Making Justice Work for Victims and Witnesses

8 Making Offenders Pay

A Right to Compensation

8.1 The consultation paper notes that the draft EU Directive on Victims envisages that victims will be entitled to obtain a decision on compensation by the offender within a reasonable time, except where national law provides for such a decision to be made in other legal proceedings. Member States are required to promote measures to encourage offenders to provide adequate compensation to victims. The Scottish Government is also committed to establishing a more direct link between offenders and compensation for their victims. Section 249 of the 1995 Act provides for a compensation order to be granted and where a person receives a fine and a compensation order but cannot pay both, the compensation order takes priority.

8.2 The SG considers that where an offender has caused harm, loss or distress to an identifiable victim, the first recourse should be to ensure the offender pays compensation direct to the victim. The current law is phrased to allow the courts to consider compensation and SG proposes to strengthen this position so that courts are required to consider the provision of compensation wherever a victim has suffered injury, loss or distress. This will not affect the ability of the victim to apply to the Criminal Injuries Compensation Scheme (CICS) where an award ordered by the court is lower than the relevant CICS tariff due to considerations over the offender's ability to pay. Question 39 of the consultation paper asked 'do you agree that courts should be required to consider the issue of compensation in all cases where an identifiable victim has suffered injury, loss or distress?' and to provide comments on their reasons.

8.3 A total of 55 consultees responded to this question; with a majority (36) agreeing and only 7 disagreeing. A further 12 consultees did not provide a definitive response but did provide commentary.

8.4 Those responding 'yes' were represented across all sub-groups, with the exception of public bodies and 'other' organisations; these were 12 local authorities, 6 police organisations, 6 voluntary sector organisations, a legal organisation and 11 individuals. All bar 3 of these provided additional comments.

8.5 Of the 7 answering 'no' to this question, 3 were voluntary sector organisations, 3 were local authorities and one was a public body.

8.6 Fifteen consultees were in general agreement of the need for courts to be required to consider the issue of compensation in all cases where an identifiable victim has suffered injury, loss or distress (8 local authorities, a legal organisation, 3 voluntary sector organisations, a police organisation and 2 individuals). These consultees noted their general support for this proposal and noted that this issue needs to be given consideration or that they supported the general principles of payment.

8.7 Seven consultees noted that this holds offenders directly accountable for their crime(s) or that it helps them to appreciate the impact of their actions upon their victim(s); this was cited by 2 local authorities, 2 police organisations and 3 individuals. Linked to this point, 6 consultees also noted that this links the crime to the victim (2 local authorities, a police organisation and 3 individuals).

8.8 Five consultees (2 police organisations and 3 individuals) felt that this allows victims to be directly compensated to offset any loss or payments, including medical treatment, loss of earnings, counselling, stress and anxiety etc. Three consultees (a voluntary sector organisation, a local authority and an individual) also noted that the CICS can take a long time to process and pay out applications. One individual referred to specific types of crime including stalking, abuse and serious crimes.

8.9 While there was support for this scheme, 3 consultees (a police organisation, a local authority and a voluntary sector organisation) felt that the offender's ability to pay needs to be taken into account. For example, the local authority noted,

"Whilst we agree that compensation must be considered in all cases, cognisance must be taken of the offender's ability to pay compensation. We are aware that many offenders have limited income and already find difficulty in paying fines. An increased use of compensation will also punish the families of offenders, which is clearly not the point of compensation. It could also lead to additional problems for the system if these are not paid. Many offenders are already not paying fines and are having Level 1 Unpaid Work Requirement CPOs, imposed, (previously Supervised Attendance Orders were imposed for fine default). A significant increase in the use of compensation could lead to increased non-payment of fines. Also if a compensation scheme took into account the offender's limited financial circumstances in imposing compensation there could be the potential for the amount of compensation imposed to be seen as derisory by the victim and therefore be counterproductive."

8.10 Linked to this latter point in the above quote, 3 consultees also commented that the amount of compensation awarded could be considered inadequate by some victims (2 voluntary sector organisations and a local authority). Furthermore, 2 consultees (a police organisation and a local authority) also queried what would happen if a fine was not paid or that this proposal could lead to increased numbers of fines not being paid. Two other consultees (a voluntary sector organisation and a local authority) also noted that the impact on the offender's family needs to be considered. This voluntary sector organisation also noted that additional consideration would be needed for offences occurring within a domestic context where the offender and victim are part of the same household.

