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The Prosecutors

Series documenting the work of the Crown Prosecution Service.

About this series

Filmed with behind the scenes access to the Crown Prosecution Service, The Prosecutors series one and two provides an extraordinary insight into the work of prosecutors, including a reinvestigation of the 'Babes in the Wood' case, opening a historic sex abuse case, dealing with violent domestic murders, tackling an organised criminal gang flying drugs into prisons and a shadowy network using children as slaves in UK nail bars.

Read more about both series on the BBC's programmes pages  or find out more about double jeopardy, law and modern slavery here with the OU. 

Discover the range of qualifications and modules from the OU related to this programme:

A memorial for Kas and Nicky from BBC The Prosecutors - Babes in the wood episode
A drone is hovering above the ground, with its pilot controlling it in the background

New Technology and Crime: Drones

How does the criminal law adapt to rapid changes in modern technology? Does the use of drones to fly drugs into prisons challenge the ability of the law to tackle new forms of offending effectively?

A drone in flight

Photo by Josh Sorenson on Unsplash

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

A drone files next to the brick wall of a building

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

Man amending papers

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.

Meet the OU experts

Caroline DerrySenior Lecturer in Law - The Open University Law SchoolVIEW FULL PROFILE
Caroline DerrySenior Lecturer in Law - The Open University Law School

Caroline has taught criminal law for over fifteen years, and is currently a team member on the OU Module W203: Public Law and Criminal Law, a second-year module on the undergraduate law degree which covers all areas of constitutional and criminal law in England and Wales. She also chairs Module W101: Introduction to Law, a first-year module introducing students to law, the legal system of England and Wales, and key concepts in criminal and civil law. She is the co-author of Complete Criminal Law (6th edition, OUP).

Her specialist research is primarily in criminal law, both current and historical. She is particularly interested in gender, sexuality and criminal law and have published in this area. She also researches the history of women in the legal profession, focusing upon the first women barristers. She regularly presents her work at international conferences.

Before entering academia, she qualified as a barrister practising in criminal defence, and then as a solicitor in criminal, personal injury and housing law. 

Caroline was the academic consultant on Series 2, Episode 3 'Babes in the Wood' of The Prosecutors.

Dr Simon Lavis, Senior Lecturer in Law, The Open University Law School
Dr Simon LavisSenior Lecturer in Law - The Open University Law SchoolVIEW FULL PROFILE
Dr Simon Lavis, Senior Lecturer in Law, The Open University Law School
Dr Simon LavisSenior Lecturer in Law - The Open University Law School

Simon has been a lecturer in the Open University Law School since October 2013, before which he undertook his PhD research at the University of Nottingham. Prior to that he studied law at the University of Birmingham and the University of Law, and history at the University of Sheffield. He qualified as a solicitor of the Senior Courts of England and Wales in 2009, but left the profession to pursue a career in academia and is currently non-practising.

Simon’s research is primarily in the history and theory of law in Nazi Germany 1933-1945, with a secondary interest in public law in the UK. He has published his research in academic journals and presented at conferences in the UK, Europe and internationally.

In terms of teaching, Simon is Chair of W203 Public Law and Criminal Law, and works on the module teams for W340 Law, society and culture and W350 Exploring legal boundaries. He is an Associate Lecturer on W203 and has also tutored on W821 Exploring the boundaries of international law, on the LLM degree.

Simon was the academic consultant on Series 2, Episodes 1 'Modern Day Slavery' and 2 'Prisons, Drugs and Drones' of The Prosecutors.

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