In one high profile criminal case in 2017, covered in an episode of series 2 of The Prosecutors, eleven defendants were prosecuted for using drones to fly drugs, weapons and various other items into a number of prisons in the UK on multiple occasions in a coordinated operation.
A lot of the criminal law of England and Wales is based on quite specific statutory offences, but the criminal offences these defendants were prosecuted with make no mention of the use of drones. Instead, they included:
- Conspiracy to convey list A, B and C prohibited articles into/out of a prison (contrary to sections 40A, 40B and 40C Prison Act 1952)
- Conspiracy to throw an article or substance into a prison (contrary to s40CB Prison Act 1952)
- Conspiracy to supply psychoactive substances (contrary to s5 Psychoactive Substances Act 2016)
- Being concerned in supplying a controlled drug to another (contrary to section 4(3) Misuse of Drugs Act 1971)
- Possession of an electronic communication device whilst in custody (contrary to s40D Prison Act 1952)
- Money laundering - concealing, transferring or converting the proceeds of crime (contrary to s327 Proceeds of Crime Act 2002)
This meant that prosecutors had to consider how to fit new types of undesirable behaviour into existing criminal offences that did not anticipate the development of the new technologies employed. Some of these offences appear to fit the conduct in question reasonably well, such as conveying various prohibited items into a prison. Others, such as supplying psychoactive substances or money laundering, seem less directly relevant to the use of drones being targeted.
This case was prosecuted in England using the law of England and Wales. Some of the legislation used also applies to Scotland and Northern Ireland (for example, the Psychoactive Substances Act 2016), whereas in other areas these jurisdictions have separate criminal law. Either way, similar considerations apply when creating new criminal offences.
Adapting to new technology
One way the criminal law adapts to technological development, or at least to changes in offender behaviour and new types of undesirable conduct, is to create new statutory offences, and this does happen quite frequently – new criminal offences are regularly enacted by Parliament. For example, while the main offences prosecuted in this drones case are contained within the 1952 Prison Act, these were actually added to the Prison Act by later amending legislation, including the Offender Management Act 2007, the Crime and Security Act 2010, and the Serious Crime Act 2015. It is worth noting that the Psychoactive Substances Act 2016 itself was enacted to deal with the ongoing development and distribution of a new range of harmful ‘legal highs’, which existing drugs legislation, based on the banning of specific drugs, was not equipped to tackle.
Nevertheless, none of the law used in this drones case mentions a specific offence of using drones to convey articles into prison. Another example of a more specific response to technology, which was employed, might be s45(c) Crime and Security Act 2010 which replaced a previous equivalent offence in the Prison Act with the offence of possessing (among other things) a device capable of transmitting or receiving images, sounds or information by electronic communications in prison.
Considerations when creating new criminal offences
There is a tension in drafting criminal law between enacting an offence general enough to capture new ways of carrying out essentially the same behaviour, but specific enough to adequately cover particular forms of offending that might fall through the cracks. Other factors also play into this.
There are general principles of the rule of law stating that criminal laws should not be retroactive (applying to conduct that has occurred before the law comes into force), and that they should be sufficiently well-defined and specific that those subject to them can understand precisely what is being prohibited and avoid that behaviour. This means that, in principle, criminal offences cannot be too widely drawn and that, if something is missed it cannot be retroactively corrected – so some people may get away with conduct harmful to society until a new offence can be enacted to plug the gaps.
Other considerations include the deterrent effect of the public awareness generated by the process of enacting a very specific offence for particular conduct that may already be covered in general by existing law, not to mention the relative ease of prosecuting tailor-made offences. For example, in relation to the drones case, a specific offence of using drones to fly prohibited goods into prisons might raise awareness that this conduct is illegal and that the authorities are clamping down on it, encouraging some potential offenders to think twice before offending. This was part of the rationale behind the Modern Slavery Act 2015, which did create some new offences relating to modern slavery, but also raised the public profile of modern slavery as an issue in society and drew attention to a number of existing offences that can be used to prosecute conduct that contributes to modern slavery.