8.11 Other comments made by only one consultee were:

• Introduction of a process to secure compensation payments;
• A need for the formal recognition and acknowledgment of the suffering of the victims;
• Victims should not have to pursue non-payment of compensation;
• Concern that proposed changes to the CICS will reduce the numbers of victims able to apply to the scheme and set up barriers for application from other victims;
• Stringent penalties in instances where compensation payment is not made;
• Protection measures in place in cases where there might be repeat offending;
• A requirement to consider this but not to be automatically implemented; with the prime source being the Criminal Injuries Compensation Board;
• This might not be the most appropriate disposal in all cases but should be considered by the court;
• This should not only be limited to court disposals;
• Baseline information on compensation levels used in civil court actions and CICA levels of awards is needed;
• This is important in the context of restorative justice.

One respondent also suggested that interest free government loans should be provided to victims who have suffered financial loss.

8.12 A voluntary sector organisation suggested the abolition of fines from the justice system to be replaced with victim compensation so that all money retrieved would go towards victim support, which would be administered by a national Victims' Fund. Another voluntary sector organisation referred to the consultation currently being undertaken by the Ministry of Justice on Getting it Right for Victims and Witnesses.

8.13 Of the 7 consultees disagreeing with this proposal, 3 (2 voluntary sector organisations and a local authority) perceived that this proposal is not necessarily appropriate. They cited instances of domestic abuse or assault where the use of compensation could impact detrimentally on the victim or family; or where compensation paid directly by the offender could be repugnant to the victim.

8.14 Two consultees (a local authority and a public body) felt that the current system is sufficient and had concerns about the ability of an offender to pay compensation. The local authority noted that a lump sum paid by the Criminal Injuries Board is a better option. Another voluntary sector organisation queried whether victims would want this to be introduced and noted concerns over implementation and logistics (e.g. economic viability, administration of the scheme, issues over non-payment). Another local authority noted that the offender might not be in a position to pay compensation, although they suggested a revised system where the Crown paid the compensation and then reclaimed this from the offender.

8.15 Comments made by the 12 consultees, mostly organisations, who did not provide a definitive answer to this question, largely echoed points made by other consultees and included:

• Support for a wider definition of compensation as this puts too great a focus on compensation as a form of reparation, to the detriment of other forms of compensation such as rehabilitation;
• Any compensation order introduced will need to be fair, proportionate and determined at the time of sentence; and that financial reparation is more likely to have impact if it is given on a voluntary basis as part of a restorative justice process;
• Concerns over the logistics of this proposal e.g. increased costs related to enforcement and recovery or determining the amount of compensation;
• This does not introduce any real change;
• Level of payment needs to be matched to ability to pay and the offender's circumstances - research data was used to illustrate this;
• Offenders should fully compensate their victims;
• Concerns that this scheme would be used to reduce payments from the CICS;
• Difficulties in quantifying payments;
• CICA compensation thresholds may be higher;

Victim Surcharge

8.16 The key aim of a victim surcharge is to make offenders more accountable for the harm or damage that their actions cause to victims of crime. The SG is proposing to apply a surcharge in cases that result in a court fine, with the potential to roll out surcharge arrangements to custodial sentences, community sentences and direct measures after a bedding in period and possible refinements in the light of that.

8.17 Question 40 asked 'Do you support the principle of adopting a victim surcharge' and those answering no were asked to provide their reasons for this. A total of 49 consultees responded to this question, the majority of which (30) answered 'yes'. Only 7 consultees disagreed with this, and 12 did not provide a definitive answer but did provide commentary.

8.18 Those responding yes were spread across most sub-groups, with the exception of public bodies or legal organisations. Of those responding, 9 were local authorities, 7 voluntary sector organisations, 5 police organisations and 9 were individuals. While not asked to provide further commentary, 12 of these consultees did so; 4 of whom (2 local authorities, a police organisation and an individual) noted that this may be an appropriate way to pay for additional support required by vulnerable witnesses or that this is a constructive step. Another local authority noted that offenders need to appreciate the consequences of their actions and that if there is an identifiable victim, then a victim surcharge should be applied. Two police organisations noted that this would help to lessen the burden on the state and hold the accused directly accountable for their actions.

8.19 An individual suggested this should be a statutory amount set against a series of crimes in the same way that compensation is awarded under health and safety.

