18 November 2019

Duty-holders who commit Regulatory crime, including businesses and individuals convicted for environmental or health and safety offences, are generally all too aware of the financial cost of such crime. Whilst the economic consequences of reduced productivity, increased compliance costs, HSE Fees for Intervention and financial penalties imposed by the Courts are well-known repercussions, there is another punitive measure coming into force for new offences committed on or after 25 November 2019: the Victim Surcharge.

This Surcharge will be imposed by the Scottish Courts on those fined for committing offences after that date. The new Victim Surcharge is mandatory where the Court imposes a financial penalty, even in such cases where there has been no identifiable “victim”.

The penalty is payable to the state in the same way a fine is. It is based on a sliding scale which is tied to the amount of fine the Court imposes for the offence, as shown below:

The Victim Surcharge has been operating for many years South of the Border; however unlike the position there, in Scotland there is no cap on the Surcharge (other than for Summary offences where the fines are capped), perhaps to remove the criticism of the Southern position that the cap was disproportionately punitive on those with the lowest means.

In practice, for companies prosecuted summarily for a breach of health and safety law, the maximum Victim Surcharge would be £1,500 (7.5% of the maximum £20,000 fine). For those prosecuted on Indictment however no such cap applies, so a £500,000 fine would result in an additional £37,500 being payable to the Victim Surcharge Fund by the Offender.

Its purpose is to secure the provision of support services for persons who are the victims of crime (and those most closely connected to the victims) who may apply to the fund for such assistance as may be required, with payments being made from 25 March 2020. Claims for damages via the civil Courts may still be the primary recourse for those impacted by Regulatory crime, but the Surcharge system with its wider application to relatives of those affected will increase the cost of such crime. As with the fine itself, it is unlikely to be underwritten by Insurers.

For any further information on this topic please contact BTO’s top tier Regulatory and Criminal Defence Team.

Contact: Amy Anderson, Senior Solicitor, aan@bto.co.uk T: 0141 221 8012