The government announced last week that operators of drones weighing 250g or more will be required to both register their drones and complete mandatory competency testing (covering safety, security and privacy). In justifying this change the government says it will “improve accountability and encourage owners to act responsibly”.
The move, set out in the Department of Transport’s July 2017 response to its December 2016 consultation, has been expected for some time. As noted in our previous blog, the registration of drones was recommended in March 2015 by the EU Committee of the House of Lords in its ‘Civilian Use of Drones in the EU’ report. Drone registration has been championed as the answer to the difficulties faced in enforcing laws against operators who, being physically located some distance from the drone, are often impossible to identify.
These changes are the product of the gradual but significant increase in the government’s attention on the regulatory framework surrounding the use of drones. Implementing an unmanned traffic management system (UTM) is still being considered as a priority, as is geo-fencing, whilst increasing penalties under the Air Navigation Order 2016 has been mooted. The government’s 2017 response also notes that drones might be prevented from flying near airports (to address the increase in near misses).
Whilst the growth in the regulatory drone framework is unsurprising, questions have been asked about the fairness of an enforcement regime reliant on identifying registered owners who might not be the individual operating the drone at the time of an alleged offence. This issue is nothing new however. In speeding offences it is frequently impossible to identify the driver who may, or may not, be the registered keeper. To remedy this lacuna, section 172 of the Road Traffic Act 1988 provides the police with the power to write to the registered keeper of a car requiring them to provide them with information on who was driving at the time of the alleged offence. If they fail to respond – unless the registered owner does not know and could not with reasonable diligence ascertain who the driver of the vehicle was – they will be guilty of an offence punishable by a fine. The European Court of Human Rights held in the case of O’Halloran and Francis v UK(2007) 46 EHRR 21 that whilst the compulsion contained within section 172 did infringe on Article 6 of the European Convention on Human Rights – in particular the right to remain silent or the privilege against self-incrimination –it was a permissible, proportionate, infringement. A like provision for drone registered owners would give proper effect to drone offences whilst providing necessary protection to registered keepers.
For a general overview of the law of drones see Annex C of the consultation response.