The man who fought back against the BBC and won!

On Friday night we were joined on the show by Mr Michael Shakespeare who detailed his decade long fight against the corruption of the TV licensing system. Mr Shakespeare was found guilty of failing to pay for a TV licence and then subsequently appealed.

The grounds of the appeal were that the evidence against him was doctored and he subsequently won the case! Since then Mr Shakespeare says he is still harrased by Capita, the Licence Fee enforcement agency, despite them knowing full well he has no TV Licence. He talked in detail to UNN about how those responsible for trying to catch out licence fee ‘evaders’ are paid bonuses for successful prosecutions.

Please watch the full LIVE interview with Mr Shakespeare below and he also kindly allowed us to publish all of his court papers and submissions. This article is part of our ad free Premium Content section owing to time involved and would normally be available to subscribers only. In light of the importance of this however it is open to everyone to read and please consider becoming a subscriber to UNN to allow us to continue.

Michael refers to his battle as with that of the BBC Gestapo and e-mailed us saying:

Hope you dont mind.. I attached some documents as background reading.

Very significant is the fact that the BBC’s MAIN witness said he never saw the ‘image’, not ” I am not sure”, or “I cant remember”.

Hope that this helps.

Regards

Michael

20 September 2011, approx. 10.45 am

Basildon Crown Court

Michael Shakespeare v TVLA

Mr. Garth Hannfield, solicitor, for the TVLA: Your Honour, this is another TV Licensing case, another appeal from a Magistrates Court, and also against a conviction for using a television set without a licence contrary to S. 363 of the Communications Act 2003. This case, however, is more complicated than usual, involving some technical issues.

HHJ Saggerson: What is in dispute? Does the Defendant say he had a license, or does he say he did not use a TV receiver?

Mr. Hannfield: That he did not use a TV receiver. The dispute is whether his equipment was capable of receiving live TV programmes. We are calling two witnesses. One is Mr. Ian Doyle, the TVLA officer who visited Mr. Shakespeare’s premises to inspect the equipment. We are filing a video of that visit, as downloaded from YouTube. We are calling Mr. Peter Jones as an expert witness, who will assess the video and explain that it shows that the equipment has been used to receive TV broadcasts.

HHJ Saggerson: Mr. Shakespeare…….

Mr. Shakespeare: What happened, Your Honour, is that I disabled my TV receiving equipment to ensure it cannot be used for receiving ‘live’ TV broadcasts, and then wrote to the TVLA inviting them to come anytime to examine and test it to confirm that it cannot be used for receiving ‘live’ TV broadcasts. Mr. Doyle visited my house, examined and tested the equipment, and assured me he was “reasonably satisfied” I was not receiving ‘live’ TV broadcasts . Five months later, however, I was summoned on the basis of some YouTube video, where one frozen image in the frame of my TV set is said to prove that I had been receiving live TV broadcasts. The precise source of that video is unclear and also whether or not it has been tampered with. I dispute the admissibility of both the video and the expert report on it.

Judge’s directions: The trial to take place on 20 October 2011, and is estimated to take the whole day.

Prosecution to file the expert report, Section 9 witness statements, and all other evidence within 7 days, by 27 September. The Defence to respond and file the evidence by 30 September.

Mr. Shakespeare: Your Honour, which report are the prosecution going to file? There are a few reports which were sent to me. Prior to the Magistrates Courts proceedings. I wrote to the prosecution and the Court, pointing out mistakes in the report, and each time the report was changed to correct those mistakes. The original version of the report, the report that I was summons to Court to answer, displays bias and prejudice on the part of the expert.

HHJ Saggerson: This may well need to be considered by the trial judge to see what weight should be adduced to that expert evidence. Directions: Mr. Shakespeare to file the original expert report with relevant sections underlined in red.

Mr. Shakespeare: Your Honour, I have several applications to make. I want to challenge the admissibility of prosecution evidence, namely the video exibit, PJ1 and Mr. Jones report. The video is not properly sourced, it is just something downloaded from YouTube, and there is some evidence that it was edited. It is highly unreliable evidence and, in my submission, it is not relevant to these proceedings.

HHJ Saggerson. This is something you should raise at the trial. This may affect admissibility of evidence, or, if you lose on that point, how much weight the trial judge should adduce to that evidence.

Mr. Shakespeare. Further, I submit that Mr. Jones is not suitable to be an expert witness. An expert witness, as I understand it, is someone who is competent, impartial and unbiased. Now, Mr. Jones is someone who has been previously employed by the TVLA. I am disputing his impartiality and credibility, and seeking a full disclosure of the details of his employment with the TVLA and the payments he received from them.

HHJ Saggerson: Again, it is a matter to be considered at the trial whether this disqualifies him as an expert witness. Directions for now: Prosecution to disclose full details of Mr. Jones past and present employment by TVLA by 27 September.

Mr. Shakespeare: I also question Mr. Jones competence in the field where he purports to be an expert, and seek a full disclosure of his qualifications. The summary of his CV given in the report is grossly insufficient.

Judge’s directions: Prosecution to disclose Mr. Jones qualifications by 27 September.

Mr. Shakespeare: I also seek the disclosure of certain items from the prosecution’s schedule of unused evidence, namely (a) Mr. Jones draft reports, (b) e-mails between Mr. Jones and TVLA, this is because I feel that the prosecution may have assisted Mr Jones in preparing his reports and these items may contain evidence to that effect, and (c) the draft report by Mr. Doyle after visiting my house.

HHJ Saggerson: No, I will not make an order for disclosure here. Various things may be said in drafts; what is relevant is what they have produced eventually, and I am not satisfied drafts are relevant here. I am satisfied that e-mails of this nature should be kept confidential. Anything else?

Mr. Shakespeare: Lastly, Your Honour, I would like to raise this. In the Magistrates Court, this chap here gave evidence against me…

HHJ Saggerson: What chap?

Mr. Shakespeare points at Mr. Hannfield: This chap. He was sitting just a few feet away from me at the Magistrates hearing, he sat throughout the whole trial and heard all of the evidence before he gave his. I was summoned without a full disclosure of the allegations against me, and then he was called to give evidence to the effect that I had no TV licence, without any prior notice and without filing a Section 9 statement previously. The exhibit he produced was not labeled and was handed to me moments before this chap gave evidence so that I had no time to adduce the evidence, nor cross examine him properly, and I didn’t even know his name. I want him, as a witness, to file a section 9 statement.

HHJ Saggerson: Yes, I have directed the prosecution to file statements of all their witnesses by 27 September…. Mr. Hannfield….. Is it usual for the prosecution to give evidence against the defendant ? Did you give evidence in the Magistrates Court?

Mr. Hannfield: Yes, I am not actually prosecuting the case. I was allowed to give evidence presenting the computer record of the Defendant having no licence. Anybody from the TVLA could have given evidence about that.

HHJ Saggerson: Well, this may have been allowed in the Magistrates Court, but you will know that we are much stricter in this Court and such things would not be allowed. I must add that I do not even ‘officially’ know your name, as you have failed to sign in today, so I shall add a note for the trial Judge to expect evidence from ‘that chap over there’. Is it still in dispute that the Defendant had no TV licence?

Mr. Shakespeare: Yes. The only evidence they have presented on that, relates to a different date from that of the alleged offence – some two weeks before the alleged offence.

HHJ Saggerson: So, everything is in dispute here, as happens not infrequently with litigants in person. So I warn the prosecution: on 20 October, you will have to prove every point most strictly or suffer the consequences.

Mr. Hannfield: Yes, Your Honour.

HHJ Saggerson: And a warning to both parties. The whole day is allocated for the trial, and this means, among other things, that you must be quite ready for it by that date. On 20 October, any applications for a delay or an adjournment will go down very badly. Make sure you have prepared everything in time. If not, consequences may be quite serious when the costs order is made.

IN BASILDON CROWN COURT

APPEAL AGAINST CONVICTION (s. 108 of the Magistrates Courts Act 1980)

B E T W E E N : –

TV Licensing Authority

Prosecutor

-v-

Michael Shakespeare

Defendant

_________________________

Defence Statement

_________________________

I, Michael Shakespeare of ADDRESS am the Defendant in this case.

Background

Some time ago, I had read an article in the Sunday Times, which outlined details of how one couple watched TV content without the need to buy a TV licence. The article argued that the modern technology made the TV licensing increasingly out of date, as users could legally access the TV content on the Internet, without having to obtain a TV licence, and only with an insignificant delay. The article explained that if someone watched TV content after it had been broadcast, (a process called ‘time shifting’) that the content, being a recording, and watched ‘on demand’, as the term is known, would not require the purchase of a TV ‘licence’. The article is attached and marked MS1.
I decided to set up a similar situation to the couple in the article. The crux of the matter would seem to be the ‘receiving’ of ‘live’ broadcasts, so I took steps to ensure that the equipment that I owned would not be capable of receiving any live broadcast.
The first thing I considered was cutting the aerial lead, but I considered that merely cutting it would leave me open to the accusation that I had cut the lead immediately prior to any ‘inspection’ that I would allow TV licensing to make.
I then thought of removing the aerial totally from the roof, but considered this to be too dangerous.
I came up with the solution of removing approximately a 12 foot section of the brown aerial co-axial lead, by cutting it where it entered the loft on the left hand side of the chimney-stack and also cutting it where it exited the building at the back of the property. This was also to ensure that no one could easily re-join the two cut ends and so re-establish reception of ‘live’ broadcasts.
At this time I owned three pieces of ‘equipment’ that would be capable of receiving live broadcasts if connected to an aerial, namely:

1: A 15inch LG monitor, (fitted with a TV tuner) in the kitchen.

