Rufus Ballaster, a Partner at Carter Lemon Camerons LLP, said that equivalent measures in an English or Welsh prison would have the potential to create a variety of property law issues. His comments follow the news that Les Nicolles prison on Guernsey is to install a 600m electronic shield, known as a Sky Fence, bouncing the drone back to where it came from in an effort to prevent the smuggling of contraband.
“Force fields like this one are the stuff of the science fiction on which I grew up”, said Rufus, who is writing ‘A Practice Guide to Drone Law’ for a professional legal audience with fellow Carter Lemon Camerons LLP partner, Andrew Firman and consultant, Eleanor Clot. Yet, whilst such technologies were previously works of fiction, Rufus now considers their impact to be potentially significant.
He said: “If an English Prison were to implement Sky Fence, or a similar drone-blocking concept, it would have to explore its own title boundaries carefully, unless primary or secondary legislation specifically empowered the prison to block flight above neighbouring land.
“In my view, the owner of land and buildings does control the right of access into the Lower Stratum of airspace above that property and so can take appropriate measures to block unwanted flight above what it owns.”
He added, however, that the potential problem with drone countermeasures is that they cannot be tightly matched to the boundaries of a property. “Many prisons will not own the full 600m doughnut zone outside their prison walls and blocking drone use in neighbours’ airspace would be just as much a trespass as low-level flying without permission over a prison or house would be. What is more, self-help steps to prevent trespass must be reasonable and appropriate”, said Rufus.
However, according to Rufus, the issues that could arise from the use of drone countermeasures are not limited to property considerations, with potential problems arising around liability and airspace considerations. He said: “We have yet to know if a drone affected by Sky Fence were to set off for its ‘home’ and during flight hit another object, whether that would result in liability for the person originally in control of the drone, for the manufacturer which programmed its systems or for the property owner using Sky Fence.”
Despite his concerns, Rufus agreed that the abuse of drone technology for criminal purposes is a real problem, which threatens to see even more drugs and contraband smuggled into prisons. However, he said it was important to keep this threat in perspective.
“Very occasionally a civil passenger aircraft suffers a fault or is affected by a catastrophic event. Lessons need to learned, but one does not simply stop all flights as a proportionate reaction.
“The current default private property law position is that every landowner can object to drone over-flight, even if the drone operator is complying with CAA regulations, yet the UK wishes to be a global leader in drone technology.
“If we are to keep pace with China and the USA, our domestic property laws need to be tweaked to empower safe, sensible route-planning for a drone delivery sector, which gets parcels, fast food, or even medical supplies – possibly including transplant organs – for the NHS quickly to where they need to be.”
References: Carter Lemon Camerons LLP
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