Dear Ministry of Justice,

In August 2010, a Mr Heather wrote to TV Licensing™ (see http://tinypic.com/view.php?pic=2vty1xl&...) advising them that he did not require a television licence as he does not receive or record live television broadcasts. I would like to draw your attention to the opening sentence: "I do not require a television licence, as I do not receive or record live television Broadcasts". Please note that he is not claiming not to have a television set at his premises.

You don't need a licence if you don't use any of these devices to watch or record television programmes as they're being shown on TV - for example, if you use your TV only to watch DVDs or play video games, or you only watch ‘catch up’ services like BBC iPlayer or 4oD. See: http://www.tvlicensing.co.uk/check-if-yo...

On the basis of the above quote from the TVL official website I hope you will agree there are many ways to watch a TV and remain legally licence-free.

On the 28th of June 2011 an application for a Section 366 Search Warrant was made to a local magistrates' court claiming, under oath, reasonable grounds to believe that an offence was being committed.

Here are links to the Search Warrant application:

Paragraphs 1-5 http://tinypic.com/view.php?pic=10mmmop&...
Paragraphs 6-11 http://tinypic.com/view.php?pic=auz4ac&a...

Paragraphs 2, 5 and 6 are of particular interest

2) In a letter from "The Legal Occuppier" dated the 10th August 2010, the correspondent stated that they did not have a television set at his premises...

5) A television display generates light at specific frequencies. Some of that light escapes through windows usually after being reflected from one or more walls of the room in which the television is situated. The optical detector in the detector van uses a large lens to collect that light and focus it on to an especially sensitive device, which converts fluctuating light levels into electrical signals, which can be electronically analysed. If a receiver is being used to watch broadcast programmes then a positive reading is returned. The device gives a confidence factor in percentage terms, which is determined by the strength of the signal received by the detection equipment and confirms whether or not the source of the signal is a "possible broadcast".

6 On the 31st March 2011 at 18.36 hours the detector van was positioned near the Premises. When the detector camera was pointed at the window of the Premises a positive signal was received indicating a TV receiver was in use receiving a possible broadcast with a confidence factor of 97%. A television aerial and a satellite dish was also seen affixed to the Premises.

Paragraph 2 was perjurious as the letter only states that Mr Heather does not receive or record live television Broadcasts. Furthermore, this lie would doubtlessly influence the JP's decision when weighing the alleged dishoesty of the letter against the 'detection evidence' of paragraphs 5 and 6.

Before addressing paragraphs 5 and 6, please consider the following. TV Licensing's Mark Whitehouse featured on BBC Radio Northampton's Stuart Linnell show on 4th July 2011. The following is an excerpt from the transcript relating to their detection equipment:
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SL: “Can it even work out which channel they’re watching?”

MW: “It doesn’t tell us what they’re watching but it tells us which room they’re watching it in, and we can tell that in as little as 20 seconds. Again, we’re keen people don’t take that risk. We’re keen that people do realise their obligations and don’t run the risk being caught watching telly if they’re unlicensed.”
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As you can see, the detection equipment does not show what is being watched, so is only capable of detecting if a TV or monitor is switched on. It therefore can't distinguish live broadcasts from DVDs, wedding videos, screensavers, YouTube, CatchUp, photo galleries etc. The "possible broadcast" outlined in paragraphs 5 and 6 could be any of these things.

As for the aerial/dish mentioned in paragraph 6, this is not evidence of evasion. The following is from a recent BBC FOI response:
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You asked the following question:

“Is there any legal/lawful objection to a cash-strapped household taking a 1 year “TV Licence Fee Holiday” by simply switching off their fully functional TV and ensuring that, without exception, it remains switched off for a 12 month period, thereby spending the entire year never using it to watch or record live programming as it is broadcast?”

The answer in response is:

There is no objection to a household taking this decision.

Legally, the ownership of a television receiver does not require a TV Licence. Therefore if you choose not to switch your television receiver on for twelve months, you do not need a TV Licence during that period. Under the Communications Act 2003, a TV Licence is only required to watch or record live television programmes.

I trust that this has provided a clear answer to your question.
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Living legally licence-free does not require the removal of old aerials and dishes.

In summation there is nothing of credit in this Search Warrant Application to support reasonable suspicion of illegal activity, yet it was granted nonetheless. Mr Heather was cleared of wrongdoing as no evidence of evasion was found.

This is the only Search Warrant Application I've seen, however I am led to understand that others have been granted on properties which have turned out to be empty!

I am concerned that Capita (the debt-collection agency used by the BBC to enforce licensing) are abusing the BBC's right under Section 366(1) of the Communications Act 2003 to apply for warrants, by applying for Search Warrants that constitute little more than 'fishing expeditions'.

I am concerned that Search Warrant Applications contain 'sexed up' and spurious 'detection evidence' that would not survive scrutiny in a court of law.

I am concerned that JPs are blinded by woolly science and mischievous wording in their consideration of these warrants, and that no effort has been, or is being, made to rectify this.

