TV licences and decriminalisation: has anyone noticed what happens in Scotland?
According to a report by The Guardian today, the newly-elected Conservative government intends to revive plans to decriminalise non-payment of the television licence fee. A small curiosity: something very similar to this seems to have happened in Scotland already, and no-one seems to have noticed.
Some background first. The extent to which people were being prosecuted for non-payment of the licence fee, and the amount of court time this accounted for, made headlines in 2013. A question was asked in the House of Lords as to the number of people prosecuted in magistrates’ courts in England (but only England) in 2012 for installing or using a television without a licence, an offence under s 363 of the Communications Act 2003.
According to the answer given, 181880 such prosecutions were brought that year. A report in the Telegraph suggested that this amounted for one in ten of all criminal prosecutions, while noting TV Licensing’s response that such cases were dealt with in bulk and took up relatively little court time.
At this point, an interesting point of divergence between English law and Scots law might be noted. In contrast to the position in England, TV Licensing have no power to bring prosecutions themselves in Scotland. All they can do is report cases to the procurator fiscal service for further action to be considered. So how often did procurators fiscal choose to prosecute this offence in 2012?
So I asked, by submitting a freedom of information request to Crown Office. Now, of course, Scotland has a much smaller population than England, so all other things being equal you would expect the number of prosecutions to be rather smaller - say perhaps, around one-tenth. About 18000.
The answer? In 2012, there were sixty prosecutions for TV licence evasion in Scotland. Not 18000. Sixty.
Why the difference? Well, Scottish prosecutors have a much wider range of powers than English ones, many of which are designed to allow them to keep cases out of court. One of these powers is the option of issuing persons accused of committing a criminal offence with a “fiscal fine” (formally, a conditional offer of a fixed penalty) rather than prosecuting. Following reforms in 2007, such an offer is deemed to have been accepted unless the individual to whom it is issued chooses to reject it, and they become liable to pay it. Fiscal fines can be up to £300. (In addition, procurators fiscal can attach an element of compensation to the offer, which can be as high as £5000. In principle, this could be used to require payment of the previously unpaid licence fee; I do not know whether this is done in practice.)
In 2012 - again, from the figures disclosed to me by Crown Office - 15,804 fiscal fines were issued in Scotland for TV licence evasion. Acceptance of a fiscal fine is not a criminal conviction, although records of these penalties are kept. If a person who accepted a fiscal fine commits an offence in the next two years for which they are convicted in court, the fiscal fine will be disclosed to the court and can be taken into account in sentencing for that new offence.
Unless prosecution practice has changed significantly since 2012 - which, given resource constraints, seems unlikely - prosecutions for TV licence evasion in Scotland seem very unusual. The data I have does not disclose the reasons for the sixty prosecutions taken in 2012, but the most likely explanation would seem to be that they are cases where the accused refused to accept the offer of a fiscal fine and/or a fiscal fine was considered inappropriate, perhaps because the accused had previously received a fiscal fine for TV licence evasion.
A few important points should be noted:
First, this does not mean that TV licence evasion has actually been decriminalised in Scotland. Prosecution policy could change at any time, and anyone who commits the offence remains liable to prosecution should the procurator fiscal consider that appropriate. They have no right to insist on a fiscal fine being issued instead.
Secondly, this does not provide a simple model for reform elsewhere in the United Kingdom. The Scottish practice has developed because of a general power to issue fiscal fines. It is not a deliberate response to the problem of TV licence evasion.
Thirdly, we do not know (publicly at least; TV Licensing may have their own views) whether the different practice in Scotland has any effect on rates of TV licence evasion in Scotland as compared to the rest of the UK. Even if it has not had such an effect, this might be simply because it is not well-known or understood. Certainly, the last letter I got from TV Licensing, when I lived in Edinburgh, warning me of the consequences of not paying the licence fee, did not mention the possibility of a fiscal fine, but advised me that I could be liable to interview under Scottish common law and prosecution before a magistrate. This would have been entirely impossible, as there are no magistrates' courts in Scotland aside from the soon to be abolished stipendiary magistrates' court in Glasgow, but it was heartening that they had at least thought about Scotland in drafting the letter.
These caveats aside, this marked difference in practice - and the fact that it appears not to have attracted any public attention - is a remarkable one.