8.20 Four consultees (a local authority, a police organisation, a voluntary organisation and an individual) noted logistical concerns over this; specifically, whether offenders would be able to pay this and the practicalities of collecting any fines, penalties, compensation or surcharge. One also asked for further information as to how this would be operated. The voluntary organisation also asked what proportion of the monies raised would be allocated to fund victim services in Scotland and noted a preference for the term 'offender levy' to be used instead of 'victim surcharge'.

8.21 Of the 7 consultees (a public body, a voluntary organisation, a police organisation, a local authority, a legal organisation, an individual and an other organisation), giving a 'no' response, all cited concerns in relation to the enforcement and administration of this proposal. A public body suggested that the income obtained via the existing system of fines (or a percentage of this) should be directed to a victims' fund similar to the Cashback to Communities funding. A police organisation suggested that an independent assessment of the costs of administering such a scheme would need to be undertaken and a voluntary organisation requested further information on the proposal.

8.22 Twelve consultees (4 local authorities, 2 public bodies, 3 voluntary organisations, 2 legal organisations and an individual) while not providing a 'yes' or 'no' response, did provide further comments; most of which related to the logistics and administration of a victim's surcharge and whether or not this would be economically viable; and / or commented that many offenders would not be in a position to make this payment. One voluntary organisation also noted that this should not be intended as an alternative to government funding of services. The legal organisation noted that a victim's surcharge was not needed but that a proportion of revenue raised by court sentencing could be paid into the relevant fund. A voluntary sector organisation noted that any victim surcharge will need to be fair, proportionate and determined at the time of sentence; and that financial reparation is more likely to have impact if it is given on a voluntary basis as part of a restorative justice process. They also went on to note that the level of payment needs to be matched to ability to pay and the offender's circumstances and pointed to research data to back this up.

8.23 Two of the local authorities noted recognition of the importance of providing support for victims' services but had no position as to whether this would be an appropriate mechanism. Two voluntary organisations noted that a victim surcharge should be operated as in England and Wales and apply only to those over 18 years of age. A legal organisation queried how the revenue from this would be distributed, how hardship would be assessed and whether this would be as a consequence of the crime.

8.24 Question 41 then went onto ask 'do you agree that the surcharge should only be applied to court fines in the first instance?' and for those not agreeing, to provide reasons why. Thirty-four consultees responded; with 18 agreeing with the question, 10 disagreeing and 6 providing commentary only.

8.25 Of the 18 providing a yes response (3 police organisations, 7 local authorities, 4 voluntary sector organisations and 4 individuals), 6 also provided additional information. Two local authorities noted that there is an established system for collecting fines and penalties for non-payment and the surcharge should come under the current fine arrangements. A police organisation and an individual commented that a staged or incremental approach would be appropriate. Another local authority noted that the surcharge should only be applied to court fines in the first instance where there is no clearly identifiable victim.

8.26 Of the 10 consultees providing a 'no' response (2 police organisations, 2 voluntary sector organisations, a public body, a local authority and 4 individuals), 7 of them noted that the surcharge should be applied to all people convicted of an offence, and not just court fines.

8.27 A public body did not agree with a victim surcharge but suggested that existing income from fines could be used to support victims. A local authority suggested that the surcharge should assist to provide for immediate need and that this could be administered by the hub. An individual suggested that the victim surcharge should be a statutory amount set against a series of crimes similar to those applied under HSE compensation.

8.28 Of the 6 consultees providing additional commentary (2 local authorities, a voluntary organisation, a public body, a legal organisation and an individual), issues were raised over the logistics of introducing this, for example, collection and enforcement of the surcharge. Two consultees suggested the scheme would need to be piloted in the first instance; and one of these - a voluntary organisation - suggested that the pilot should be carried out with persons sentenced to community sentences. A local authority queried whether such a scheme would be an appropriate mechanism to support victims' services. An individual felt that more detail was needed as to what the scheme would entail and how it would work.

8.29 Question 42 of the consultation paper asked 'should we consider the possibility that legislation could include a provision to roll out application of the surcharge to custodial sentences, community sentences and direct measures at a later date?' and if they did not agree, consultees were asked to provide their reasons. Thirty-eight consultees responded to this, with half (18) agreeing with the question and ten disagreeing. Ten consultees provided commentary but no definitive yes or no response.

8.30 Of the 18 agreeing with this proposal, six chose to provide additional comments; 5 of these (2 police organisations, a voluntary sector organisation, a local authority and an individual) noted that this is a practical approach or simply confirmed their agreement with the proposal. The voluntary sector organisation additionally noted,

"this is important as these are generally the offenders whose actions have the greatest consequences on victims. Failure to do so would be seen as having more affluent offenders sentenced for minor offences pay the compensation on behalf of more serious violent offenders."