2: A 32inch Sony Bravia TV in the living room.

3: A Topfield 5800 PVR machine in the living room.

Item no 1, was never connected to an aerial at my address ever, apart from the fact that it was purchased as a pre-loved, (second hand), item from a local shop and had been at some time previously been connected and tuned in to the local transmitter.
Item no 1 was used exclusively as a monitor for my CCTV system and was connected to this system by a black co-axial cable. It was bought as a replacement for an older type CRT TV that did not have connections for the CCTV equipment apart from the co-axial socket.
The black co-axial cable was extended into the living room so that, if required, it could by plugged into the co-axial socket in the back of the Television ‘set’. This cable was always left unplugged for reasons that I will explain later on.
Item no 2, was previously used as a ‘receiver’, quite legally, whilst covered by the relevant ‘licence’, as was item no 3. I had found that by merely removing a section of aerial lead that both items 2 and 3 could no longer receive ‘live broadcasts’.
I then decided as an extra precaution, to convert the PVR from a recorder to a player.
I did this by disabling the ‘connectivity’ of the machine by soldering metal caps over all of the aerial connectors on the back of the machine. Exhibits MS2 and MS3
This was because I had tried to connect the black CCTV system co-axial lead to the connectors in order to record CCTV images but this had not worked, so in effect they were now redundant.
After taking these steps I wrote to TV licensing to ask them to confirm that my ‘setup’ no longer required me to continue paying for a TV licence.
In the letter I said that they were welcome to visit the property to test my system in order to verify that I no longer needed a licence, but that because of adverse press coverage regarding the conduct of ‘visiting officers’, namely that a TV licensing ‘officer’ a Mr David Clark pleaded guilty to assaulting a ‘customer’ during a ‘visit’ and that a Mr Richard John Llewellin a TVL ‘officer’ was found guilty of forging signatures and perverting the course of Justice, that the ‘visit’ would be filmed for my own safety and protection. Exhibit MS4
On the night in question at approximately 7pm, I was startled by a loud banging at my door, this had caused my dogs to rush to the door barking loudly. I was not expecting any visitors and so went to the window at the front of the living room to see who was at the door. A man who I now know as Mr Ian Doyle was waiting.
I called to Mr Doyle to wait whilst I put my dogs away for his own safety, as one of the dogs, a Staffordshire bull terrier, is particularly aggressive toward strangers.
The only safe place to contain the dogs was upstairs, so I caught Bonny, the Staffordshire Terrier, placed a collar around her neck and took her upstairs, the other dog followed quite placidly. This process had taken around 30 to 40 seconds and at this time I had no idea who Mr Doyle was, nor that he worked for TV licensing, so the purpose of my disappearance was to protect the visitor from danger, and for no other reason as may be suggested.
The prosecution makes much of this half-a-minute delay in my opening the door and hints that I disconnected my aerial during that time. If the prosecution persists in that version of events, I am prepared to produce my dogs before the court. Further, it was impossible to disconnect a loft aerial in such a short time.
The loft can only be reached by an access hatch at the top of the stairs.
Firstly a stepladder will have to be used to reach the loft access hatch and then the access panel will have to be removed. Then the loft ladder would have to be lowered and then the loft ladder would have to be used to access the loft, after which the ‘secret aerial’ would then be disconnected.
I produce exhibit MS5 which is a photograph of the loft access and the two ladders.
I have timed myself performing this function up to the ascent into the loft. The whole process takes around 3 minutes including fetching the stepladder from its storage cupboard, and this makes a considerable noise as both the stepladder and the loft ladder are aluminium. Mr Doyle reports no such noises so that even if it were suggested that another person performed this action, then it would surely have been noticed by Mr Doyle at the time.
Upon returning to the front door I opened it, and Mr Doyle identified himself as a TVL enforcement officer by producing an ID card, and I invited him into the hallway. Mr Doyle then closed the front door and positioned himself by the living room door just to the right.
Mr Doyle was quite polite, and although I had assessed that he would probably not attack me, I proceeded with my original plan to video record his conduct during the visit, just to be sure. After I began filming, Mr. Doyle immediately objected to that as he did not wish his face to be filmed, but I reminded him that I had informed his employers that any visitor would be filmed and that by accepting the invitation that he had given his, implied, consent and that if he still objected to the filming that I would stop filming immediately and that he was free to leave at any time.
Mr Doyle then went straight to where the TV was set-up in the front room and powered up the TV set, the DVD player and the Topfield box, by switching on the main power switches where the appliances were plugged in. He then began to examine and test the equipment for a signal. He began by operating the controls on the front of the PVR unit.
He spent some moments looking at the back of the DVD and the PVR machine and asked me what each unit was. I explained that the silver box was the DVD player and that the black box was a PVR recorder. After I showed him the metal caps where I had disabled the aerial sockets, he refers to the PVR as a video player, which is now technically correct.
There is a discrepancy on this matter between Mr. Doyle’s first and second statements. In his second statement, produced at around the same time as the summons was sent to me, Mr Doyle changes his mind and states that the ‘player’ mentioned in his first statement as agreed with me on the actual ‘visit’, is now a ‘recorder’.
In Mr Doyles second statement he refers to an edited version of my filming in which he states that the first few minutes of the filming are edited out. To my recollection, the events above may represent the parts that were edited from that version of the video.
At some point while Mr. Doyle was examining my equipment, I enquired whether he was sure he was technically competent to verify whether or not it could be used for receiving live TV broadcasts. Mr. Doyle assured me he had the necessary expertise.
After examining all my equipment, Mr. Doyle assured me he was “reasonably satisfied” that it could not be used for receiving live TV broadcasts.
I offered to send a copy of the video of his visit to the TV Licensing. Mr. Doyle did not indicate any interest in that. Since I was not assaulted, like I had feared, nor had Mr Doyle cautioned me, nor informed me of any breach of the Communications Act, nor warned me of any intended prosecution, I felt it unnecessary to share the video with the TVLA .
After Mr. Doyle’s visit, I heard nothing from the TVLA regarding my ‘licensable status’ for over five months, until I was suddenly summoned to appear before the Magistrates Court.

Admissibility of prosecution evidence: the video

The prosecution seeks to adduce the video marked as Exhibit PJ1. I dispute the relevance and admissibility of that evidence.
The video purports to be my recording of the visit to my house by Mr. Ian Doyle on 2nd August 2010. The prosecution asserts they have downloaded the video from YouTube. One frozen frame image in that video is said to show a picture on the screen of my television set to be identical to an image broadcast by a TV channel shortly before the visit. The prosecution’s allegation that I received live TV programmes depends entirely on the presence of that image on the video. The video, together with the expert report by Mr. Peter Jones who examined it, forms the crux of the prosecution case against me.
I dispute the relevance and admissibility of this evidence for the following reasons.
Firstly, this is not the original video. Copies of the video have been circulating on YouTube and other similar web-sites for about a year in different versions. Some include the crucial frozen image and some do not. A different version of the same video without the frozen image, downloaded from YouTube user IAMANGRYDAVE at URL http://www.youtube.com/watch?v=9VQXDfY2dkk is presented as Exhibit V1. and another version from user Mr666Crapita at URL http://www.youtube.com/watch?v=H7c5izGm7i0. presented as Exhibit V2 on a CD disk labelled MS8
The prosecution has produced no evidence that their video is a true record of Mr. Doyle’s visit. Indeed, one year after the visit, that appears impossible to verify. There is every possibility that the video has been tampered with before (or after, for this matter) it was downloaded. Indeed, even Mr. Doyle’s own statement mentions the fact that the video has been “edited”. Therefore, the video is extremely unreliable as evidence, and consequently its probative value is so low that it cannot be considered relevant.
I do not know who performed the edits or why, but it may be relevant to state that up to this time, that I have never supplied an unedited copy of the filming to anyone from TV licensing, nor have I showed an unedited version to anyone who is employed by TV licensing. I understand that unverified edited copies of the filming are being circulated on the internet on various video-sharing sites without my permission. I have managed to disable some of the user accounts by complaining directly to the hosting sites regarding copyright theft of my material.
Secondly, even the original video, let alone an “edited” copy coming from some unknown source, would not be the best evidence. Under the best evidence rule, the TVLA would have to arrange a visit by a competent expert to my house to examine the actual equipment. I had invited them to do so, and asked Mr. Doyle for assurances that he was competent, which he gave me. At the time, Mr. Doyle assured me he had found no evidence of my receiving, or being capable of receiving, live TV broadcasts. Only the results of Mr. Doyle’s examination satisfy the best evidence rule. An expert examination of some unreliable video fails to satisfy the said rule and is therefore inadmissible.

