The legalities of illegal broadcasting

THE LEGAL POSITION ON unlicenced broadcasting, according to authorative legal sources, appears to be as follows: while it is a summary offence, it seems likely that the confiscation of apparatus would be held to be unconstitutional and there is no question of advertisers being in breach of the law. In addition, it seems that new legislation will have to be introduced simply to provide the mechanism for the issuing of licences to commercial entitles.

Without a broadcasting licence from the Minister for Posts and Telegraphs, broadcasting renders one liable to summmary prosecution for contravention of section 3 (3) of the Wireless Telegraphy Act 1926, as amended by section II of the 1972 Act and, if convicted, to a fine of up to £50 for a .first offence and up to £100 for a seeond and subsequent offence.

It is also provided that in every case all of the apparatus, in respect of which the offence was committed, shall be forfeited. This latter provision is manndatory stipulation under the Act.

The legal controversy in the issue centres on the question of mandatory forfeiture of equipment. A similar clause in another Act was recently the issue of a High Court ruling and it is this that has given rise to the conntroversy.

The other act is The Fisheries (Consolidation) Act 1959 which also provides for mandatory forfeiture hin this case of fishing gear and catch 8on conviction of masters of foreign trawlers for fishing illegally in Irish waters. In. a recent case concerning the master of a Bulgarian trawler, Justice McWilliam of the High Court held that section 221 of the 1959 Fisheries Act was unconstitutional - this was the section which stipulated mandatory forrfeiture on conviction.

The relevant article of the constitu-· tion is 38 (2) which states that minor offences may be tried by courts of summmary jurisdiction. The issue considered by Justice McWilliam was whether the offence of illegal fishing in Irish waters could properly be regarded as a minor offence and, hence, triable summarily, having regard to the implication of the mandatory requirement as to forfeiture of catch and gear on conviction.

He found that the court must take into account not merely the maximum fine which might be imposed but also the gravity of the loss which a defendant might sustain by reason of forfeiture of such catch and gear. He held that the forfeiture order was part of the penalty and as this might amount to grevious financial loss, it follows that the offence giving rise to such forfeiture could not be termed a "minor" offence within the meaning of Article 38 (2). of the constitution. Accordingly he held the offence is not triable summarily. He went on to hold that part of section 221 (2) of the Fisheries Act which provided mandaatory forfeiture of gear and catch by order of the District Court was unconnstitutional.

The judgement has been appealed to the Supreme Court but it is widely believed within the legal profession that it will be upheld. In other recent cases (notably Conroy .v. A. G. 1965 and In reo Haughey 1971) the Supreme Court held that of the relevant criteria for determining whether a particular offence was "minor" or not within the meaning of Article 38 (2), the most important is the severity of the penalty which is authorised to be imposed for the commission of the offence.

It therefore seems likely that Section 3 of the Wireless Telegraphy Act 1926, which provides for mandatory forfeiiture, would also be found to be unconnstitutional. In other words, a district justice has no right to make an order confiscating the apparatus involved in the commission of the offence.

A question also arises about the constitutionally of Section 8 (l) of the 1926 Act which permits the issuing of search and seizure warrants by district courts to officials of the Department of

0" Posts and Telegraphs and to the Gardai on suspicion of the presence of apparaatus which is broadcasting illegally. It would seem on first sight that if it is unconstitutional for district courts to order the forfeiture of apparatus upon conviction, then it is unconstitutional

for district courts to issue search warrrants for seizure and detention of that apparatus in the first place. But it can be argued that this seizure and detenntion is requi.red for the production of evidence in court.

However the scope of seizure under search warrants would appear to be very much more limited than acknowledged by the Gardai and officials of the Department. Search warrants under the 1926 Act relate only to "an apparatus for wireless telegraphy". This means that it is not legal for these officers to seize material not directly related to this purpose - material such as record turn-tables, tape decks etc, all of which has been seized in recent raids.

Once equipment is seized in this way, the defendant has the right to a speedy trial and then, irrespective of the outtcome, to the return of the equipment.

In extremis it would appear that the pirate stations could insist that the Minister set up the proper machinery issuing of licences and decide on their application. There is a constitutional right, subject to the common good, to communicate one's views to the public through the press and "through radio. Therefore the onus now rests with the Minister to devise and operate a reasonnable scheme for the granting of licences to those who wish to engage in indepenndent broadcasting. The stations could apply to the High Court for an order of "mandamus" requiring the Minister to fulfill this duty and, in present circummstances, it is likely that this order would be successful.

As far as advertisers are cocerned, the offence under section 3 (3) of the 1926 Act relates to "keeping, possesssing, working or using any apparatus for wireless telegraphy without licence." Clearly advertisers do not rela te to any of these activities.

As to the question of aiding and abetting, in the first place ad vertising does not amount to aiding and abetting and anyway there is no such offence in relation to misdemeanours, which is what is involved here. (Aiding and abetting applies only to felonies).