I would like all JPs to be made fully aware of the limitations of detection equipment, especially that such equipment gives the same positive reading when a DVD is being watched on a TV as it would if the TV were receiving live broadcasts. Search warrants should not be issued on the basis of such evidence.

I hope you concur with my opinion that Mr Heather had his right to privacy abused and would like to ensure that, with your help, such abuses are not allowed to continue. I also hope that you agree with my own view that making the choice to stop watching live TV should not attract corporate court-backed harrassment and home invasion.

Under the Freedom of Information Act, please provide as many examples of approved Section 366 Search Warrant Applications (where detector evidence was included) as you reasonably can obtain within the budgetary confines set out by the FOI act. Please, of course, redact any personal information contained therein.

Outside of this FOI request I would also appreciate your assurance that the concerns outlined in the rest of this letter are taken seriously, and that positive steps will be taken to educate your JPs.

Yours faithfully,

D Westwood

Dear Alex Lark,

I request an internal review.

Section 32 should not be applied if personal information is redacted and the search warrants in question are no longer active.

The issuing of a search warrant without reasonable suspicion is illegal under human rights law. If agents of the BBC are routinely applying for, and gaining, such warrants, the public needs to know.

The BBC's power to apply for a search warrant under section 366 of the Comms Act is such an unusual privilege for a corporation to have, it must be exercised responsibly every single time. Refusing this request would suggest there is no accountability whatsoever.

If this review is refused, as almost all are, I seek assurance that an investigation is carried out internally with regard to these SW applications to establish if the unlawful Heather warrant is the tip of the iceberg and abuse of section 366 is widespread.

Yours sincerely,

D Westwood

FAO: Anisul Haque
REF: FOI- 84902 (83809) OPR/055/002/002/112

Dear HMCTS Customer Service (Correspondence),

Thanks for your acknowledgement.

Here are some additional public interest notes to consider:-

The following excerpts are from the police guidelines on search warrant applications:
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(5) The applicant officer must provide all the relevant information, including that which undermines the application

In R (Energy Financing Team) v Bow Street Magistrates’ Court [2006] 1 WLR 1317, the court made it clear in a Practice Note that “it is the duty of the applicant to give full assistance to the [court] and that includes drawing to his or her attention anything that militates against the issue of a warrant”.

Non-disclosure in bad faith will automatically invalidate the warrant. Non-disclosure in good faith may invalidate the warrant, but only if the information that was not brought to the magistrate’s attention would have made a difference to the outcome.
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In the Section 366 application for a search warrant against Mr Heather (outlined in my original request), the Capita agent's affidavit claims that the detection equipment established:

"a TV receiver was in use receiving a possible broadcast
with a confidence factor of 97%".

This language seems to suggest a 97% probability that live programming was being watched.

We now know that detection equipment is unable to differentiate between a TV showing live broadcasts and other licence-exempt viewing activity such as DVDs, CatchUp, video gaming etc.

I believe that if magistrates were made aware of this they would not be signing such warrants. Failing to mention this in warrant applications must surely render them spurious, and a matter of grave public concern.

Yours sincerely,

D Westwood

FAI Anisul Haque:

I have contacted the Information Commissioner's Office helpline for advice on your Section 30 refusal. They were of the opinion that Section 30 is not a blanket exemption and that the search warrant affidavit examples I have requested are reasonable except in the event that:

a) Execution of the search warrant led to a prosecution.
b) The search warrant was signed by a magistrate at his/her home.

According to the ICO, Section 30 does not exempt information held by courts in situations where a prosecution is merely contemplated.

Please reconsider my request and supply as many examples of Capita's TV Licensing search warrant applications as can be reasonably afforded within the FOI act budgetary limits, redacting personal information where necessary, and (if and where necessary) excluding warrants that were signed in a magistrates home or warrants that, when executed, led to the instigation of criminal proceedings.

Yours sincerely,

D Westwood

FAO Anisul Haque:

I am resending the following message as the previous one was either lost or ignored. Please acknowledge receipt.
================================
I have contacted the Information Commissioner's Office helpline for
advice on your Section 30 refusal. They were of the opinion that
Section 30 is not a blanket exemption and that the search warrant
affidavit examples I have requested are reasonable except in the
event that:

a) Execution of the search warrant led to a prosecution.
b) The search warrant was signed by a magistrate at his/her home.

According to the ICO, Section 30 does not exempt information held
by courts in situations where a prosecution is merely contemplated.

Please reconsider my request and supply as many examples of
Capita's TV Licensing search warrant application affidavits (where detection evidence was included) as can be
reasonably afforded within the FOI act budgetary limits, redacting
personal information where necessary, and (if and where necessary)
excluding warrants that were signed in a magistrates home or
warrants that, when executed, led to the instigation of criminal
proceedings.

Yours sincerely,

D Westwood

FAO Anisul Haque:

Yes- Section 32, sorry.

The exemption only applies in the event of actual proceedings, not contemplated proceedings. The guidelines are clear on this.

On that basis, please supply the information requested within the set guidelines.

Yours sincerely,

D Westwood