Victim Surcharge

Victim Surcharge

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What is it?

It is an ‘ancillary order’ to any sentence. When a Court sentences someone for an offence, then they must also order a ‘surcharge’ to be paid to the Government. It was first introduced by the Domestic Violence, Crime and Victims Act 2004 (inserting a s161A-B Criminal Justice Act 2003).

It’s actually not called a ‘victim surcharge’ anywhere, but is generally referred to as that because the money goes to the ‘Victim and Witness General Fund’ (you can see  a full list of organisations that benefit from this here).

This factsheet applies to offences committed on or after 1st October 2012. Before then, it only applied to fines and was a flat rate £15.

 

How much is it?

The amount depends on the age of the defendant (at the time of the offence) and the sentence :

Over 18 at the time of the offence

Sentence

Amount to be paid

Conditional Discharge

£15

Fine

10% of the fine, (but no less than £20 and no more than £120

Community Order

£60

Suspended Sentence (6 months or less)

£80

Suspended Sentence (over 6 months)

£100

Prison (6 months or less)

£80

Prison (6 months to 2 years)

£100

Prison over 2 years (including life or IPP)

£120

 

Under 18 at time of offence

Sentence

Amount to be paid

Conditional Discharge

£10

Fine, YRO or Referral Order

£15

Any custodial sentence

£20

If someone gets an absolute discharge, then there is no victim surcharge to be paid.

 

What if there are more than one offence? What if different sentences are passed?

You only have to pay one surcharge per sentencing hearing, irrespective of how many offences are dealt with at the same hearing.

If there are different sentences passed, then you have to pay the amount that corresponds to the highest amount. So, if you got 3 months and 9 months concurrent, you have to pay £100.

Note – if there are multiple offences and one or more were committed before 1st October 2012 then the ‘old rules’ apply and the surcharge is only paid if there is a fine imposed, and in that case it is set at £15.

 

What happens if its not paid?

Although it is effectively a fine, its’ enforced differently – by the Magistrates’ Court in the way that they enforce costs and compensation orders (s41 Administration of Justice Act 1970 – see Burke [2013] EWCA Crim 1092).

 

Is there any discretion? 

No. Which creates an obvious problem. Many people come before the courts have no money and no means of paying a surcharge. Also, it is silly (and potentially pretty offensive) to say to someone who is being sentenced to life imprisonment for murder that they need to pay a ‘victim surcharge’ of £120. It’s obviously not going to be collected and just adds insult to the injury of the victim’s family.

The only exception is if the Court makes a Compensation Order as well as any other sentence. In that case, if the Judge concludes that the defendant can’t afford to pay both, then s/he can reduce the amount of the surcharge to zero (if necessary). 

You can see here for how a District Judge used this provision as a way out of the absurdity of the legislation.

In reality, this is just going to add to the £600 million of unpaid fines.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

18 COMMENTS

  1. Why to this fund instead of to a fund to de distributed to victims of crime generally?

    My guess is this. The government which introduced it were into serious the control-freakery but that’s not the whole story.

    Much of the money charged in this levy, and actually paid, comes from motoring cases. Now one of these days a released rapist of child-molester will be the victim of serious crime; either a revenge attack, or just being in the wrong place at the wrong time. And imagine the reaction of the Daily Hate Mail at money levied on respectable (and DHM-reading) but speeding motorists being given to him!

    It’s bad enough that they get damages if they are attacked in prison, or that CICA will pay them out if they are attacked on the outside – but at least that’s general taxation, not money taken from the motorist.

    Better to hand it to this worthy fund who will pay it out to “suitable” organisations!

  2. An excellent summary. I’d add only one additional clarification, and a comment.

    The 10% of the fine figure applies only to the highest fine, so if a court imposes two or more separate fines, the surcharge can be levied only on the higher/highest fine imposed (which may explain why some courts adopt a ‘no separate penalty’ approach in certain instances, so as to be able to levy the full maximum of £120).

    The comment is that even in the magistrates’ courts, when dealing with such matters as environmental crime (where extremely high fines may be imposed), there is a real bathos in adding “and a £120 victim surcharge on top of the £75,000 fine.”

    • Thanks for that, it’s a fair point! I’m not a huge fan of the surcharge – it strikes me as pointless and will be offensive in many cases (if my loved one was killed, the perpetrator being told to pay £120 for the ‘victim’ would strike me as a kick in the teeth).

      I’ve been on the wrong end of a £30,000 fine (not me personally thankfully) and to have £120 added on would have been surreal (this was a while ago)!

  3. As the amount is separate from but added to the fine ie: surcharge, and is stated as being revenue raised by the government to pay for victims of crime, does the victims surcharge constitute a tax ? I have discussed this with several people, all with varying beliefs. I would much appreciate a definitive answer to this question if anyone has one.

    • A very interesting question in many ways. My view is that it probably does, but there’s no definitive answer. In England there probably won’t be as whether or not it’s a tax is not a relevant factor.

      In Canada there are cases going through in relation to this, where if it is found to be a tax there will be constitutional implications, but I’m not a Canadian lawyer I’m afraid!

      • Thank you for your reply danbunting. I must admit that looking on the Sentencing Council website, they refer to the victims surcharge as “Revenue raised by the Government to assist victims of crime”. I have always believed that money raised by Governments constitutes a tax, hence the existence of Her Majesties Customs and Revenue (HMCR). You are quite though it is a tricky question to answer particularly as it may embarrass the Government to admit that it may indeed be a tax.

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