and making no other challenges. Then I reckon I would have got off. Oh well. So again, don't follow me blindly. What I say in these pages helps you hurt them and undermine the morality and legality of the proceedings even if they do everything in a way acceptable to the Magistrates. One other word on the witness statement - they can issue a new one whenever they like and they would probably be allowed to produce the witness at court for the trial if they liked so nothing is for sure.
After you mail out your reply to the summonse you will get a order to appear at court for pre-trial review on a given date.
Capita prosecutes in batches of 50. Some will plead guilty by post and accept sentencing by post. The rest will turn up on the same date at the same court, to be processed in front of the lay magistrates, a few minutes for each person. Proceedings won't get under way until after 10 am, and likely there will be alcohol licensing proceedings as well, so you may be stuck in a queue for your hearing for a couple of hours. Essentially there is a waiting room outside of court where you are all corralled after you have been told in writing to turn up at 10 am. Most of the others from your batch who turn up will probably be worried and will probably cave in. Capita will send a 'court manager' and a solicitor. The court manager is the employee of Capita who controls the fact of you being prosecuted while the solicitor is from the professional counsel appointed by the firm to handle technical details for the firm before the court. They will roam the waiting room trying to psyche-out you and others in your batch, to get you to roll over. The sooner you roll over the cheaper for Capita. If you have shown yourself a determined resister the solicitor will try to bullshit you that for example there have already been Court of Appeal rulings on your challenge so you'd better give up now, but that will be a lie. For instance that was said to me about the EU challenge but there never has been such a challenge before, never mind one that got to the Court of Appeal. You will see lots in your batch fold and agree in the waiting room to plead guilty. Anyway, once alcohol licensing cases have been heard this 'dynamic duo' will go and sit in the court proper. The defendants will be called in one by one. When your turn comes you will be put into 'the dock', which is cramped and has standing room only, while everyone else gets to sit comfy.
You can have your skeleton arguments already available by the time you appear at court, whereupon you should have a copy for each of yourself the court and the prosecutor, and you can then 'serve' them there and then. Don't serve the skeleton on the evidence, just those on the legal challenges. Your line on evidence should be kept to yourself until the time arrives at trial to present the evidential challenge to their case. And anyway they can keep modifying the evidential basis right up to the presentation of their case at trial so it is a moving target.
This is my original contribution to TV license resistance, I'll bet you have all been holding your breath for it! Well, at last, we get to the meat of it. It is at the pre-trial review stage via submission of a skeleton argument that you will lodge the basis of the challenge.
This is the gist of the challenge to the legality of the TV License law when measured against Euroean Community competition articles 86 and 82 read together.
Print this off and attach to the summonse reply so it is mailed in with that reply as part of your plea of not guilty. Remember to keep a copy for yourself. Send a copy for the prosecutor Capita and ask the court to serve it on Capita with your plea. Also enclose a letter with your reply to the summonse asking to see the information laid before the Magistrates in order to obtain the summonse, of course we expect a letter back saying there is no such documentation, which will be used to challenge the validity of the summonse.In sum Article 82 prevents the restriction of markets to the detriment of consumers. You are being told you cannot take a service from providers other than the BBC without first buying from the BBC, that is a restriction of markets to your detriment. Next, Article 86 requires the suspension of any national laws that favour a given undertaking such that the undertaking behaves in a manner that is a breach of Article 82. So the restriction of markets to your detriment is due to the laws creating the TV License, so those laws must be suspended, the technical term is that they must be disapplied and your EU rights must be fully applied in their place. Great! Now this will only be a defence if you are not tuned into the BBC channels. If you are tuned into those channels you have volunteered to take the BBC's product so you will just have to pay for it. Of course, the Enquiry Officer will be forewarned of this defence if it becomes prevalent so he may lie about seeing those channels tuned in. An undertaking is any private or public organisation that engages in an economic activity. Private could mean a company, public could mean a nationalised firm or a government body. The BBC is a government body. The BBC is classed as engaged in an economic activity because it competes with private sector companies that are clearly economic enterprises run for profit in a marketplace, such as ITV.
The Magistrates will schedule a trial date and a length of trial (a morning or afternoon), they will establish a time for Capita to file a reply and you will get a chance to reply to their reply probably, they will ask what witnesses you want at that trial. They will probably pass the matter to a District Judge.
At trial that judge will probably tell you he cannot hear the challenge because he has no power to do so. I refer you to the website of the Department for Constitutional Affairs (the DCA), which publishes over the world wide web the Criminal Procedure Rules. Go there and look up the PART 75 otherwise known as Rule 75, entitled something like 'Reference to the European Court'. I cannot be more precise than this because the rules are subject to change so you always need to find out what they are at the time of your case. As that rule was stated at the time of writing this website page (January 2006), there was no mention of the Magistrates being able to refer a question to the European Court of Justice but there is mention that the Crown Court can. Therefore if the Magistrates Court refuses to hear the EU challenge on this basis of lack of power that is an automatic reason for you to appeal a conviction to the Crown Court for a retrial. It is pointed out here that by EU law as interpreted by the ECJ all courts are under an obligation to obey and implement fully EU law and all have a right to make a reference to the ECJ even if that conflicts with written national laws or decisions of higher national courts. So there is an inherent right and indeed duty of the Magistrates to hear the challenge and make a referral to the ECJ. They will not excercise it though, and you are gonna have to appeal to the Crown Court by the Rule 75 (as formulated at the time I am writing).
The European Community Treaty was made into the fundamental constitutional law of Britain by the European Communities Act 1972. This is the most democratic law ever created in Britain because it was affirmed by a popular vote of all the citizens of the UK (a plebiscite) around 1974. It was forseen in the Act that it might conflict with other laws and even other Acts of Parliament. So there is a section in that Act that states that any other law must be interpreted to be in accordance with Community law, and where that cannot be done then the other law including an Act must be set aside in favour of Community law. There are examples of this being put into effect such that another Act of Parliament was modified via interpretation by the courts so as to be compatible. The famous case is called in short 'Factortame'. It was in fact a series of cases spanning the UK courts and the ECJ. In the late 1980's a Merchant Shipping Act was passed that said only UK citizens could fish in UK waters. But Spanish fishermen applied for licenses under the Act and were refused. The House of Lords made a referral to the ECJ, which replied that any EU citizen could fish in UK waters. So the House of Lords interpreted the term UK citizen to mean any citizen of the EU!
There is much more to this line of attack on the license fee, we cannot go into all the detail in this summary, but we will add a 'resources' download so that a compressed file loaded with details from legal texts and with further briefs for use in court can be obtained and browsed at your liesure. The summary here gives you the gist and allows you to get started.
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