*/
Originally designed as military technology, lethal striking and reconnaissance drones, both large and small, have emerged as instrumental in modern warfare. The growing use of both smaller and consumer off-the-shelf drones has also ushered in cheaper and increasingly accessible ‘eyes in the sky’, enabling surveillance and violent carrying capacity to reach wider ranges of battlefield actors. Yet, while considerable attention has been paid to the regulation of drones in the context of warfare, less has been directed at the rising potential of consumer drones to cause domestic harms beyond the battlefield, in the hands of bad actors and criminals, as well as through accidental or negligent misuse. From flying drones in proximity to manned aircraft, using drones to transport contraband into prisons, and the weaponisation of drones in attempts to harass and harm ex-partners, we are interested in the perspectives of lawyers on domestic drone incidents and harms.
Under the umbrella of Dr Anna Jackman’s ESRC-funded research project ‘Diversifying Drone Stories’, we undertook a series of structured workshops to investigate lawyers’ understandings of domestic drone harms, as well as the legal challenges such harms pose, and how they could be addressed. This article is a summary of our resulting report Drone incidents and misuse: Legal considerations.
Drones refer to Unoccupied Aerial vehicles (UAVs) or Remotely Piloted Aircraft Systems (RPAS) and are aircraft without a pilot onboard which can be controlled by a pilot from the ground or fly with various levels of autonomy.
Within UK regulation, drones are divided into different operational categories: Open, Specific and Certified, depending on the level of risk, weight and purpose of the drone flight. Drones are typically operated within an operator’s Visual Line of Sight (VLOS), but may also be operated Beyond Visual Line of Sight (BVLOS), subject to particular regulatory permissions and requirements (e.g. a technical capability to see and avoid potential conflicts or a form of mitigation such as segregation in the air from other forms of traffic and hazards).
Equipped with cameras, drones can be used for mapping, inspection, monitoring, surveillance and videography by anyone from a hobbyist to the police and emergency services. Drones are increasingly embraced as ‘eyes in the sky’, from asset management and security to monitoring protests and regulatory compliance matters. Aerial data gathering also extends to the equipping of drones with sensors, such as thermal sensors used in the search for missing persons and first response. Drones are also used commercially for transport and carrying operations, such as last mile and intra-depot delivery, agricultural spraying and pesticide dispersal.
Notably, drones have also been weaponised by bad actors to target individuals, from gathering aerial imagery to inform burglaries to perpetrating domestic abuse.
At the international level the United Nations Agency, the International Civil Aviation Organisation (ICAO) is responsible for developing global standards and recommended practices, procedures and guidance material for unmanned aviation. The UK is a signatory to the Chicago Convention of 7 December 1944 which provides at article 8 that ‘no aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a Contracting State without special authorisation by that State’ and that States undertake to insure that the flight of such aircraft in such regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft (CAP 722: 14).
In the UK, drones are regulated by the Civil Aviation Authority (CAA) and fall under two main separate legislative frameworks:
The Basic Regulation outlines the common rules for civil aviation within the UK and for Unmanned Aviation Systems consists of the Implementing Regulation and the Delegated Regulation. The Air Navigation Order 2016 sets out the main requirements for UK aviation and covers UK airspace (excluding flying drones indoors). A person must not recklessly or negligently act in a manner likely to endanger an aircraft or person within an aircraft (Article 240) or recklessly or negligently cause or permit an aircraft (manned or unmanned) to endanger any person or property (Article 241).
The ANO 2016 provides additional regulatory content in respect of drones that is either:
The CAA also provides guidance on regulation through the publication of Civil Air Publication Documents and the primary document is the CAP 722 Unmanned Aircraft System Operations in UK Airspace – Policy and Guidance.
The Air Traffic Management and Unmanned Aircraft Act 2021 was designed to clamp down on the illegal use of unmanned aircraft by giving police powers to respond. Schedule 8 enables officers to instruct a pilot to land their drone, stop and search people or vehicles to find drones or drone equipment, and to confiscate drones or drone equipment found during a search. Pilots may be required to show their registration details and other information including evidence of permission to fly where that is necessary. A fixed penalty system enabling police to issue on the spot fines for certain offences was introduced and is under development.