Mr. Peter Jones

Further or in alternative, I dispute the admissibility of Mr. Peter Jones’s ‘expert report’ and that Mr. Jones qualifies to be an expert witness.
At the mention hearing on 20 September, the Court gave directions for the Prosecution to disclose, by 27 September 2011, the following material:

(a) all information about the past and present employment of Mr. Peter Jones by the TVLA and/or Capita and the payments received by said Mr. Jones from the said entities; and

(b) the full information about the qualifications of Mr. Peter Jones which the prosecution says make him qualified to testify as an expert witness in this case.

No such disclosure has been made, and the prosecution has provided no explanation for that.
I demand an immediate disclosure of the said material, and I respectfully invite the Court to draw appropriate inferences from their reluctance to comply with the disclosure order by the Court.
Mr. Jones is not an expert witness because he is biased and because he lacks sufficient expertise in the relevant fields.
At the trial in Magistrates Court, Mr. Jones admitted on cross-examination that he had been employed by the TVLA. Hence, he is financially dependant on one of the parties in these proceedings and cannot be considered neutral. Further evidence on this matter may come to light if and when the prosecution makes a disclosure in accordance with the court’s directions.
Further bias is displayed in the original version of Mr. Jones’s report, Exhibit PJ2, where he writes that he knows me as someone campaigning against TV licensing.
The comment is clearly most inappropriate for a purely technical expert, which Mr. Jones purports to be. It would appear that the report was written with a view to the litigation, the specific aim being to prejudice my case and manufacture evidence of my guilt. After I pointed out a false statement of fact in my letter to the TVLA (Exhibit MS6), and after I mentioned the inappropriate remarks to the prosecution counsel at one of the Magistrates Court case management hearings, the report was changed with the said remarks omitted.
As will be shown further below, Mr. Jones chooses to give such explanations of fact which best suit the prosecution’s purposes and fails to mention the existence of alternative explanations.
At the Magistrates Court hearings, Mr. Jones further attempted to mislead the court by suggesting that the Electronic Program Guide is in fact a ‘live broadcast’
As for Mr. Jones’s qualifications, a brief summary of his CV given in the beginning of the expert report is entirely insufficient to establish his expertise in the relevant fields. The prosecution has defied the court direction in failing to disclose additional information on the matter. In the circumstances, Mr. Jones cannot be considered a competent expert witness.

Mr. Jones’s expert report: the substance

In his revised report and additional statement, Mr Jones says that information displayed on the screen in a video that I had provided to TVL showing some Electronic Guide Information, was “transmitted immediately preceding the shooting of the video”.
The EPG as it is more commonly known , is widely available on many websites, and is downloadable onto the Topfield 5800 machine directly from these sites via a USB connection Exhibit MS7
He backed this up by saying that the transmitter frequency was shown on the screen, but as can be clearly seen in his revised statement, that if this WERE a live broadcast the two signal strength bars would be showing some evidence of signal strength and NOT completely empty as shown in his Exhibits PJ7 and PJ5.
He gives opinion on the disconnected black co-axial cable present in the living room, Exhibit PJ4, that the cable could ONLY reasonably be connected to an aerial whereas the cable COULD be and sometimes IS connected to the CCTV system thereby failing in his duty as an ‘independent’ expert, to give alternative explanations where they may exist.
Mr Jones claims to have downloaded the video in FIVE parts from the SAME internet URL. This, quite bluntly speaking CANNOT be true. A URL is a unique reference to data that is stored on the internet, so that if Mr Jones downloaded the video in five parts, then there would be five different internet URL’s. If the prosecution wishes to rely on the YouTube video as an accurate account of the visit, then Mr Jones should supply the ‘missing’ URL’s so that the defence can properly replicate the tests that he performed in the downloading and examination of this ‘evidence’.

Further comments on the contents of the video

The following comments relate to the contents of the video and are only relevant if my application to exclude the video fails. I do not feel it is necessary to go into minute detail of Mr Doyles examination and testing of the equipment but do feel that a few points should be addressed.
Mr Jones points out that the disputed image is ‘distorted’ but explains this away by suggesting that the ‘distortion’ is due to the screen settings on my TV set, Mr Jones has never examined my TV set first hand, nor watched any ‘live broadcasts’ on it, nor played the video Exhibit RLM1 on my system in order to determine the exact levels of this ‘distortion’. If you compare the two still images Appendix 6, Screenshots 1 and 2, you will see that in Screenshot 1, as compared to Screenshot 2, the left-hand side of the image is ‘cropped’ up to the first mans shoulder, the bottom of the image is ‘cropped’ up to the second mans elbow, the right-hand side is also ‘cropped’ up to the second mans elbow. Mr Jones also fails to explain why the man on the right side of the image is wearing a totally different colour shirt.
In effect Exhibit Appendix 6, Screenshot 2 is false evidence, because some portions of the screen labelled ‘visible’ are quite clearly NOT VISIBLE in Mr Jones video Exhibit PJ1.
I would suggest that the ‘distortion’ is due to fact that the video has been altered in some way, possibly ‘cropped’ to fit the small area of the visible screen of the TV set in the video, as shown in Screenshot 1.
The CCTV system was installed for two reasons. One was to monitor the side of the property where my motorcycle is kept and the second was to monitor the ‘guest’ bedroom.
This needs further explanation.
My youngest son has a medical condition, coarctation of the Aorta, this is due to a defective tricuspid valve in the opening of the Aorta.
This has resulted in a further defect where the increased pressure in the heart has caused a ventricular septal defect between two of the chambers of the heart.
This condition, although treated by surgery, is still potentially life threatening and the video camera is set up to monitor my son whenever he stays over.
At the time of Mr Doyles , (unexpected) visit, my partner, (who was in the upstairs bathroom when Mr Doyle first knocked on the door), was now in that very room, (the ‘guest room’), possibly in a state of undress. I was reluctant to show Mr Doyle the CCTV system for two reasons.

1: That CCTV cannot possible be used as a ‘television receiver‘ as defined in the Communications Act 2003 and Communications (TV Licensing) Regulations 2004.

2: There was a real possibility that Mr Doyle would see my partner undressed.

When Mr Doyle selected the channels for the monitor in the kitchen I immediately noticed that he had failed to select the Analogue Tuner, (the monitor has two tuners, Digital and Analogue), and because the CCTV is set to the Analogue tuner there was no chance that he would unwittingly see any personal images.
Mr Doyle could not get the monitor to produce a ‘live TV broadcast’ so I felt it very intrusive and unnecessary for him to ask for a demonstration of the CCTV set-up, and made my feelings known.
Mr. Doyle was acting on behalf of a public authority and as such, was obliged under S. 6 of the Human Rights Act 1998 to exercise his functions in a way compatible with my rights under Article 8 ECHR. It was perfectly reasonable and lawful for me to restrain him from breaching the Section 6 limits.
The second point to address is the various ‘leads’ used in my set-up.
The first lead referred to by Mr Doyle, I stated was for connecting to a computer, and was a 15 pin video lead for using the Sony Bravia as a computer monitor and was unplugged because a smaller Dell monitor was being used instead.
In the front room there is only ONE co-axial cable.
This is very significant because an aerial lead is always made up from co-axial cable.
It is NOT semantics to argue the point of the co-axial cable, because, logically, an AERIAL co-axial cable would lead to an AERIAL, and as this particular cable lead to CCTV equipment I felt that Mr Doyle was trying to make me falsely admit that the cable ran to an installed aerial.
The ONE and only co-axial lead in the front room was the black co-axial cable that had been extended from the CCTV system and is always left hanging loose to prevent accidental viewing of the spare ‘guest room’ which could be potentially embarrassing..
When this cable is used, it is connected to the co-axial socket built into the Sony Bravia TV.
I am aware of the suggestion that a ‘secret aerial’ could have been connected to the system, but it is important to note that there was no other co-axial cable present in the living room to carry a signal from the ‘secret aerial’, that the co-axial cable was not connected to any equipment in the living room and no live signal could be obtained by any of Mr Doyles efforts, Mr Doyle being by his own admission a competent, trained, experienced officer.
Mr Doyle never mentioned either an aerial lead or a co-axial lead connected to any of the equipment present in the living room.
Throughout the visit Mr Doyle became increasingly irritating.
He asked me if I played ‘games’ which I thought was quite irrelevant.
He asked me what did I ‘download’ from the internet.
Mr Doyle insisted on looking for ‘satellites’, and resisting the temptation to hand him a telescope, I took this to mean that he wished to look for a satellite system, such as the Sky system and so allowed him to see the garden area.
This was directly contrary to the reply I had received, (Exhibit MS8), from TV licensing stating

“Please be assured that this is a routine visit and will take no more than a few minutes. Only the main living area will be inspected, for example the living room or lounge.”