8.31 However, another voluntary sector organisation qualified its response and noted that this should take into account the impact that this disposal would have on the rehabilitation of the offender.

8.32 Of the 10 consultees who answered 'no' (5 local authorities, 2 voluntary sector organisations, 2 individuals and an other organisation), 4 noted that this should apply to all people who have committed an offence and that it should be rolled out now rather than waiting for a further roll out. As one voluntary sector organisation noted,

"we believe the surcharge should apply to all people convicted of an offence, including people given a custodial sentence, community sentence or a direct measure. As such, no further roll out should be required."

8.33 Two local authorities noted that many offenders come from lower social and economic groups and rely on welfare benefits and some will have compensation requirements as a requirement or separate part of their sentence. They also referred to recent changes with the introduction of Community Payback disposals where offenders are required to pay back to the community as a whole for their offences. One of these local authorities also suggested that the impact on the offender's family also needs to be considered and that the Court needs to balance the likelihood of the offender complying with all aspects of the sentence with the additional costs which would be incurred in collection and enforcement if an offender fails to comply with the sanctions imposed. Another local authority felt that imposing a surcharge on those reliant on benefits would not support the long term aim of reducing re-offending and that the roll out of any surcharge will only have impact where the offender is in a position to pay this.

8.34 The other organisation suggested that sentencing practice would need to change, for example, in terms of reduced prison sentences or the number of conditions and hours on a community payback order and also queried what evidence there is to suggest that victims want a surcharge to be levied on an offender.

8.35 Of the 10 consultees providing commentary only to this question, 4 (2 local authorities, a legal body and a public body) raised issues in relation to the logistics of imposing this surcharge, for example, how this would be applied or the ease of administering the process. Two consultees (a local authority and an individual) also noted their disagreement with the proposal because of the logistical issues of its application.

8.36 Another local authority noted their agreement that support needs to be provided for victims' services but queried whether this proposal was the appropriate vehicle.

8.37 Two consultees (a public body and an individual) requested further detail on this proposal and how it would work; and this individual had concerns that an offender on minimum welfare benefits could have difficulties in paying any substantial deductions.

8.38 A public body noted their disagreement with the principle of a victim surcharge and suggested that the existing income from fines could be used to support victims.

Use of the revenue raised

8.39 The intention of the SG is that the revenue raised will be used for the benefit of victims; some may be used to fund improvements in information and support for victims, but with the bulk of the revenue being used to alleviate hardship among victims, particularly victims of more serious crime. This would be administered through the third sector and involve a minimum of bureaucracy. Consultees were asked 'do you agree that revenue accumulated from the surcharge should be used primarily to support victims?' and, if they disagreed, to say why. Thirty-six answered this question (question 43). The majority of those (30) responding answered 'yes' (7 voluntary sector organisations, 5 police organisations, 7 local authorities and 11 individuals). Only 3 consultees responded 'no' and these were 2 local authorities and one legal organisation. Additionally, 2 local authorities and a public body provided commentary but no definitive answer.

8.40 Eight of those responding yes to this question provided further detail and reasoning for their response. Two voluntary sector organisations noted their support for this proposal, with one commenting that a national victims' fund should be used to provide direct compensation to victims and the other that venue from the surcharge should go directly to victims rather than via additional agencies, each of which would have overheads to be supported. Another voluntary sector organisation qualified their response by suggesting that the majority of revenue is likely to be raised from motor vehicle offences, and as such, a significant proportion of this revenue should be allocated to provide post-crash services to families and victims of road crashes.

8.41 Even among those agreeing with this suggestions, a small number of concerns were raised and these were:

• A wide range of factors need to be taken into account and there is a need to avoid compensating any victims that have been party to serious criminality that harms society;
• All revenue should be used to support victims;
• The needs of individual victims are likely to differ and this needs to be taken into consideration;
• The funding of restorative justice services would be an appropriate means of utilising revenue raised from the surcharge;
• That a balance needs to be struck between supporting individual victims and victims in general and gave the example of funding restorative justice services.

8.42 A police organisation noted there are resource implications for the Bill but that this will help offset some of the associated costs. An individual made reference to the cost of funding support agencies and commented that 10% of these funds could provide jobs, support and care for victims. They also noted that the use of peer support to help victims could reduce costs by up to 40%.

