Legal: Plans to make criminals pay in the balance

It’s known to some as a tax, while others see it as a mechanism for criminals to make some recompense to the communities they have harmed.

Section 22 of the Victims and Witnesses Bill, introduced at Holyrood last month, proposes bringing in a victim surcharge that effectively replicates the scheme that has been in place in England and Wales since 2007.

The idea is that convicted offenders will pay a relatively small amount, in addition to their punishment, into a central fund which is then distributed to charities and organisations working to support victims of crime.

It is a sound idea in principle: resources go to victim support services while criminals know they are paying extra specifically towards victims of crime.

The scheme south of the Border, however, has attracted some criticism. For example, the magistrate or crown court judge has little discretion over the surcharge, and must levy it regardless of the offender’s income or assets – causing some to disparage it as simply a tax. Critics also see it unfair that heavy-duty criminals have paid the same amount as first time offenders.

Initially, a uniform £15 was levied on every convicted offender given a fine, although the scheme did not apply to fixed notice penalties following a campaign by the motoring lobby. The rules were changed in October 2012 to increase the scope of crimes covered, and because it was felt criminals were not contributing enough. Since October, the surcharge has been levied at different rates ranging between £20 and £120, varying in relation to the sentence imposed.

Central government gives about £66m per year to victims of crime in England and Wales. Criminals contribute about one-sixth of the overall pool. The government estimates the recent changes will mean criminals will chip in an extra £50m per year.

The proposals in Scotland are to set the surcharge between £20 and an unlimited amount depending on the severity of the offence. In most other respects, the proposals follow the English model.

One problem with the scheme south of the Border has been that the surcharge is collected along with a fine – often very slowly and in instalments. Low-income offenders often take years to pay their fines and, where a judge has ordered that they pay direct compensation to their victim, this can add insult to injury for their victims as offenders deliberately stall payments.

John Thornhill, a Liverpool magistrate, said: “If we order compensation in court then it goes to the victim but the victim only gets it at the rate it is paid by the offender. Every time £5 comes through their door, it reminds them of the crime. What should happen is that they receive the money upfront and in full from a central fund and the offender should pay in to that fund on a weekly basis. Why should the victims wait?”

Another quibble is that, although the victim surcharge is paid into a general fund which goes towards organisations that help victims, the individual victim affected by the crime does not necessarily see the benefit.

On the other hand, some say that is a good thing. Rebecca Roberts, senior policy associate at the Centre for Crime and Justice Studies, said: “Most victims of crime don’t come to the attention of the criminal justice system, for one reason or another, so we need a more holistic approach. Better funding for victims’ organisations is a good idea, although I am sceptical it will be achieved through the victim surcharge. These policies make good headlines when they come out but there are questions about how well they work in practice.

“A lot of people convicted of crimes have low incomes and we would be concerned about their ability to pay. If they can’t pay then this can lead to them becoming further enmeshed in the criminal justice system. It may simply not be cost effective in the long run to chase up some unpaid debts.”

Roberts says that, for many victims, the NHS, educational services and social services may be a better source of appropriate support than the criminal justice system.

“The criminal justice system is largely focused on getting successful convictions rather than offering the practical and emotional support that victims need. If you have been injured, you may need medical attention; if you have been traumatised, you may need emotional support; and if you’ve had your property damaged, you probably need it repaired. Unfortunately people on low incomes are often less able to access services and are unable to pay for insurance that many people take for granted.”

In the past five years, the victim surcharge has raised approximately £41.9m, all ring-fenced for victim services. In 2011-2012, £11.234m worth of surcharges were imposed but £10.165m had been collected. £1.436m had to be written off from previous years.

Offenders who skip fine payments, move house, refuse to pay or who simply cannot pay cost the taxpayer money. Letters have to be sent, bailiffs instructed, non-payers recalled to court, more magistrates’ time is taken up. This would have to be done for non-payment of fines anyway but it is perceived the surcharge increases this burden. Offenders given custodial or community sentences still have to pay the surcharge. This can then lead to a cycle of non-payment, reappearance in court and further penalty.

District judge Tim Devas’ action in Mansfield Magistrates’ Court last month illustrates the frustration that can arise from such strict rules. Faced with a homeless thief who stole two letters from the Christmas post, he ordered him to pay a £1 surcharge, then pulled a £1 coin from his own pocket and paid it himself. He told the court that the government should change its rules and, turning to the reporters’ box, said: “My chances of getting a knighthood are pretty slim anyway.”

The offender should have paid £60 as he was given a community sentence.

There is also the victim’s viewpoint to consider. While the government has bolstered the victim surcharge, the Criminal Injuries Compensation Scheme (CICS) has had its funding cut. The scheme made awards to between 30,000 and 40,000 people each year. However, it will now concentrate on the most serious injuries.

In November, ministers cut five payment levels from the categories of those eligible to apply, making an estimated saving of £50m from CICS’s annual £200m budget. Victims who suffer less serious injuries such as a broken nose, temporary deafness or minor concussion can no longer seek compensation. Most injuries that attracted awards of £1,000 are now excluded.

People with unspent convictions have also been excluded from the scheme, regardless of the nature of the offence. So a person who is raped will be unable to claim compensation if they have a four-year-old conviction for cannabis possession.

The difference between the criminal injuries scheme and the victim surcharge is that victims of crime eligible under the CICS scheme can claim compensation even if no perpetrator is caught. They get a payment all to themselves, however fast or slow the wheels of criminal justice turn.

The Holyrood Justice Committee has invited people and organisations with views on the victim surcharge scheme and several of the other victim proposals in the bill, including the right to make victim impact statements, to contribute to its deliberations.

Convenor, Christine Grahame, says, “we need to ensure the balance between victims’ rights, the presumption of innocence and the rehabilitation of offenders is achieved.”