Drone regulation is largely situated in relation to aviation law. As such, in exploring incidents of drone misuse and their associated harms, we were interested in whether such a legal basis adequately reflects emerging concerns and challenges. Public concerns identified in the Future Flight Challenge – Mini Public Dialogue, a Sciencewise report, include the potential for collisions in the air and the risk to people and property below, privacy implications of drones accessing and recording personal spaces and intruding into people’s private and domestic lives, visual and noise pollution. Security issues have also been raised, with concerns expressed regarding the use of drones for criminal activity. For example, the use of drones to bring drugs into prisons prompted the government to introduce regulations limiting the height at which drones can be flown near prisons (Air Navigation (Restriction of Flying) (Prisons and Young Offenders Institution) 2023/1101)).
A series of emerging legal questions and challenges were identified during the project’s workshops, which brought together lawyers across diverse specialisms and backgrounds. These include data protection in the context of livestreaming and facial recognition technologies, responsibility and liability in respect of autonomy and artificial intelligence, and issues relating to emerging concerns around drone noise. Proposals for airspace management, such as drone highways, segregation of airspace and passage through and over houses may also raise planning and environmental law consequences. With regard to legal process more widely, evidential issues include not just the identification of the remote drone controller, but issues such as in which jurisdiction the evidence itself is held.
Drone flying has been touched on in civil case law but many questions remain to be answered including whether or not drone flying constitutes an actionable trespass (see Nicklin J in MBR Acres Ltd v Free the MBR Beagles [2021] EWHC 2996 (QB) at para 111). In terms of nuisance in Bernstein v Skyviews Ltd 1978] QB 479 Griffiths J noted that if a person ‘was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity’ he was ‘far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief’ [para 489G] and in Fearn and ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 the Supreme Court recognised that visual intrusion can constitute negligence and that ‘natural and foreseeable consequences’ arise from living in an age of smartphones with high powered cameras [Lord Leggat]. Drones paired with smartphones also facilitate harassment, stalking, surveillance and other forms of harm. The law does not appear to have definitively determined what constitutes a reasonable height above ground or the point at which intrusive viewing becomes nuisance. This is likely to be context specific and will have to be balanced against the need for drones not to fly in the path of other commercial aircraft. There are common law and statutory offences of causing public nuisance under which some forms of drone (ab)use may fall.
The invasion of privacy and taking of photographs may result in breaches of data protection law under UK GDPR and the Data Protection Act 2018 or the tort of misuse of private information occasioned by unwanted intrusion into one’s personal space. The use of drones by public authorities may impact on duties of care imposed on local authorities. For example, in Holmes v Medway Council [2018] 6 WLKUK 702 the Medway County and Family Court (sitting at Canterbury Combined Court Centre) stated that ‘drones may change the parameters of what is reasonable to expect by way of surveillance and monitoring’. Some clear and specific issues arise in respect of police surveillance using drones and, conversely, the use of drones to surveil the police.
As drones move from the military space into domestic spaces, across commercial and hobbyist iterations, they create cross-practice challenges for lawyers. Firstly, whether any remedy for drone harm lies with the regulator, in the criminal justice system or through civil law, and secondly understanding the technology and challenges it raises in relation to obtaining evidence. There are some significant evidential challenges in respect of remoteness, access to drone footage and information about the drone (e.g. through drone forensics).
Our report concludes with recommendations designed to take into account the normalisation of drone use outside a military or state context. These include:
The Law Commission has published its first consultation paper on autonomy in relation to Vertical Take Off and Landing (VTOL) aircraft which provide short journeys for a small number of people and drones which remains open until 28 June 2024 (extended deadline). A second consultation later this year and final report in 2025 are expected.
Louise Hooper is a barrister at Garden Court Chambers working on technology and human rights. She is an expert to the Council of Europe drafting committee on AI and equality.
Dr Anna Jackman is a lecturer at the University of Reading. Her current research explores the impact of drones on everyday life.