8.43 Of the 3 who disagreed with this question, a number of concerns were raised and these included:

• The third sector agency would become a social fund provider and need to make decisions about hardship that might not be totally related to the funding;
• The management of the budget;
• Ensuring the system of support is personal centres and responsive and of greater importance than alleviating hardship, and made reference to the DWP social fund and the Social Work (Scotland) Act 1968 and duties under Section 12;
• A dilemma over individuals who are subject to supervision in the community but who are also a witness or victim;
• Consideration needs to be given to dependents of offenders who may experience hardship because of fines, compensation or surcharges imposed;
• The level of the surcharge and whether this is a fixed rate or a proportionate rate, how surcharges would be imposed for individuals with a custodial sentence;
• The administration and bureaucracy involved in the scheme;
• All revenue should be used to support victims.

8.44 Three consultees, all organisations, who provided commentary only noted that:

• They did not hold a position as to whether this was the appropriate approach to be adopted;
• It would be too complicated to impose and too difficult to enforce;
• The allocation of sums from the victim surcharge should not be a matter for the courts which impose the surcharge.

Administration of the surcharge

8.45 The consultation paper noted that ideally the SG would wish to apply a progressive scheme that related the amount of the surcharge to the size of the fine; and the simplest way of doing this would be to deduct a percentage of any fine and retain it as a surcharge. However, a significant proportion of fine revenue in Scotland is remitted to HM Treasury and, as such, this would be difficult to impose. The suggestion is that the surcharge would be applied as a flat rate or variable charge on top of any other penalty. A flat rate would be simpler on an administrative basis although a variable arrangement would allow the system to reflect the seriousness of the offence and the offender's ability to pay the fine. Question 44 asked 'do you think the surcharge should be a flat rate or a variable scheme that reflects the size of a financial penalty?' and asked for comments in support of their answer.

8.46 Thirty-two consultees responded to this question, with the majority (21) having a preference for a variable rate and only 5 preferring a flat rate. Five consultees did not provide a preference but did provide commentary. One consultee supported both options.

8.47 Most of those noting a preference for a variable scheme agreed that it is important for the surcharge to be flexible and relate to the crime committed, the penalty applied and the assets available to the perpetrator. This was noted by 14 consultees; 5 voluntary organisations, 3 police organisations, 4 local authorities and 2 individuals.

8.48 Two organisations (a voluntary organisation and a local authority) cited examples of what other countries impose and these were:

• Finland where traffic fines are based on the severity of the offence and the driver's income and sliding scale financial penalties are imposed for a wide range of offences;
• Canada where there is a variable surcharge based on different categories of crime.

8.49 Three consultees - all individuals - were critical of a flat rate charge; noting that this approach could be inadequate and fail to reflect the gravity of the offence or the offender's ability to pay or that it could be derisory in certain cases. Another individual noted that the rate should be set at between
5-10%.

8.50 Of the 5 consultees (2 local authorities, 2 police organisations and a public body) noting a preference for a flat rate, their reasoning was that:

• A variable rate scheme may negatively impact on individuals on low income and could be to the detriment of their children;
• This could lead to inconsistencies in the way different judges deal with the surcharge;
• A variable rate could initially cause problems;
• It would be easier from an administrative viewpoint to introduce a flat rate surcharge;
• It is not clear how a variable rate would be applied if it is rolled out to other non-financial disposals.

8.51 Of the 5 consultees providing commentary only, 2 (a public body and a local authority) disagreed with the principle of introducing a surcharge. Another local authority queried whether this approach is the most appropriate mechanism to provide support to victims' services and a legal organisation noted that this would be unnecessarily complicated to introduce.

The rate of a flat rate surcharge

8.52 Question 45 then asked consultees supporting a flat rate surcharge 'if you think there should be a flat rate surcharge, what level should it be set at' and were offered the options of £15, £20, £30 or £other and asked to specify what this rate should be. Of the 5 consultees who had stated a preference for a flat rate surcharge, only 3 gave a response to this question. Two of these - both local authorities - opted for a level of £15 and one (a police organisation) suggested a flat rate but on a rising scale depending on the seriousness of the offence.