After asking what equipment I had in the property, and I had told him that there was no other equipment other that that which was clearly on display, and that there was no other equipment upstairs, he asked several times to inspect the upstairs area.
This was a direct insinuation that I was lying and I felt very insulted by this in my own home.
If there had been any other equipment it would have been similarly disabled.
I found that the visit did not last a “few minutes”, but was closer to a half hour in duration, and that Mr Doyle was quite insistent that most of the areas of the property including the garden, were to be ‘inspected’, contrary to the reply in the letter from TVL stating “ Only the main living area will be inspected,”.
I rather sarcastically suggested that the toilets should be ‘inspected’ too.
This was because the ‘visit’ was becoming increasingly more intrusive, and on finding no evidence for a ‘live broadcast’, which I believed to be the point of the visit, that there was no reason for him to stay, and so I asked him to leave.
In the light of the events it would have been prudent of TV licensing to take up my open offer to return to the property at a more convenient time for us both.
I would then have been happy to demonstrate the CCTV system even though it is not legally defined as ‘receiving equipment’, and with myself now knowing that the visit would be very intense, involving a thorough search of the whole house including the unconverted loft area and the garden, that they could have then cleared up any points such as the ‘hidden aerial’ theory.

Prosecution disclosure

I reiterate my request of an immediate disclosure of all material related to Mr. Jones’s qualifications and employment, including any payments received from the TVLA/Capita, in accordance with the Court’s directions of 20 September 2011.
Further, under Part 22 of the Criminal Procedure Rules, the Prosecution is now required to disclose all previously undisclosed material which may assist my defence as set out above. In particular, I seek the disclosure of the following material:

– Any contemporaneous reports made by Mr. Doyle about the results of his visit to my house (Item 3 in the Schedule of unused evidence). The visit was the only proper examination of the facts relevant to these proceedings, and resulted in Mr. Doyle’s being “reasonably satisfied” of my innocence. Obviously, all his statements to this effect are very relevant to my defence. There are discrepancies between Mr. Doyle’s two statements presented to this court, and on this basis, I doubt his credibility as a witness, and seek disclosure of his available previous statements/comments on the matter.

– Correspondence between TVLA and Mr. Jones (Item 6 in the Schedule of unused evidence) insofar as relevant to the issue of Mr. Jones’s bias;

– Draft reports of Mr. Jones’s report (Item 7 in the Schedule of unused evidence) insofar as relevant to the issues of Mr. Jones’s bias and lack of expertise

Michael Shakespeare

29 September 2011

A200110181
IN BASILDON CROWN COURT

APPEAL AGAINST CONVICTION (s. 108 of the Magistrates Courts Act 1980)

B E T W E E N : –

TV Licensing Authority

Prosecutor

-v-

Michael Shakespeare

Defendant

________________________________________

Amended Skeleton Argument of the Defendant
________________________________________

Trial management
1.   The Appellant will submit that the conduct of the private prosecutor throughout these proceedings (both in Magistrates Court and in this Court) amounts to abuse of process. The Appellant will invite the Court to allow the appeal on these grounds without considering the prosecution case.
2.   Further or in alternative, it will be submitted that most of the prosecution evidence is inadmissible on various points of law, but also because it has been improperly/unfairly obtained, fabricated, and/or manipulated by the prosecutor. The Appellant will seek the exclusion of all such evidence. If he succeeds in that, the Prosecution Counsel may like to consider whether there is any reasonable prospect of the appeal being dismissed, and accordingly, whether to proceed with presenting the prosecution case.
3.   There is a significant overlap between the Appellant’s arguments on abuse of process and on the inadmissibility of prosecution evidence. The Appellant will say that the fabrication, manipulation, and non-disclosure of evidence by the Prosecution were parts of the abuse of process.
4.   The following order of the trial is therefore proposed:
5.   The abuse of process application and the admissibility of prosecution evidence should be considered together. After the submissions by the parties, the Court should decide whether to allow the appeal for abuse of process, and if not, what (if any) items of prosecution evidence should be excluded.
6.   In view of that ruling, the prosecution should then consider whether it still has a prima facie case. If the prosecution chooses to proceed, they should then present their case.
7.   Upon the closure of the prosecution case, the Appellant is likely to make a submission of no case to answer.
8.   If that fails, the Appellant’s case will then be presented.
9.   It is submitted that this order of proceedings is the most efficient and likely to save considerable time and costs.

PART 1 – Abuse of process (general)
10.   It is submitted that the prosecution has abused the process both of the Magistrates Court and of this Court and the appeal should be automatically allowed for this reason.
11.   It was held in R (Ebrahim) v. Feltham Magistrates Court [2001] 2 Cr. App. R. 427, 433, para 18 that abuse of process arises not only where a fair trial is impossible, but where it is unfair to try the Defendant at all. In relation to such cases, para 20 explains:
In these cases the question is not so much whether the defendant can be fairly tried, but rather whether for some reason connected with the prosecutors’ conduct it would be unfair to him if the court were to permit them to proceed at all. The court’s inquiry is directed more to the prosecutors’ behaviour than to the fairness of any eventual trial. Although it may well be possible for the defendant to have a fair trial eventually, the court may be satisfied that it is not fair that he should be put to trouble and inconvenience of being tried at all.
12.   In para 31, it was held that where the abuse of process occurred in the Magistrates Court and the conviction is then appealed to the Crown Court, the Appellant’s “appropriate course, if any unfairness cannot be corrected in a fresh hearing on appeal, will be to invite the Crown Court to allow his appeal and quash the conviction on the grounds that, even if he made no complaint at the time, the trial in the magistrates’ court was not a fair one, and that any such unfairness is irremediable.
13.   In summary, the grounds for this application are as follows:
(a)   The prosecution is politically motivated, as the prosecutor believes the Appellant is an “anti-TV licensing campaigner”. The prosecution is attempting to abuse the Courts as a platform for a political attack on the Appellant and to persecute him for a political reason.
(b)   The prosecutor led the Appellant to believe that the visit to his house on 2 August 2010 would not result in a prosecution. In reliance on that undertaking, the Appellant discarded crucial evidence exonerating him: the original video of the visit. The prosecution was brought just before the expiry of the statutory time limit on the basis of an edited copy of the same video. Reliable evidence is no longer available due to this unjustified delay.
(c)   The prosecution case is without merit and fails the evidential test. There is no reasonable prospect of conviction at a fair trial. Prosecution is brought solely to put the Appellant’s life in jeopardy as a punishment for his alleged political activities.
(d)   The litigation conduct by the prosecution has been grossly improper throughout the proceedings, incl. fabrication of evidence, misleading the Court, malicious non-disclosure, a breach of a disclosure order by the Court, pressurising the Appellant to change his evidence, and repeated attempts to have a trial by ambush.
(e)   A private company, Capita Business Services, has usurped the statutory rights of the public prosecutor for TV licensing cases, contrary to Part 4 of the Communications Act 2003.

Abusing the Court as a political platform
14.   This case results from a private prosecution brought by Capita Business Services, the company contracted by the BBC to perform the BBC’s statutory duties of the TV Licensing Authority. In principle, of course, a private prosecution is as legitimate as a public one. However, it is submitted that the status of the prosecutor in this case should be subject to some scrutiny. Bona fides of a private prosecutor, whose primary motivation is profit rather than public interest, cannot be taken for granted.
15.   In recent years, there has been widespread criticism of the system of TV licensing as such, and especially of the heavy-handed tactics adapted by Capita as the collectors of the licence fee. A number of high-profile figures have announced they would refuse to pay the licence fee as a matter of principle, and even more importantly, a strong political case is being made for an abolition of the licence fee in 2016. More moderate critics propose that the TVLA functions should be taken away from Capita. In these circumstances, Capita’s long-term and medium-term profits depend directly on its ability to successfully stifle such criticism.
16.   In the present case, both in Magistrates Court and in this Court, the Prosecution has repeatedly stressed that the Defendant is allegedly a known critic of the TV Licensing. This point was made, most inappropriately, in the earlier versions of the expert report by Mr. Peter Jones. That was eventually redacted after the Appellant pointed out the impropriety.
17.   The e-mails between the prosecution solicitor and the expert show clearly that he was instructed on the basis of the Defendant being an “anti-TV licence campaigner”.
18.   More recently, the Prosecution seeks to adduce a statement by Mr. Hannaford, the solicitor representing the TVLA in these proceedings, enclosing a number of entries allegedly posted by the Defendant at an ‘anti-TV Licensing web-site’.
19.   It seems likely that the political enmity displayed here is what is really behind this prosecution; or even that the case against the Defendant has been fabricated to ‘punish’ him for his perceived anti-TVLA stance. As will be shown below, the prosecution case is totally without merit, and if the prosecutor properly applied the evidential test, it shows no reasonable prospect of conviction. The conviction in the Magistrates Court was on the basis of “circumstantial evidence” only and resulted from abuse of process.
20.   HHJ Mitchell has noted ‘a considerable element of vindictiveness’ by the prosecution in this case. As will be shown below, the conduct of litigation by the prosecution has been grossly improper at many instances. One is tempted to conclude the prosecution is so desperate to win this case that they are prepared to abandon any considerations of fairness, even to mislead the Court or abuse its process.

