Zoe McDonnell

Scottish judges and sheriffs will soon have no option but to impose an extra penalty on offenders who are sentenced to a fine following conviction of a crime or offence in Scotland. This will apply to offences committed on or after 25 November. The additional money raised will be banked in the Victim Surcharge Fund. Victim support organisations will be able to apply for money from this fund to assist them in meeting the cost of victim support services. Payments will start to be made from the fund by mid to late 2020. The Scottish government’s policy reason for the new scheme is that “criminals should pay towards helping victims to recover and move on with their lives.”

Scotland is not the first part of the UK to introduce a victim surcharge. It was introduced for England and Wales in April 2007 where it has proved controversial. Concerns arose around the ability of offenders to pay, the removal of judicial discretion and the application of the scheme to those sentenced to modes of punishment other than fines, notably imprisonment. Changes, including increases to the level of payment, were made to the scheme for England and Wales in 2012, 2014, 2016 and earlier this year.

Both north and south of the border, the surcharge schemes apply to all fines, but the scales for payments are different between the two jurisdictions. South of the border, the surcharge when a fine is imposed on an offender over 18 or an offending organisation is currently 10 per cent of the fine with a £32 minimum and £181 maximum, inviting criticism that the burden falls disproportionately on those fined small amounts. North of the border, a sliding scale of surcharge payments is to apply for all crimes and all offenders, including organisations. The Scottish surcharge starts at £10 for fines of up to £200. The scale increases incrementally to £350 for fines between £5,000 and £10,000. The scale reaches its peak in Scotland for fines above £10,000 at 7.5 per cent of the fine, with no capped maximum figure.

Therefore, those who are fined the most in Scotland will pay the most into the Scottish fund. In 2017-18, 38,474 fines were ordered by Scotland’s courts. The money generated by this scheme could, therefore, be substantial. If the victim surcharge had been in operation at the time of the offence which led to a significant fine being imposed in 2016 on a power company, £90,000 would have been added to the penalty. It should be borne in mind that companies are required by law to buy certain liability insurance to meet civil compensation claims made by those wronged by any negligence for which the company is liable. Should such companies also be required by the criminal law to pay for support of victims of violent crime and crimes of dishonesty, where the actual perpetrator of such crimes might be dealt with other than by way of a fine and therefore not be subject to the surcharge?

Controversy south of the border arose on the automatic imposition of the surcharge in the context of those convicted of comparatively minor offences. Is it fair, for example, that a person who offends by failing to pay a television licence is required to contribute to a fund that is designed to provide practical support to victims of crime in general?

The sentencing guideline issued by the Scottish Sentencing Council which took effect from 26 November 2018 outlines the principles and purposes of sentencing. The core principle of that guideline is that “sentences in Scotland must be fair and proportionate”. This requires that sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case.

As with the scheme in England & Wales, the Scottish scheme may develop over time. When announcing the Scottish scheme, the Justice Secretary said that “over the coming year we will also be carrying out further work to better understand where the gaps are in how Scotland supports victims and witnesses.” Scottish ministers have power to exempt certain criminal offences from the operation of the Scottish scheme. It will be interesting to see whether, and if so to what extent, that power is ever exercised.

Zoe McDonnell is an associate at BLM