Commentary on Sections Sentencing Section 26 – Victim surcharge
72.This section inserts new sections 253F to 253J into the 1995 Act, establishing a victim surcharge and providing for its operation.
73.Section 253F provides that the court must impose a victim surcharge on offenders who are subject to any sentence prescribed by the Scottish Ministers by regulations. However, a victim surcharge is not to be imposed where a restitution order has been imposed, or in relation to an offence or offence of a class prescribed by the Scottish Ministers. The Scottish Ministers may, by regulations, set out the amount of the victim surcharge, which can be different for different types of offender or for different circumstances (for example, this would allow a scale of surcharge amounts to be established, to reflect different sentences imposed). The Scottish Ministers may also, by regulations, set out circumstances in which the court is not to impose a victim surcharge. Subsection (3) sets out that if a person is convicted of multiple offences in the same proceedings, there will only be one surcharge imposed and, where different amounts have been prescribed for different offenders or circumstances, the Scottish Ministers may provide by regulations which victim surcharge is payable in those circumstances. Subsection (4) sets out that the surcharge is to be paid to the clerk of court or any other person authorised by the Scottish Ministers.
74.Section 253G establishes the Victim Surcharge Fund (VSF). Subsections (1) and (2) provide that the person who collects the victim surcharge (Scottish Court Service, unless the Scottish Ministers authorise anyone else for this purpose under section 253F(4)) must pass the sum collected to the Scottish Ministers; and that the Scottish Ministers must then pay this amount into the VSF. Subsection (3) requires the Scottish Ministers to establish, maintain and administer the VSF for the purpose of securing support services for persons who are or appear to be victims of crime and their prescribed relatives. Subsection (4) sets out that the VSF can only be used to make payments to a person who is or appears to be a victim of crime and prescribed relatives of such a person, or to those who provide or secure the provision of victim support services, or to the operator of the VSF in respect of the costs of administering the VSF. Where the Scottish Ministers have delegated the establishment, maintenance and administration of the VSF, by virtue of subsection (5), the costs of administering the VSF may only be recovered with the consent of the Scottish Ministers.
75.Subsection (5) allows the Scottish Ministers to delegate responsibility for establishing, maintaining and administering the VSF to a third party. The Scottish Ministers are given a regulation making power in section 253G(6) to make further provision about the administration of the VSF. An order under subsection (5) and regulations under subsection (6) are subject to the affirmative procedure by virtue of subsection (7). Subsection (8) provides a definition of “support services”. Subsection (9) provides that any regulations under subsections (3), (4) and (8) (prescribing the relatives of victims who may receive support services funded by the VSF or direct payment from the VSF) are to be subject to the negative procedure.
76.Section 253H details the order in which payments must be made when an offender incurs more than one financial penalty in relation to the same proceedings. Payments must be made firstly towards any compensation order to the victim, then to the victim surcharge, then the fine.
77.Section 253J provides that the provisions in the 1995 Act listed in subsection (2) shall apply to the victim surcharge in the same way as they do to fines. As with restitution orders (see paragraph 72), these include matters to do with the enforcement, remission, part-payment, recovery, transfer and mutual recognition of fines, as well as what to do in the case of default and provisions about time for their payment, disqualification from driving and imprisonment as means of enforcement or punishment for default, and discharge from imprisonment. Subsection (3) provides that a court may impose imprisonment as a means of punishing default on payment of a fine, but decline to do so for the victim surcharge but not vice versa. In addition, by virtue of that subsection, where imprisonment is used to punish default on payment of both a fine and the victim surcharge their amounts shall be aggregated to establish the appropriate duration of that imprisonment.