Unavailability of evidence
21.   In 2010, the Appellant disabled all his television receiving equipment. He then wrote to the TV Licensing, inviting them to visit his house and satisfy themselves that his equipment is incapable of receiving live TV broadcasts. The visit by Ian Doyle, a TVLA visiting officer, took place on 2 August 2010. The Appellant filmed the visit with a video camera. He asked Mr. Doyle whether he had sufficient technical expertise for the task and was assured that to be the case. Having examined the equipment, Mr. Doyle confirmed to the Appellant he was “reasonably satisfied” his equipment could not be used to receive live broadcasts. A clear implication was that the Appellant did not need a TV licence.
22.   Copies of the video of the visit were then shared with a number of Appellant’s friends and anti-TV licensing campaigners. Some of them were posted, in different versions, on video-sharing web-sites.
23.   The Appellant, who was led to believe that the issue with the TVLA had been resolved in his favour, discarded the original video.
24.   Five months later, the TVLA brought a prosecution against him in Magistrates Court, on the basis of one of the versions of the video as downloaded from YouTube. It is alleged that a frozen image, visible on the screen of a TV set filmed in the video for a few seconds, shows the Appellant had been receiving live broadcasts. The frozen image is absent from other versions of the same video. Since the original has been discarded, it is impossible to ascertain which version of the video is genuine.
25.   The prosecutor’s implied undertaking not to prosecute has led the Appellant not to preserve crucial evidence of his innocence. The subsequent delay made it less likely that the evidence would still be available. See R (Ebrahim) v. Feltham Magistrates Court [2001] 2 Cr. App. R. 427. See also the CPS Legal Guidance on abuse of process, p.p. 6-7.
26.   The prosecution was brought just before the expiry of the statutory time limit. The Appellant was never interviewed and given an opportunity to explain the matter to the investigator/prosecutor.

Non-disclosure of evidence
27.   Central to the Prosecution case is the expert evidence of one Mr. Peter Jones, which purports to prove that the version of YouTube video examined by Mr. Jones shown the Appellant had been receiving TV broadcasts.
28.   Throughout these proceedings, the prosecution maliciously attempted to evade disclosure of highly relevant evidence likely to undermine its case, and especially Mr. Jones’s report, for example:
29.   Before the report was commissioned, Mr. Jones had worked for the TVLA as a consultant and was paid £16,675.00 (incl. VAT) for 2 days of work. Under Toth v Jarman [2006] 4 All ER (CA), it was a duty of the prosecutor to disclose the details of a potential conflict of interest as early as possible. It is impossible to maintain that the requirement of impartiality of expert witnesses, or the rules of disclosure, should be less stringent in criminal proceedings than in civil proceedings.
30.   The prosecution took no steps to disclose Mr. Jones’s potential conflict of interest. The fact that Mr. Jones worked for TVLA only came to light on cross-examination in Magistrates Court. In this Court, the Appellant successfully applied for a disclosure order. The prosecution ignored the disclosure order by this Court. It was only after a second disclosure order that the details were finally disclosed.
31.   Mr Jones stressed in his CV, and also in his witness statement of 30th November 2010, that he was “MBA qualified”, but failed to mention that all his qualifications and experience are in Geography, Marketing, and Management. In his CV and on cross-examination in Magistrates Court he misled the Court to believe he was a technical expert. The prosecution took no steps to correct that false impression before a disclosure order was made in this Court.
32.   The e-mails between the TVLA solicitor and Mr. Jones, and the draft expert reports, significantly undermine the credibility of the expert evidence. In particular, the material reveals:
33.   That Mr. Jones and the prosecution solicitor had known each other personally and were on first-name terms;
34.   That when the solicitor approached Mr. Jones, he made it very clear what the future expert report needed to prove, anticipating the crucial conclusions of the future report;
35.   That the initial examination was conducted by another expert from the same company, Mr. Ross. He was then replaced by Mr. Jones. No details of the initial examination by Mr. Ross were ever disclosed. No such material is included in the schedules of undisclosed evidence.
36.   That the original letter of instruction was sent on 15 September, and not disclosed or included in the schedule of undisclosed evidence;
37.   That the original draft report was written jointly first by Mr. Ross and Mr. Jones and then completed with an assistant, Mr. Maguire, and was intended as their joint report;
38.   That the report was significantly edited by the prosecution solicitor;
39.   That earlier drafts display Mr. Jones’s bias against the Appellant. For example, at p. 26, he states in a draft report: “The brief I have is based around proving a case, not defending a case and my evidence and responses are laid out demonstrating where I believe this is possible”.
40.   Nevertheless, the material was not disclosed to the Appellant either in Magistrates Court or in this Court. In this case, the Appellant’s first application for disclosure failed. After the expert’s conflict of interest became known, the Appellant made a second application for disclosure of the material. His Honour Judge Mitchell ordered the prosecution Counsel to review the undisclosed evidence again. His Honour indicated that he expected the draft reports and e-mails with the expert to be disclosed. Subsequently, the disclosure was made.
41.   All in all, it is clear that the prosecution has been far more economical with disclosure than is proper in the circumstances. One can only speculate what else a proper disclosure would have revealed. No time is left for a further investigation by the Appellant. To proceed in these circumstances would be an abuse of process.

Trial by ambush
42.   In Magistrates Court, the Defendant made a submission of ‘no case to answer’ on the grounds that the Prosecution failed to prove he had no TV licence. The Prosecution was then allowed to re-open their case. The instructing solicitor for the Prosecution, Mr. Hannaford, then went to the witness box to give evidence – after observing the whole trial and, of course, without any prior service of a Section 9 statement. When the issue arose at a mention hearing, His Honour Judge Christopher Mitchell commented it was his immediate impression that the events in Magistrates Court constituted an abuse of process.
43.   The Prosecution then repeatedly attempted to mislead the Court through Mr. Hannaford and then Mr. Hoskins to believe the issue had been agreed in the Magistrates Court – an assertion plainly contradicted by documentary evidence. No criticism is directed at Mr. Hoskins, who obviously received false instructions.
44.   While the course of the Magistrates Court trial is usually not relevant in a Crown Court appeal, it is entirely proper to consider them in an abuse of process application: R (Ebrahim) v. Feltham Magistrates Court [2001] 2 Cr. App. R. 427, 433, para 20.
45.   It was held in Jolly v DPP that while the Magistrates Court had discretion to permit a re-opening of the prosecution case, that discretion “would be sparingly exercised” and “the court would look carefully at the interests of justice overall, and in particular, the risk of any prejudice whatsoever to the defendant”. The CLR commentary suggests that “prejudice” here arises “where the defence might have been differently conducted if the disputed evidence had been given when it should have been”. The present case is clearly outside what is permitted in Jolly v. DPP: the Appellant, having noticed that the prosecution omitted to prove one of the two basic elements of the offence, had been aiming for a submission of no case to answer all along. He did not have sufficient time to review the evidence (a database print-out) and, in fact, did not understand it. Allowing a re-opening of prosecution case in such circumstances would have diminished the right to a submission of no case to answer to a vanishing point. In any case, Jolly v DPP does not authorize giving evidence by a prosecution solicitor who had observed the whole trial. Further or in alternative, ratio dissedandi of Jolly v DPP is the ‘implicit criticism’ of the defence counsel for “keeping his powder dry”. It is submitted Jolly v DPP cannot be used against a litigant in person, who cannot be expected to know and abide by the counsel’s duties.
46.   In this Court, the Prosecution attempted to ambush the Defendant with a considerable volume of new evidence and a fundamentally new strategy of proving their case (Mr. Hannaford’s second and third statements and Mr. Shirley’s statement). All that evidence is inadmissible multiple hearsay, its relevance is questionable, and its prejudicial effect is considerable. The statements were made well after the deadline set in the Case Management directions by the Court and after the service of the Defence Statement. In the case of Mr. Shirley’s statement, it was only made and served after the original version of this Skeleton Argument was served on the prosecution. In the case of Mr. Hannaford, he significantly changed his evidence after the service of the Skeleton Argument. An evidential Ping-Pong of this kind is totally unacceptable in criminal prosecution. It represents an abuse of process. Further or in alternative, all the prosecution evidence served after the primary disclosure is inadmissible.
47.   Mr. Hannaford also tried to put pressure on the Appellant to change his evidence, while discussing the case outside the court after a mention hearing.