8.53 Four other consultees who had not stated a preference for either a flat or a variable rate, also provided some comments. A voluntary sector organisation felt that surcharges should cover all convicted offenders and the amount should be based on the seriousness of the crime or the procedure for dealing with the case and noted that Northern Ireland and Canada use similar systems. An individual noted that if this was going to work, it should be set at a nominal amount and suggested a level of £5, although then went on to note that the cost of collecting this might outweigh the sum recovered. Three consultees - a public body, a local authority and a legal organisation reiterated their opposition to the surcharge.

How should a proportionate surcharge work?

8.54 Consultees who had noted a preference for a proportionate surcharge were asked 'if you think there should be a proportionate surcharge, how do you think this should work?' and were given two options: a proportionate amount added to the value of the financial penalty, or other, and asked to specify what this should be (question 46).

8.55 In total, 25 consultees responded to this question, and of those choosing one of these 2 options, views were polarised on whether this should be a percentage amount (mentioned by 7 consultees) or some other amount (mentioned by 9 consultees). Nine consultees did not choose either option but provided commentary instead.

Percentage Amount

8.56 Of the 7 (4 individuals, one local authority, one police organisation and one voluntary sector organisation) opting for a percentage amount added to the value of the financial penalty, one (an individual) suggested a level of 5-10% and another individual noted that this would have to be subject to means testing to ensure the offender could meet the required surcharge.

Other

8.57 Seven of those suggesting the other option noted that the surcharge should be relative to the seriousness of the crime and / or the circumstances of the offender and their ability to pay and / or the impact the crime has had on the victim. One - a voluntary sector organisation - again referred to the system adopted in Finland of a sliding scale of financial penalties depending on the crime committed.

8.58 A voluntary sector organisation noted that the scheme not only has to provide the support needed by victims but that is also needs to cover the costs of administration and asked for further detail to demonstrate the scheme would provide best care for all victims. A local authority suggested that a percentage amount should be taken from the whole fine.

8.59 Two consultees (a police organisation and an individual) noted that flexibility is needed for this to work; the police organisation noted that the amount of the surcharge should be dependent on the crime, the penalty applied and the assets available to the perpetrator. The individual commented that a percentage addition is simple and may be appropriate in most cases but that in some cases a more individual calculation may better reflect the impact of the offence.

8.60 Other suggestions, all from organisations, were:

• A percentage should be taken from the whole fine;
• Percentages taken should be linked to the seriousness of the offence and the perpetrator's ability to pay should not be taken into account;
• A sliding scale of surcharge that is transparent and related to the seriousness of the offence.

8.61 One individual felt that there are difficulties with both options presented at this question; a flat rate impacts negatively on those with a low income, while the drawback for the variable option in Scotland is that the amount of a financial penalty is discretionary and decided upon by the sentencing court, which could lead to differences in surcharge for the same offences.

Should there be maximum and minimum levels set?

8.62 Question 47 in the consultation paper then went on to ask 'if you think there should be a proportionate surcharge, do you think there should be minimum and maximum levels set?' Of the 23 responses, 7 agreed with the proposal, 12 disagreed and 4 provided comments only.

8.63 Of the 7 consultees providing a 'yes' response (3 local authorities, 2 police organisations, one voluntary sector organisation, and one individual), 2 consultees (both police organisations) did not provide any further information. One of the local authorities noted that the amount would be determined in accordance with the crime committed.

8.64 The other 2 local authorities felt that if the surcharge is additional (rather than taken from the whole fine imposed), then the percentage should be fixed at a reasonable level that is likely to be paid. They also felt the sentence may need to take account of other fines and compensations outstanding as well as other financial commitments. They also raised the question as to what the possible sanctions would be if the surcharge were not paid and asked whether the surcharge should be treated as part of the fine for Community Payback or custodial purposes or whether this will be treated as a separate entity with a different sanction for non-compliance.

8.65 An individual commented that if the proposal was to go forward as a proportion of the fine, there should be a maximum set in order to mitigate the impact of judicial variation.

8.66 Seven of the 12 answering 'no' to this question, did not provide any further commentary. Of the 4 who did provide commentary, comments were that:

• Setting a minimum and maximum would reflect the seriousness of the crime and an offender's ability to pay the surcharge;
• The system needs to be flexible and able to adapt to changes in legislation and finances; that imposing a maximum could create future problems if rules needed to be changed;
• That a common sense approach is suitable and if a surcharge is too high, it will be subject to appeal;
• This would need to be subject to means testing to ensure an offender can pay the surcharge.

