Look at patterns of criminal offending, and one of the first things to stand out is the differences between men and women. Men dominate when it comes to violent and sexual crime: more than four-fifths of perpetrators of violent crime are male. Not a surprise when you consider that men are more likely to be physically and sexually violent than women: so far, so straightforward.
But for one of the most minor crimes – not paying for a TV licence – the pattern reverses. Women account for three-quarters of criminal convictions for watching live TV services or BBC iPlayer without a licence, and a huge chunk of all criminal convictions against women, one-third, are for non-payment of the licence. Are women really 50% more likely to engage in evasion than men, or are they getting disproportionately lumbered with convictions?
Most people probably regard their TV licence payments as a household bill. But it is treated very differently under the law. Falling behind with energy or water bills is a civil debt matter, where best practice involves providers working with people in debt to set up an achievable repayment plan, with county court judgments to enforce payment under civil law only used as a last resort.
Falling behind on your TV licence is treated far more punitively, as a criminal offence. Like many other minor criminal offences, it is not prosecuted by the independent Crown Prosecution Service, but in this case, by the BBC.
The BBC contracts licence fee collection and enforcement out to the private company Capita. So it is Capita to which these prosecution powers are delegated. It sends enforcement officers out to visit unlicensed homes: if they find people watching content without a licence, they gather evidence of the breach and submit it to their prosecuting department. Capita is supposed to prosecute as a last resort subject to the same tests as the CPS: it should only put a case forward if it is in the public interest, taking into account the personal circumstances of the individual including any extenuating circumstances.
Once Capita proceeds with prosecution, the case enters the single justice procedure, a fast-track process introduced in 2015 to deal with minor offences, through which the majority of all criminal prosecutions now take place. The courts write to the individual in question; they have 21 days to respond with a written guilty or not guilty plea. Cases go before a single volunteer magistrate: if the individual pleads guilty or does not respond, the magistrate convicts on the basis of the papers in a closed hearing and levies a fine of up to £1,000, plus any court fees (individuals pleading guilty can submit details of their financial circumstances).
There is a worrying lack of transparency. Capita prosecutors are not subject to the same checks and balances as the CPS: there is no independent inspectorate, no evidence to parliament, and very limited data about who is prosecuted. There are significant red flags: about 80% of people do not respond to letters from the courts inviting them to make a plea. We have no idea why, but some people report that the first thing they know of the process is when they are informed they have been criminally convicted. There is no option for people to argue that a prosecution would not be in the public interest based on their circumstances on receiving the initial letter; and an Evening Standard investigation has uncovered that prosecutors for TV Licensing do not even generally read mitigating information submitted alongside a guilty plea in deciding whether to prosecute is in the public interest.
What little information we have on who gets convicted comes from charities such as Appeal and Transform Justice, and the kind of court reporting undertaken by Tristan Kirk of the Evening Standard that has become a rarity. There are stories of people being criminally convicted despite the most extenuating of circumstances: a 65-year-old woman fined while she was looking after her brain-damaged son in hospital; a 62-year-old woman with mental health difficulties who was looking after a daughter with liver failure who had fallen behind with multiple bills.
The one thing we do have system-wide information on, though, is the huge gender-based disparities in the conviction rate. Under pressure, the BBC last year commissioned an investigation into why the burden falls so heavily on women: it is because women are more likely to head single-parent households; more likely to be home when an inspector visits; more likely to answer the door to an inspector; and more likely to be living in poverty or in low-paid work and struggling with bills. Moreover, men who answer the door are more likely to pass the query on to a woman who is home than vice versa. It is highly likely that similar factors mean disabled people and older people also end up disproportionately targeted.
This is the criminalisation of poverty, and during a worsening cost of living crisis. TV licence nonpayment does not in itself create a criminal record; but there is considerable stress involved in going through a criminal process as a result of not being able to pay a bill, with the knowledge that the ultimate sanction for non-payment of a court fine, albeit rarely imposed, is prison. These convictions can come up in enhanced safeguarding checks, required for jobs more likely to be done by women such as care work.
There are broader questions about the fairness of the single justice procedure, through which several other agencies such as the DVLA prosecute people for minor offences. The police were also empowered to use it to prosecute people for breaking Covid regulations, which ended up in huge fines being dished out for breaches of a new and complex area of law not well understood by police or public.
The BBC’s case for the current system of criminal sanctions is that it is an efficient way of reducing licence fee evasion. It’s hard not to feel some sympathy for the corporation in the wake of government-imposed licence fee freezes and funding cuts. But efficiency cannot come at the expense of the disproportionate criminalisation of women and people living in poverty. As the charity Appeal argues, nonpayment should be decriminalised and treated as civil debt.
• Sonia Sodha is an Observer columnist
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