Originally designed as military technology, lethal striking and reconnaissance drones, both large and small, have emerged as instrumental in modern warfare. The growing use of both smaller and consumer off-the-shelf drones has also ushered in cheaper and increasingly accessible ‘eyes in the sky’, enabling surveillance and violent carrying capacity to reach wider ranges of battlefield actors. Yet, while considerable attention has been paid to the regulation of drones in the context of warfare, less has been directed at the rising potential of consumer drones to cause domestic harms beyond the battlefield, in the hands of bad actors and criminals, as well as through accidental or negligent misuse. From flying drones in proximity to manned aircraft, using drones to transport contraband into prisons, and the weaponisation of drones in attempts to harass and harm ex-partners, we are interested in the perspectives of lawyers on domestic drone incidents and harms.
Under the umbrella of Dr Anna Jackman’s ESRC-funded research project ‘Diversifying Drone Stories’, we undertook a series of structured workshops to investigate lawyers’ understandings of domestic drone harms, as well as the legal challenges such harms pose, and how they could be addressed. This article is a summary of our resulting report Drone incidents and misuse: Legal considerations.
Drones refer to Unoccupied Aerial vehicles (UAVs) or Remotely Piloted Aircraft Systems (RPAS) and are aircraft without a pilot onboard which can be controlled by a pilot from the ground or fly with various levels of autonomy.
Within UK regulation, drones are divided into different operational categories: Open, Specific and Certified, depending on the level of risk, weight and purpose of the drone flight. Drones are typically operated within an operator’s Visual Line of Sight (VLOS), but may also be operated Beyond Visual Line of Sight (BVLOS), subject to particular regulatory permissions and requirements (e.g. a technical capability to see and avoid potential conflicts or a form of mitigation such as segregation in the air from other forms of traffic and hazards).
Equipped with cameras, drones can be used for mapping, inspection, monitoring, surveillance and videography by anyone from a hobbyist to the police and emergency services. Drones are increasingly embraced as ‘eyes in the sky’, from asset management and security to monitoring protests and regulatory compliance matters. Aerial data gathering also extends to the equipping of drones with sensors, such as thermal sensors used in the search for missing persons and first response. Drones are also used commercially for transport and carrying operations, such as last mile and intra-depot delivery, agricultural spraying and pesticide dispersal.
Notably, drones have also been weaponised by bad actors to target individuals, from gathering aerial imagery to inform burglaries to perpetrating domestic abuse.
At the international level the United Nations Agency, the International Civil Aviation Organisation (ICAO) is responsible for developing global standards and recommended practices, procedures and guidance material for unmanned aviation. The UK is a signatory to the Chicago Convention of 7 December 1944 which provides at article 8 that ‘no aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a Contracting State without special authorisation by that State’ and that States undertake to insure that the flight of such aircraft in such regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft (CAP 722: 14).
In the UK, drones are regulated by the Civil Aviation Authority (CAA) and fall under two main separate legislative frameworks:
The Basic Regulation outlines the common rules for civil aviation within the UK and for Unmanned Aviation Systems consists of the Implementing Regulation and the Delegated Regulation. The Air Navigation Order 2016 sets out the main requirements for UK aviation and covers UK airspace (excluding flying drones indoors). A person must not recklessly or negligently act in a manner likely to endanger an aircraft or person within an aircraft (Article 240) or recklessly or negligently cause or permit an aircraft (manned or unmanned) to endanger any person or property (Article 241).
The ANO 2016 provides additional regulatory content in respect of drones that is either:
The CAA also provides guidance on regulation through the publication of Civil Air Publication Documents and the primary document is the CAP 722 Unmanned Aircraft System Operations in UK Airspace – Policy and Guidance.
The Air Traffic Management and Unmanned Aircraft Act 2021 was designed to clamp down on the illegal use of unmanned aircraft by giving police powers to respond. Schedule 8 enables officers to instruct a pilot to land their drone, stop and search people or vehicles to find drones or drone equipment, and to confiscate drones or drone equipment found during a search. Pilots may be required to show their registration details and other information including evidence of permission to fly where that is necessary. A fixed penalty system enabling police to issue on the spot fines for certain offences was introduced and is under development.
Drone regulation is largely situated in relation to aviation law. As such, in exploring incidents of drone misuse and their associated harms, we were interested in whether such a legal basis adequately reflects emerging concerns and challenges. Public concerns identified in the Future Flight Challenge – Mini Public Dialogue, a Sciencewise report, include the potential for collisions in the air and the risk to people and property below, privacy implications of drones accessing and recording personal spaces and intruding into people’s private and domestic lives, visual and noise pollution. Security issues have also been raised, with concerns expressed regarding the use of drones for criminal activity. For example, the use of drones to bring drugs into prisons prompted the government to introduce regulations limiting the height at which drones can be flown near prisons (Air Navigation (Restriction of Flying) (Prisons and Young Offenders Institution) 2023/1101)).