8.67 Two of those providing commentary only to this question reiterated their disagreement with the surcharge (a public body and a police organisation). Another police organisation suggested that a minimum level needs to be set to ensure that administration costs will be covered and that no maximum penalty should be applied in certain circumstances, providing the example of large fraud. They also noted the surcharge should be dependent on the penalty applied and the assets available to the perpetrator. Finally, in response to this question, a local authority noted that if a surcharge is set within a banding, then it is not proportionate.

What should the maximum and minimum be?

8.68 Question 48 then went onto ask 'if you think there should be a proportionate surcharge, what should a) the minimum be?; and b) the maximum be?' and 12 consultees responded (3 police organisations, 3 voluntary organisations, 3 individuals, a public body, a local authority and a public body). Three of these consultees reiterated their opposition to a victim surcharge.

8.69 Only 3 consultees mentioned a specific amount for either a minimum or maximum figure and these were:

• Minimum of £1, with no maximum to ensure that that crime affecting large numbers of the public or the public interest would attract a high level of surcharge (police organisation);
• Minimum of £25, with no maximum to cover large fraud (police organisation);
• 5-10% of the fine imposed (individual).

8.70 A police organisation felt that any minimum level set needs to cover administration costs involved and that there should be no maximum level set in order to relate the surcharge to the seriousness of the crime. Another voluntary organisation noted that the scheme has to be able to cover administration costs as well as provide support to victims and asked for further information on the scheme to demonstrate that it would be providing best care to victims.

8.71 A voluntary sector organisation again suggested a model should be adopted such as that used in Finland and provided detail on how this system operated.

8.72 An individual noted that any surcharge imposed would have to be subject to means testing to ensure the offender was able to pay; another individual that the maximum needs to be an amount that can be paid by the offender who is likely to be on a low income.

Priority to compensation for the victim?

8.73 Section 250 (1) of the 1995 Act currently provides that where a person receives a fine and a compensation order but has insufficient means to pay both, the compensation order takes priority. The Scottish Government is proposing that priority should be given to any compensation payment to the victim, followed by the surcharge and then the principal fine. Question 49 asked 'do you agreed that priority should be given to any compensation payment to the victim, followed by the surcharge and then the principal fine?' and, if they disagreed, to say how they would prioritise the payments.

8.74 A total of 35 consultees provided a response to this question; the majority (28) agreeing, only one disagreeing and 6 providing commentary only.

8.75 Of the 28 consultees agreeing that priority should be given to compensation payment to the victim, followed by the surcharge and then the principal fine, 3 provided additional comments:

• A voluntary organisation commented that their preferred outcome would be abolition of fines, replaced with compensation payment;
• A police organisation felt that the fine results in the exchequer collecting money via an individual's misfortune and that payment of compensation allows greater opportunity for victims to help in their own recovery, although this can be weakened in instances where compensation is paid in instalments;
• A local authority noted the victim is more important than collecting additional funding for the 'system'.

8.76 One of the individuals who disagreed with the proposal noted that there is an argument for prioritising the surcharge before compensation because of the likelihood of non-payment by the offender. Another individual commented that victims of crime should be entitled to compensation by right and not by application and that the scale of compensation should be relative to the gravity of the crime.

8.77 Of the other comments made, 3 consultees (a public body, a local authority and a legal body) reiterated their opposition to a victim surcharge. A voluntary sector organisation and a public body both referred to the need to cover the administrative costs of the scheme and the additional costs of introducing this into existing IT systems.

Restitution Orders

8.78 The consultation paper noted that police officers form a particular category of victim, as they can be exposed to criminal damage and injury in the course of their duties and as a result of carrying out these duties. As such, there is a specific charge of assaulting a police officer in the execution of his or her duty. The police are also in the unusual position of paying to treat the damage done to themselves. Although they have access to NHS services in the same way as any other individual, they also contribute to the work of the Police Benevolent Fund and also for Treatment Centres that provide convalescent care.

8.79 The Scottish Government is proposing to introduce a mechanism whereby those who carry out assaults on the police, pay to support the specialist non NHS service which treat or assist the victims of these assaults. This would take the form of allowing sentencers enhanced discretion through an additional sentencing option. The sentencer may choose to order an offender convicted of a relevant charge of assault on a police officer to pay a restitution order instead of or in addition to either or both of a compensation order (where appropriate) to the individual, and a fine. The option of imprisonment in addition to all these kinds of financial penalties would also be retained. The sentencer will have discretion, subject to other provisions of the Bill, to decide on the most appropriate disposal(s). Proceeds from restitution orders would go to a fund which would make disbursements to purposes approved by the Government and the Scottish Parliament through the passing of the required legislation. Consultees were asked five questions in relation to these restitution orders.