Prosecution ultra vires Communications Act 2003
48.   In Ellis v Dubowski [1921] 3 K.B. 621, the Cinematograph Act 1909 gave a County Council the power to licence public exhibition of films. The County Council effectively delegated that power to the British Board of Film Censors, “an unofficial body appointed by firms engaged in letting out films on hire, to act as censors of films and so to protect the interests of the trade”. It appears from the judgement that the Board was generally held in high esteem, unlike the delegate in this case (Capita); but it still could be influenced by commercial considerations and not exercise the powers solely in the public interest. The Defendant showed a film without a licence, and was consequently accused of an offence under Cinematograph Act 1909. The justices refused to convict him on the grounds that the delegation of powers to the Board had been unlawful. On appeal by case stated, the decision of the justices was upheld by the Court of King’s Bench (Lawrence CJ, Avory J and Sankey J).
49.   There is a centuries-old principle whereby a public authority cannot disable itself by contract from discharging its ‘public interest’ powers and duties. Any contract which purports to have such effect is void in law: Ayr Harbour Trustees v Oswald (1882-83) L.R. 8 App. Cas. 623, 634 (HL). Hence comes the grave difficulty in the public authorities contracting private companies to exercise their statutory duties. Generally, the public authorities avoid making such contracts without an express statutory authorisation. Thus, before the government began contracting private companies to run prisons, it sought express statutory powers to do so (Criminal Justice Act 1991, S. 84).
50.   In this case, Part 4 of the Communications Act 2003 confers the TV licensing powers on the BBC, but does not include any right to sub-contract or sub-delegate those powers to another organisation. The 1991 Responsibilities Agreement between the Home Office and the BBC was transitional in nature and has since been superseded by the statute, the BBC’s Royal Charters 1996 and 2006, and the respective 1996 and 2006 Agreements between the BBC and the Secretary of State for Culture, Media and Sport. None of these documents authorise such sub-delegation of powers.
51.   It was held in Boddington v British Transport Police [1998] 2 W.L.R. 639 (HL) that a prosecution may be contested on the public law grounds that it is based on an unlawful byelaw or administrative act (in this case, on the delegation of TV Licensing powers to Capita). Lord Slynn said at 164, in line with the other House of Lord judges:
I hold that it is open to a defendant to raise in a criminal prosecution the contention that a byelaw or an administrative act undertaken pursuant to it is ultra vires and unlawful and that if he establishes that he has committed no crime. For magistrates to be required to convict when they are satisfied that an administrative act is unlawful is unacceptable. It is not a realistic or satisfactory riposte that defendants can always go by way of a judicial review.
52.   The above observations do not necessarily invalidate the prosecution by Capita, but it is submitted they should be born in mind while assessing the prosecution case and especially their conduct in this litigation. Their position as ‘TV Licensing Authority’ is, at best, at the very frontier of what is lawful in the first place. Their behaviour in this particular case may well be said to place them beyond that frontier and in the abuse of process territory.

PART 2 – Prosecution evidence: abuse of process and inadmissibility
Mr. Hannaford’s and Mr. Shirley’s evidence
53.   On 11 October, Mr. Hannaford, a solicitor representing the prosecution, made a witness statement seeking to adduce a considerable body of new evidence, including five textual fragments allegedly copied by an unidentified TVLA employee from the entries allegedly posted by a user identified as ‘M. Shakey’ at the web-site www.tvlicensing.biz. Mr. Hanaford asserted in his statement that the original entries were no longer available. The statement also included an unsubstantiated allegation of what the Appellant said in a phone call to the TVLA on 16 August 2010.
54.   After the Appellant pointed out the evidence was inadmissible for a number of reasons, the prosecution now seeks to prove the same allegations with a different statement of Mr. Hannaford and a statement of Mr. Shirley. In a letter disclosing that evidence to the Appellant, the prosecutor attempts to pressure me to accept Mr. Shirley’s evidence without questioning it and requiring Mr. Shirley’s attendance.
55.   It will be shown that Mr. Shirley’s evidence has been fabricated.
56.   The Defendant seeks the exclusion of Mr. Hannaford’s statements with all enclosures on the following grounds:
57.   Late disclosure: the Prosecution has been ordered by His Honour Judge Saggerson to present all its evidence by 27 September. Introducing a vast body of new evidence on 13 October (one week before the original trial date), was entirely inappropriate. The excuse that this evidence is introduced “in response to Defence statement” does not hold water. The evidence is totally unrelated to any of the issues raised in the Defence statement. The prosecution has been criticized by His Honour Judge Christopher Mitchell for attempting to introduce that evidence.
58.   The same applies to the attempts to introduce that evidence in a modified form now.
59.   All this evidence has been available to the Prosecution for months and has never been disclosed. It was not even included in the schedule of undisclosed evidence. This is an attempt to have a ‘trial by ambush’.
60.   Relevance: The probative value of the exhibits is extremely low, and their prejudicial effect is considerable. “M.Shakey” cannot be satisfactorily identified. Indeed, internet login names obviously do not help any reliable identification of a person: for instance, “M.Shakey” may well be a generic name for any number of different people. It was open to the prosecution to obtain and adduce the IP address evidence linking the entries to the Appellant’s computer. They have chosen not to do so.
61.   Inadmissible hearsay. The ‘M.Shakey’ evidence is tendered to prove that:
a.   ‘M. Shakey’ allegedly made the five hearsay statements in question.
b.   The web-site allegedly displayed those statements as something allegedly stated by ‘M. Shakey’.
c.   Unidentified TVLA employees allegedly state they had read those statements when monitoring the web-site; and finally
d.   Mr. Hannaford states that the unidentified TVLA employees confirm the authenticity and accuracy of the copies he presents as exhibits.
62.   Each of these hearsay statements has to be proven admissible through one of the gateways specified in Chapter 2, Part 11 CJA 2003 (subject also to additional S. 121 requirements for admissibility of multiple hearsay). Mr. Hoskins seeks to rely on Section 188(1)5 (admissibility of confessions).
63.   It is submitted that the entries contain no confessions.
64.   Further or in alternative, the ‘confession’ gateway is not available for admissibility of multiple hearsay – Section 121(1) of CJA 2003.
65.   Mr. Hoskins does not explain what gateways he seeks to reply on in relations to all other links in the chain of multiple hearsay, as outlined above (and made known to him over two months ago).
66.   No proper Notice of hearsay evidence has been served.
67.   Evidence unfairly obtained: further or in alternative, “confessions” by M.Shakey were not made under caution, not in the presence of his lawyer, and otherwise not in accordance with the PACE procedure and codes of practice. Even if the statements were real confessions, even if this was not multiple hearsay, the evidence must be excluded under PACE.
68.   Further or in alternative, it is totally inappropriate for a solicitor involved in the case to give evidence at all.

Exhibit PJ1
69.   The exhibit is a video allegedly downloaded from Youtube web-site, purporting to be a true copy of the recording of Mr. Doyle’s visit made by the Defendant. The Defendant seeks the exclusion of that video on the following grounds:
70.   The relevance of this video to the prosecution case consists in one frozen image, visible on the screen of the TV set filmed in the video, for one or two seconds during the second minute of the recording. That image is said to correspond to an image broadcast on a TV channel several minutes before. The Defendant questions the reliability of that evidence and has produced the expert report by Mr. Paul Wiffen to show how unreliable all YouTube videos are, especially as regards still images of this nature. The Defendant has also produced two different versions of the same YouTube video where the crucial still image looks very differently.
71.   In Cross and Tapper on Evidence (12th ed.), it is observed on page 69: ‘The courts rightly take the view that the degree to which an item of evidence is relevant to an issue diminishes in proportion to the likelihood of its having been manufactured’ .
72.   Because the video is an edited copy of the original, probably not even the first generation copy, it is hearsay and possibly multiple hearsay – see R v Skinner [2005] EWCA Crim 1439. It is for the Prosecution to establish its admissibility under Chapter 2, Part 11 of the CJA 2003. The video is not properly sourced, and the continuity is not demonstrated. Contrary to Mr. Hoskins’s implied contention, Mr. Doyle’s evidence does not refer to any recollection of any frozen image he might have seen on the screen at the time of the visit.
73.   The ancient ‘best evidence’ rule states that the evidence is only admissible when it is ‘the best that the nature of the case will permit’ (Omychund v Baker (1745) 1 Atk 21, 49, per Lord Hardwicke). Admittedly, the rule has been undermined in a number of modern authorities; nowadays, as Lord Macphail says in Haddow v Glasgow City Council, 2005 SLT 1219, para 14, ‘the “best evidence” rule is not a general exclusionary rule of evidence but a counsel of prudence’. Even so, the question of whether the evidence is ‘best evidence’ remains relevant both in terms of weight and in terms of admissibility. If nothing else, these considerations should be taken into account while considering the possibility of exercising exclusionary discretion under S. 78 PACE (or, as the case may be, inclusionary discretion for hearsay evidence).
74.   In this case, the ‘best evidence’ would clearly be an expert examination of the actual equipment, not of a YouTube video of unknown origin and dubious authenticity. The Defendant gave the TVLA an ample opportunity to conduct such an examination; indeed invited them to visit his home and examine the equipment. Conversely, the Defendant had no obligation to make such an invitation, and nothing to gain from it. The TVLA indeed sent Mr. Ian Doyle on an unscheduled visit to the Defendant to examine his equipment. The Defendant asked Mr. Doyle whether he had the sufficient expertise for the task, and Mr. Doyle answered in the affirmative. In any event, it was open to the TVLA to assign that mission to a person of such expertise as they thought sufficient.
75.   In the circumstances, it is submitted that the only admissible expert opinion on the matter is the contemporaneous opinion of the expert who examined the actual equipment, as given in the initial report of Mr. Doyle. He laconically sums up that opinion as follows: ‘I was reasonably satisfied that the equipment that I had been allowed to inspect was not able to receive live broadcast’ (page 3 of the TV Licensing Field Information Form).
76.   It is submitted that this opinion should be accepted as the only reliable expert opinion on the matter. It is no good for the prosecution to replace their expert with another one, whose impartiality is tainted by a scandalous conflict of interest, who did not examine the actual equipment, in order to fabricate an entirely different result of the examination which took place five months earlier.

