Introduction
The boom in the retail market for affordable civilian Uncrewed Aerial Vehicles (UAVs, or drones) has caused significant headaches for the prisons service, as ever-increasing numbers of the remote-controlled aircraft have been caught attempting to smuggle drugs and phones into jails.
Ministry of Justice statistics show that between 2019 and 2021, 504 drones were sighted, intercepted or seized around prisons in England and Wales, although since June 2016 there have only been 70 related convictions. One intercepted drone delivery at an unnamed prison in May 2022 contained a payload of drugs and mobile phones valued at more than £35,000.
Successive justice ministers have promised tougher action and preventative measures (including Liz Truss’ famous barking dogs) but it is only this month that new regulations are coming into force in an attempted clamp-down on airspace.
Existing Legislation
It is already an offence under sections 40B and 40C of the Prisons Act 1952 to convey prohibited articles into or out of a prison without authorisation (which includes by drone or any other means). Prohibited articles are classified as List A, B or C:
- List A articles – drugs, explosives, firearms and ammunition and any other offensive weapon. Offences in respect of List A items are indictable-only with a maximum sentence of 10 years’ imprisonment.
- List B articles – alcohol, mobile telephones, cameras, sound recording devices (or constituent parts of the latter three items). Offences in respect of List B items may be tried either way. The maximum sentence is two years.
- List C articles – any tobacco, money, clothing, food, drink, letters, paper, books, tools, information technology equipment. Offences relating to List C items are triable summarily only for which the maximum penalty is a fine.
The prosecution must prove that:
- The defendant was responsible for the conveyance itself (in drone cases this may for example be inferred from ownership/registration of the drone, forensic link to the drone or its payload, cell siting in the vicinity of the prison at an unusual time, or more simply being caught red-handed while operating the aircraft); and
- The defendant knew that he/she was conveying something prohibited into the prison (although the prosecution does not have to prove that the defendant knew precisely what that item was).
Not Enough? Preventative Measures Required
Despite promises as far back as 2016 by then justice secretary Liz Truss to create no-fly zones around prisons, police can only currently act on drone sightings where there is evidence of contraband being illegally smuggled. As a result of new regulations, this will change from 25 January 2024 with a more ‘blanket ban’ on such flights, in theory giving the police a much broader scope to act.
What are the new Regulations?
The Air Navigation Regulations 2023 were made into law on 16 October 2023 and will take effect from 25 January 2024.
What this has done, put simply, is introduce a ‘no fly zone’ above every closed prison and young offender institution in England and Wales (with a 400-metre radius). No unauthorised unmanned flight may fly within this airspace.
The Regulations are made as secondary legislation pursuant to the Secretary of State’s powers contained in article 239 of the Air Navigation Order 2016 and so the newly restricted airspace is brought within the remit of the 2016 Order.
Any person contravening the Order (‘prohibited or restricted flying’) is guilty of an offence and liable on conviction to a fine of up to £2,500.
Conclusion – Will this make a difference?
It is clear that the Government hopes that this will deter drone flights and lead to a reduction in drone-assisted smuggling of items into prisons.
On the other hand, many will question if these fines are great enough given the valuable payloads being recovered from intercepted drones, and the far heavier penalties already in force for those caught and proven to be actually smuggling items. Any drone in the immediate vicinity of a prison would already have attracted attention and attempted interception by authorities on suspicion of breaching the Prisons Act, so it is difficult to see in practice what change these regulations will really make.
Cynics may say that this was an easy headline achieved by secondary legislation which allowed the government to say with a straight face for the first time: “Look! At least we are doing something.”
