Victim surcharge: unintended consequences

I have always felt uneasy about the victim surcharge, introduced into our legal system just over five years ago. If you commit a crime, you should be punished by the state – generally by paying a penalty or forfeiting your liberty. If you harm an individual, you should compensate your victim – and it is perfectly sensible for compensation to be ordered by a criminal court, avoiding the need for a victim to sue.

But which category does the victim surcharge come into? It is paid to the state in the same way as a fine, whether there is an identifiable victim or not. But, according to a recent circular from the Ministry of Justice, it is ‘ring-fenced to fund emotional and practical support services for victims of crime’. Relatively small sums fund caseworkers and counselling services around the country.

Until recently, the surcharge was no more than a minor irritation for the courts. It simply increased the level of every fine by £15. But, of course, ministers could not leave well alone. It was an irresistible opportunity to look tough and raise cash for services that, if really needed, should be state-funded.

So new regulations were brought into force on 1 October last year. Offences committed before that date are covered by the old regime and so it is only in recent months that the courts have started to grapple with the new regulations.

In the case of a fine, the surcharge is now set at 10%, with a minimum of £20 and a maximum of £120. The burden falls disproportionately on those fined small amounts and has negligible impact on companies fined large sums under, for example, health and safety legislation.

In most cases, the surcharge must be ordered even if there is no financial penalty. So the courts can no longer let a mentally ill or penniless defendant off with a conditional discharge; in such cases, a ‘surcharge’ of £15 must be imposed.Subject to some exemptions in the magistrates’ courts, there is now a surcharge of £60 in the case of a community order; £80 for a suspended or immediate sentence of six months or less; £100 for a suspended or immediate sentence of above six months; and £120 for a sentence of more than 24 months. The regulations also carefully specify that £120 must be paid by those sentenced to life imprisonment.

As the well-known author of the Magistrates’ Blog wrote recently: ‘The genius who cooked up these new rates only needs to spend a morning in a courtroom to see that a high proportion of those dealt with are broke, with the majority on benefit.’ Lower surcharges apply to offenders under the age of 18. In those cases, the surcharge must be paid by the young offender’s parent or guardian unless they cannot be found or it is unreasonable to require them to pay. And that led to immediate unintended consequences.

As the MoJ explained in a circular at the beginning of this year: ‘Several cases have been brought to our attention by the Youth Justice Board where this legislation has resulted in the parent or guardian of a juvenile becoming liable to pay the surcharge when they have in fact been the victim of the offence.’

You can imagine what was happening. A tearaway teenager steals money from his mother’s purse. The mother bravely shops him to the police. The lad pleads guilty and is given a community sentence or locked up. His mother never gets her money back. And then she is ordered to pay up to £20, supposedly to help people like her.

Since the surcharge is mandatory, the court cannot avoid imposing it on the offenders themselves. The best advice that the ministry can offer is that courts should defer payment until the young offender is likely be able to pay the surcharge himself, ‘for example, after turning 18’.

It gets worse. Courts are required to take account of an offender’s means in imposing fines or ordering compensation. But no such discretion applies to the surcharge. ‘It is madness,’ one circuit judge told me. ‘Punters will either commit more crimes to pay it or will ignore it.’

The judge questioned whether prison governors had the power to deduct the surcharge from a prisoner’s wages. ‘This means that money is either being taken unlawfully from prisoners or not being collected unless handed over voluntarily.’

Both the judge and the magistrate I quoted earlier said it would cost more to collect the surcharge – at least from prisoners – than it would raise for victims. But with the figure for unpaid fines and compensation orders already running at around £600m, nobody will notice if it goes higher still.