The victim surcharge

Law Society Policy Executive Gillian Mawdsley provides an update on the victim surcharge regulations which were introduced in November 2019.

What is the victim surcharge?

New regulations are behind the introduction of a new 'victim surcharge'  on top of fines for offences committed on or after 25 November 2019, The money from the surcharge will be paid into a Victim Surcharge Fund and used to help provide support to people who have been victims of crime, although no payments will be made from the fund until May next year.

The Victim Surcharge (Scotland) Regulations 2019 (2019 Regulations) make provisions for the operation of the victim surcharge and administration of the Victim Surcharge Fund.  

Section 253 F1 (c) of the Criminal Procedure (Scotland) Act 1995 (in implementing the Victims’ Rights Directive) sets out that where the court imposes a sentence, an offender must be ordered to pay a victim surcharge of such amount as may be prescribed.  This applies only when offenders are sentenced to pay a fine. It will also apply regardless of the offender being an individual or any other corporate entity. 

The surcharge payable is tapered according to Schedule 1 of the 2019 Regulations:

Schedule 1 of the 2019 Regulations:

Unlike in England and Wales, there is no cap on the surcharge which can be imposed. Where a fine exceeds the statutory maximum, the victim surcharge will be levied at 7.5%. This is likely to have quite significant implications in cases involving fines on health and safety matters. 

Where an offender is sentenced to more than one fine, the victim surcharge is applied to the aggregate amount of the fine. For example, where the offender is sentenced to fines of £300 and £500 for two offences such as Sections 3 and 143 of the Road Traffic Act 1988, the victim surcharge which is payable will be £40. 

Section 1(4) of the 2019 Regulations refers that where an offence is found to have been committed over a period of two or more days, the offence is to be taken as having been committed on the first of those days. That means if the offence arose during the period from 20 November to 20 December 2019, no victim surcharge would be payable.

The effect on sentencing

The impact of the victim surcharge remains to be seen. Before 25 November 2019, a fine for a contravention of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 may have been £400 but after 25 November, the total amount payable will be £420.

The distinction in the fine should be made clear to the offender as they have different purposes. The fine itself lies within the judges’ discretion, bearing in mind the facts and circumstances of the case and reflecting their view on an appropriate sentence, whereas the imposition both of the victim surcharge and the amount is mandatory. The fine may well be subject to an appeal so it would be appropriate to focus on that amount.

From a sentence discount perspective in terms of section 196 of the 1995 Act, the discount should apply to the fine and not to the victim surcharge.

Section 2 of The Enforcement of Fines (Relevant Penalty) (Scotland) Order 2019 provides that the victim surcharge is a relevant penalty for the purposes of section 226I of the 1995 Act. That means the victim surcharge will be subject to the usual provisions regarding fines enforcement that include potential deduction from earnings and benefits.

The Victim Surcharge Fund

Section 5 of the 2019 Regulations deals with the administration of the Victim Surcharge Fund. The purpose of the fund is to make offenders more accountable for the harm or damage caused by their actions and should contribute to supporting the needs of victims of crime. Guidance on the fund is to be published by Scottish Ministers by 25 May 2020.

No payments are to be made from the fund prior to 25 May 2020. Under section 6(2) of the 2019 Regulations, payments from the fund can only be made where a relevant person has made a written application for payment and that payment has been authorised.

Under Section 7 of the 2019 Regulations, Scottish Minsters are to keep records regarding the fund. Under Section 8, Scottish Ministers must publish the first report on the administration of the fund no later than 31 July 2021.

The victim surcharge will only apply to fines, although there is scope for the surcharge to be extended to other sentences by Scottish Ministers.