Expert report of Mr. Peter Jones
77.   The Defendant shall seek the exclusion of Mr. Jones’s report on the following grounds:
i.   the opinion evidence is not based on proven faces (R v. Turner);
ii.   the report is opinion evidence on the ultimate issue and thus inadmissible
iii.   Mr. Jones’s apparent and actual bias;
iv.   Mr. Jones’s lack of expertise;
78.   The Court of Appeal (Lawton LJ, Nield and Cantley JJ) held In R. v. Turner [1975] 1 Q.B. 834, 840 that all expert opinion evidence must be based on proven facts:
…those who call psychiatrists as witnesses should remember that the facts upon which they base their opinions must be proved by admissible evidence. This elementary principle is frequently overlooked.
[…] Before a court can assess a value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgement, counsel calling an expert should in examination in chief ask the witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.
79.   Of course, this rule applies, mutatis mutandis, to any expert witness.
80.   In this case, Mr. Jones’s opinion is clearly based on the fact that exhibit PJ1 is a true recording of the events which took place the Defendant’s house on 2 August 2010. That fact must be proven, beyond reasonable doubt, before the expert report can be admitted. Even if the video is admitted, its reliability and accuracy remains highly questionable. Consequently, Mr. Jones’s report is inadmissible in any event.
81.   Further, any opinion evidence on the ultimate issue in criminal proceedings is inadmissible as a matter of law – see, for example, R v. Wright (1821) Russ & Ry 456, 458; North Cheshire and Manchester Brewery Co v Machester Brewery Co (1899) AC 83, 85. The expert may not usurp the functions of the tribunal of fact. The rule has been abolished in civil proceedings by S. 3 of the Civil Evidence Act 1972, but still survives in criminal proceedings. In this case, Mr. Jones’s report clearly purports to give an opinion on the ultimate issue – whether or not the Defendant received live TV broadcasts on 2 August 2010.
82.   Above all, Mr. Jones’s evidence should not be admitted for his apparent and actual bias. Mr. Jones has worked for the prosecutor as a consultant and was paid £16,675.00 (incl. VAT) for two days of work. The prosecution has attempted to evade disclosure of that conflict of interest in most unacceptable way, including an outright breach of a disclosure order by the Court.
83.   The Court of Appeal held in Toth v Jarman [2006] 4 All ER, para 102:
‘Where an expert has a material or significant conflict of interest, the court is likely to decline to act on his evidence, or indeed to give permission for his evidence to be adduced. This means it is important that a party who wishes to call an expert with potential conflict of interest should disclose the details of that conflict at as early a stage in the proceedings as possible.’
84.   Then at para 114: ‘in our judgement, an expert should produce his CV when he provides his report, and that CV should give details of any employment or activity which raises a possible conflict of interest’.
85.   In this case, Mr. Jones failed to disclose this extraordinary conflict of interest in his CV. Nor was it disclosed at any stage during the proceedings in Magistrates Court. Worse still, the prosecution has attempted to conceal this information even when presented with an express disclosure order by this Court.
86.   There is further evidence of apparent bias on his part. In the original version of his expert report, Mr. Jones makes inappropriate and irrelevant criticisms of the Defendant as someone he knows to be a political opponent of TV Licensing. He acts not as an unbiased expert, but as an advocate for a party calling him. The inappropriate passages have been removed from the text of the report after the Defendant pointed out their impropriety. See also exhibit MS10 and the submission on abuse of process above.
87.   Rule 33.2 of the Criminal Procedure Rules 2010 provides that an expert has an overriding duty to give opinion evidence which is objective and unbiased.
88.   In Liverpool Catholic Archdiocesan Trustees Inc v Goldberg (No 3) [2001] 1 WLR 2337, 2340, Evans-Lombe J held:
Where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be.
89.   See also The Ikarian Reefer [1993] 2 Lloyd’s Rep 68, 81; Harris [2006] 1 Cr App R 5 at [270]-[273]; R v Stubbs [2006] EWCA Crim 2312; Leo Sawrij Ltd v North Cumbria Magistrates [2009] EWHC 2823 (Admin).
90.   Finally, the Defendant questions Mr. Jones’s expertise to give this report. The statement in his CV that he is ‘MBA qualified’ is misleading; as has been disclosed on the orders of the Court, his qualifications are in Geography and Management and totally unrelated to his proposed field of expertise. The CV does not establish his expertise in the technical issues involved; all his experience as a ‘Commercial Director’ and ‘Marketing and Commercial Director’ does not seem relevant. It appears possible and even likely that he is an expert in commerce and financial matters (his achievement of earning £16,675.00 in just two days is remarkable in this respect), but not in the television or computer technology. I also note that the prosecution disclosure on this issue has been as economical as humanly possible.
91.   It does not seem that Mr. Jones’s expertise in relevant fields is in any way superior that that of Mr. Doyle. In the circumstances, having the benefit of Mr. Doyle’s opinion based on the proper examination of the matter, one can see no reason why the Court should hear Mr. Jones’s inexpert opinion (with all due reverence to his expertise in Geography and Marketing).

PART 3 – No case to answer
92.   Even if some or all the evidence reviewed above is admitted, it is not capable of proving the Defendant’s guilt beyond reasonable doubt.
93.   The weight of PJ1 video is gravely undermined by the fact that it is not the original video and not even a first generation copy. There is every possibility that the video has been tampered with in a crucial way. There are other versions of the same video available on the internet which do not incriminate the Defendant.
94.   The accuracy and impartiality of Mr. Jones’s opinion will be vigorously challenged in cross-examination. Crucially, there are innocent explanations for the ‘facts’ he comments on (even though those ‘facts’ are not proven), and he fails to give such explanations or even to indicate their existence; this can and will be shown in cross-examination if necessary.
95.   Mr. Hannaford’s evidence is extremely unreliable; even if admitted, it shall carry very little or no weight. Mr. Shirley’s evidence has been fabricated.
96.   There are discrepancies between Mr. Doyle’s two statements, and most importantly, they both contradict his initial finding that ‘the equipment that I had been allowed to inspect was not able to receive live broadcast’.

PART 4 – Defence case
97.   It is well-established and shall not be in dispute that the TV licence under Part 4 of the Communications Act 2003 is required for reception of ‘live TV broadcasts’ but not for watching pre-recorded content such as videos.
98.   The Prosecution has failed to prove that the Defendant did either of those things. However, if the ‘no case to answer’ fails, the Defendant will say that he may have watched pre-recorded videos at the relevant time, but not live broadcasts.
99.   The technical aspects involved are addressed in detail in the Defence Statement.
100.   The prosecution case is understood to be that where the pre-recorded content is watched very soon after it had been broadcast (e.g. an earlier part of a TV programme has been recorded and is being watched as a video while a later part of the same programme is still aired) it is being received at ‘virtually the same time’ as it is being broadcast (para 7 of the Respondent’s Opening). Thus, such access to the programme, even as pre-recorded content, falls within the scope of Part 4.
101.   The Defendant does not accept this argument. It will be submitted that the only person who needs a TV licence in such circumstances is the one who received and records the actual live broadcasts. If the recordings are then made available to others, that falls outside the scope of Part 4 and the offences created therein. If the broadcaster feels such an arrangement infringes its rights or legitimate interests, the remedy should be sought elsewhere – for instance, in a civil action for breach of copyright.
102.   The interpretation of statutory provisions analogous to Part 4 has historically been quite restrictive. Lord Denning MR says in Congreve v. Home Office [1976] Q.B. 629 (CA) at 649:
One thing which the [TV licensing authority] must bear in mind is that the owner of a television set has a right of property in it; and, as incident to it, has a right to use it for viewing pictures in his own home, save in so far as that right is prohibited or limited by law. Her Majesty’s subjects are not to be delayed or hindered in the exercise of that right except under the authority of Parliament. The statute has conferred a licensing power on the Minister: but it is a very special kind of power. It invades a man in the privacy of his home, and it does so solely for financial reasons so as to enable the Minister to collect money for the revenue.
103.   In the age of the Human Rights Act 1998, the restrictive interpretation of Part 4 of the Communications Act is also mandated by S. 3 HRA. The viewers’ Convention rights (Articles 8, 10, and Article 1 of the 1st Protocol) are obviously engaged. Any interference with those rights must be ‘prescribed by law’ and ‘necessary in a democratic society’.
104.   It is well-established that the ‘prescribed by law’ includes the requirement that the ‘law’ must be accessible to those concerned and its consequences must be foreseeable. Fore example, in Amann v. Switzerland (27798/95) (2000) 30 E.H.R.R. 843, the judgement reads in para 55-56:
The Court reiterates that the phrase “in accordance with the law” implies conditions which go beyond the existence of a legal basis in domestic law and requires that the legal basis be “accessible” and “foreseeable”.
According to the Court’s established case law, a rule is “foreseeable” if it is formulated with sufficient precision to enable any individual—if need be with appropriate advice—to regulate his conduct.
105.   It is clear that the interpretation of the Communications Act 2003 proposed by the prosecution would not satisfy those requirements to any degree. All the material accessible to the viewer, most of it originating from the TVLA itself, suggests that TV license is not necessary to watch any pre-recorded content, no matter who and when recorded it and how the recording has reached the viewer. This is respectfully submitted to be the correct interpretation of the law.