A series of emerging legal questions and challenges were identified during the project’s workshops, which brought together lawyers across diverse specialisms and backgrounds. These include data protection in the context of livestreaming and facial recognition technologies, responsibility and liability in respect of autonomy and artificial intelligence, and issues relating to emerging concerns around drone noise. Proposals for airspace management, such as drone highways, segregation of airspace and passage through and over houses may also raise planning and environmental law consequences. With regard to legal process more widely, evidential issues include not just the identification of the remote drone controller, but issues such as in which jurisdiction the evidence itself is held.
Drone flying has been touched on in civil case law but many questions remain to be answered including whether or not drone flying constitutes an actionable trespass (see Nicklin J in MBR Acres Ltd v Free the MBR Beagles [2021] EWHC 2996 (QB) at para 111). In terms of nuisance in Bernstein v Skyviews Ltd 1978] QB 479 Griffiths J noted that if a person ‘was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity’ he was ‘far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief’ [para 489G] and in Fearn and ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 the Supreme Court recognised that visual intrusion can constitute negligence and that ‘natural and foreseeable consequences’ arise from living in an age of smartphones with high powered cameras [Lord Leggat]. Drones paired with smartphones also facilitate harassment, stalking, surveillance and other forms of harm. The law does not appear to have definitively determined what constitutes a reasonable height above ground or the point at which intrusive viewing becomes nuisance. This is likely to be context specific and will have to be balanced against the need for drones not to fly in the path of other commercial aircraft. There are common law and statutory offences of causing public nuisance under which some forms of drone (ab)use may fall.
The invasion of privacy and taking of photographs may result in breaches of data protection law under UK GDPR and the Data Protection Act 2018 or the tort of misuse of private information occasioned by unwanted intrusion into one’s personal space. The use of drones by public authorities may impact on duties of care imposed on local authorities. For example, in Holmes v Medway Council [2018] 6 WLKUK 702 the Medway County and Family Court (sitting at Canterbury Combined Court Centre) stated that ‘drones may change the parameters of what is reasonable to expect by way of surveillance and monitoring’. Some clear and specific issues arise in respect of police surveillance using drones and, conversely, the use of drones to surveil the police.
As drones move from the military space into domestic spaces, across commercial and hobbyist iterations, they create cross-practice challenges for lawyers. Firstly, whether any remedy for drone harm lies with the regulator, in the criminal justice system or through civil law, and secondly understanding the technology and challenges it raises in relation to obtaining evidence. There are some significant evidential challenges in respect of remoteness, access to drone footage and information about the drone (e.g. through drone forensics).
Our report concludes with recommendations designed to take into account the normalisation of drone use outside a military or state context. These include:
The Law Commission has published its first consultation paper on autonomy in relation to Vertical Take Off and Landing (VTOL) aircraft which provide short journeys for a small number of people and drones which remains open until 28 June 2024 (extended deadline). A second consultation later this year and final report in 2025 are expected.
Chair of the Bar Sam Townend KC highlights some of the key achievements at the Bar Council this year
Louise Crush of Westgate Wealth Management highlights some of the ways you can cut your IHT bill
Rachel Davenport breaks down everything you need to know about AlphaBiolabs’ industry-leading laboratory testing services for legal matters
By Louise Crush of Westgate Wealth Management sets out the key steps to your dream property
A centre of excellence for youth justice, the Youth Justice Legal Centre provides specialist training, an advice line and a membership programme
By Kem Kemal of Henry Dannell
Mark Neale, Director General of the Bar Standards Board, offers an update on the Equality Rules consultation
Joanna Hardy-Susskind speaks to those walking away from the criminal Bar
Imposing a professional obligation to act in a way that advances equality, diversity and inclusion is the wrong way to achieve this ambition, says Nick Vineall KC
Tom Cosgrove KC looks at the government’s radical planning reform and the opportunities and challenges ahead for practitioners
By Ashley Friday of AlphaBiolabs