Michael Shakespeare

22 February 2011

Michael Shakespeare

Roy
Sorry.. thought it was you but could not find the OP to confirm.

Not only was Owen Shirley involved in the case, he gave evidence that a call log, produced as an ‘exhibit’ was genuine.
By comparison with correspondence between myself and Crapita, it was revealed that the call log

1: Had calls missing, ie not ‘logged’
2: The running order of the logged calls had appeared to have been ‘altered’.

Shirley smugly gave evidence that each call was logged and the caller could be POSITIVELY identified by a unique reference number given to ALL callers, but when, under strict cross-examination by myself, the discrepancies between the correspondence and the call log were pointed out, he changed his mind and said that not ALL calls are logged and had no explanation for the altered order of the logged calls.

So in effect not ALL calls were logged, (maybe they were, but some were surely missing), and the caller could NOT be positively identified.

So Roy if they do decide to bring him as a witness against you for any reason…. beware….. it seems that he will be ‘economical’ with the facts, ( in line with ALL these corporate drones).

Most people latched on to the ‘fabricated video evidence’, but there were more skeletons…. excuse the pun.

I wish I could afford to sue them for ‘malicious prosecution’, I think I would win hands-down, but I fear I just dont have the funds……

Shakey

A200110181

IN BASILDON CROWN COURT

Before His Honour Judge GRAHAM and two lay Justices of the Peace

APPEAL AGAINST CONVICTION (s. 108 of the Magistrates Courts Act 1980)

B E T W E E N : –

TV Licensing Authority

Prosecutor

-v-

Michael Shakespeare

Appellant

________________________________________

Note by the McKenzie friend of the Appellant

________________________________________

15 March 2012, the fourth day of the trial

After the prosecution case was presented, the Appellant made a submission of ‘no case to answer’.

Judgement given at 15:14.

His Honour Judge Graham: We have reflected upon the fact that we are at the end of the prosecution case, and the Appellant, Mr. Shakespeare, has made a submission of ‘no case’. To succeed, the Appellant has to demonstrate that no reasonable tribunal of fact, properly directed or self-directed, can find him guilty of the offence alleged, on the basis of the prosecution evidence presented to us. The offence is that of receiving television programs without a license contrary to S. 363 of the Communications Act 2003.

In these proceedings, we are the tribunal of fact, and in this respect, these proceedings are different from a jury trial.

Mr. Shakespeare and the TV Licensing Authority had been in dispute for some time. On 2 August 2010, a TVLA inspector, Mr. Doyle, visited Mr. Shakespeare’s property. He examined the equipment and assured Mr. Shakespeare that he was reasonably satisfied it was not receiving television programs at the time.

This could well have been the end of the matter, but Mr. Shakespeare then complained to the TVLA about the manner of Mr. Doyle’s investigation. That complaint prompted the TVLA to discover a video recording of the visit, apparently made by Mr. Shakespeare and subsequently posted on a video-sharing web-site, Youtube. It is on the basis of that Youtube video that the prosecution proceeds.

The prosecution has made it very clear that their case is that Mr. Shakespeare had been receiving live TV broadcasts just before Mr. Doyle’s visit, and disconnected his receiving equipment moments before Mr. Doyle entered his property.

Our attention has been drawn to a ‘frozen image’ which can be seen on the screen of Mr. Shakespeare’s TV set as shown in the video. That ‘frozen image’ is identical to what had been broadcast on the BBC, as part of its ‘One Show’, at about the same time on 2 August. The prosecution alleges that the appearance of the ‘frozen image’ on the screen resulted from the disconnection of an aerial moments before Mr. Doyle entered the property.

We have heard expert evidence of Mr. Peter Jones confirming that such a disconnection would indeed result in an appearance of such a ‘frozen image’ on the screen.

Mr. Shakespeare submitted that the prosecution had failed to discharge the burden of proof because the video itself (referred to in these proceedings as ‘PJ1’) is not validated. Different versions of that video are available on the internet, some of them do not include the ‘frozen image’, and Mr. Jones could not confirm the authenticity of the version of the video which he examined. The video is also different from Mr. Doyle’s account of the visit.

Putting this on one side, two most potent points in Mr. Shakespeare’s submission are as follows.

Firstly, Mr. Doyle, when giving evidence before us, stated emphatically that he did not see the ‘frozen image’.

Secondly, the timings in Mr. Doyle’s evidence do not coincide with the case against the Appellant.

When the ‘frozen image’ appears in PJ1 video, it can be seen that Mr. Doyle is not just in the room, but in front of the TV set, pointing or gesticulating towards it. However, when Mr. Doyle gave evidence before us, he did not refer to seeing the image. When questioned by us, he said: “I did not see that image on the TV screen”. It is difficult to reconcile this evidence, given by the prosecution’s own key witness, with the YouTube video whereon the whole prosecution case is based.

Mr. Hoskins, who appeared on behalf of the prosecution, suggested to us that Mr. Doyle’s attention could be distracted by other equipment or examining the next room, which he was about to enter. However, on the basis of the prosecution’s own evidence, we find it very difficult to see how Mr. Doyle could have missed the ‘frozen image’.

Further, the timings in this case create enormous difficulties for the prosecution, and those difficulties come from their own evidence.

Mr. Doyle has stated that he went out of his car at 7 pm on 2 August 2010. He then checked his watch before knocking the Appellant’s door, and it showed 7.04 pm.

He was sure that his watch was accurate, as required of the TVLA’s ‘visiting officers’. This is very precise evidence given by a prosecution witness.

Mr. Doyle stated that Mr. Shakespeare opened the door some 30 or 40 seconds later. Mr. Shakespeare said he wanted to film the visit. He then rummaged in his bag to find his camera, which took, at most, a minute and a half. This means it was not later than at 7.07 pm that Mr. Doyle entered the house.

From that moment, Mr. Doyle and Mr. Shakeapeare were together, they are both present in the video, and it would have been impossible for Mr. Shakespeare to disconnect the aerial.

It is the prosecution case, and reflected in the expert report of Mr. Jones and the instructions given to him by the prosecution, that Mr. Doyle arrived to the Appellant’s house 11 minutes into the transmission of ‘One Show’, which starts at 7 pm exactly. That, then, is the crucial time from which the time begins to run for the purposes of this case.

We watched the BBC recording of the program broadcast on that day. The ‘frozen image’ is broadcast at 11 minutes 6 seconds into the recording. Mr. Hoskins has drawn our attention to the fact that the first one minute and sixteen seconds of the recording apparently were not broadcast. This puts us at 9 minutes and fifty seconds past 7 pm. This is the earliest time when the ‘frozen image’ could be broadcast, and this is two and half minutes past the time when Mr. Doyle entered the property.

Mr. Hoskins tried to persuade us that it is impossible to be so precise about the timing. However, these are the timings his own principal witness, Mr. Doyle, insists on.

Mr. Hoskins drew our attention to two other timings, which appear, respectively, on the analogue clock and the Topfield box clock as filmed in the video. Unlike with Mr. Doyle’s watch, there is no evidence as to the accuracy of those clocks. Further, the fact that they are significantly divergent from each other suggests the timings provided by those clocks are unreliable.

Where does this leave the prosecution case?

Mr. Jones has given evidence on the basis of his analysis of the PJ1 video, which he assumed to be a true and accurate record of the events.

On the other hand, Mr. Doyle’s evidence makes it virtually impossible to be so. Mr. Doyle was there and he did not see the ‘frozen image’, and the timelines given by the prosecution do not match.

We have looked fairly at all the prosecution evidence.

No reasonable tribunal of fact could have found Mr. Shakespeare guilty on that evidence, and therefore we must allow this appeal.

Appeal allowed with costs.

Note taken by Pavel Stroilov the McKenzie friend

15 March 2012

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