8.80 Question 50 asked 'Do you agree with the suggestion that there should be restitution orders whereby those who assault police officers may be sentenced to pay into a fund to support treatment and care of police victims?' If they disagreed, they were asked to give their reasons. A total of 40 consultees provided a response to this question; 21 answered 'yes', 12 answered 'no' and 7 provided additional commentary only.

8.81 Of the 7 who answered yes and provided additional commentary, 3 (2 police organisations and one from the voluntary sector) agreed that it is right for a contribution from offenders to support treatment and care of victims who are police. That said, 3 other consultees (a police organisation, a legal organisation and a voluntary sector organisation) commented that this should apply equally to all public servants who are assaulted in the course of their work with the public. The Police organisation commented,

"The principle that an assault on someone whose role is to intervene and help the public is an aggravating factor, has some merit. However, this argument applies equally to police, fire and rescue, ambulance and accident and emergency hospital staff. It is difficult to select individually from this group and indeed there may be arguments for widening it."

8.82 One consultee from the voluntary sector noted that police officers already have good levels of support in place and further noted that the suggestion would be complicated by the common practice of Procurators Fiscal choosing not to proceed with charges under the Police (Scotland) Act 1967 Section 41 in order to obtain guilty pleas to other charges, which would in effect prevent the courts from awarding a restitution order. Another consultee - an individual - noted that at present compensation tends to be awarded to police officers who receive minor injuries where the offender is not imprisoned and that in more serious cases where the accused is imprisoned, imposing a compensation order is not practical. A legal organisation queried what the position would be of for police officers no longer serving at the time of sentencing.

8.83 Of the 12 consultees answering 'no', the most common response was that there should not be a specific fund for police but that all emergency workers should be treated equally (cited by 8 consultees; 4 local authorities, 2 organisations in the voluntary sector and 2 individuals). One of these individuals also commented that there is already a mechanism in place for police compensation; and a voluntary sector organisation called for a central national victim's fund to be put in place.

8.84 Two local authorities also asked whether sanctions for non-payment would be treated in the same way as for a fine and turned into a Community Payback Order as well as noting concerns about the levels of financial payback expected from offenders 'these potentially could include a fine, plus a surcharge, plus compensation, plus restitution, this may well lead offenders to prefer to serve a custodial sentence'. One of these also asked whether it would be possible to introduce a victim's surcharge without introducing a third financial order to Court. A legal organisation noted the need to ensure that financial circumstances and ability to pay are taken into account.

8.85 Four suggestions emerged:

• An accused who assaults a police officer could be given a more punitive sentence to reflect the integrity of the criminal justice system;
• The SG could simply provide more financial support to the Police Benevolent Fund;
• Monies from fines should be paid into the treasury which could then decide to donate more to police funds if they wished;
• If there is to be a victim surcharge, it would be appropriate for assets recovered through POCA to be allocated in this way.

8.86 One organisation noted a concern that this could create an incentive to charge minor breaches of the peace as police assaults, and provided the example of police being shoved while trying to break up a drunken scuffle.

8.87 Of the 7 consultees who provided commentary only, 2 local authorities noted their support in principle but did not feel they were in a position to respond to the details of this proposal; another local authority noted that the police have adequate resources and access to support and back up. A public body disagreed and suggested that such a provision should not only apply to the police and another public body suggested that further discussion would be required in relation to the finer detail of imposition and enforcement.

8.88 A voluntary sector organisation noted that any restitution order introduced will need to be fair, proportionate and determined at the time of sentence; and that financial reparation is more likely to have impact if it is given on a voluntary basis as part of a restorative justice process. Also, that the level of payment needs to be matched to ability to pay and the offender's circumstances and pointed to research data to back this up.

Should the SG set the purposes to be applied?

8.89 Question 51 went onto ask 'do you agree that the Scottish Government should set the purposes to which the fund to support treatment and care of police victims should be applied?' and asked for comments from those who disagreed. Twenty consultees agreed (7 local authorities, 5 police organisations, 2 voluntary organisations and 6 individuals). Only 8 disagreed, 4 of which were in the voluntary sector, one legal organisation, one local authority and 2 individuals. Seven consultees did not provide a definitive response but did provide some commentary.

8.90 Of the 4 agreeing with this question and who provided additional commentary, a local authority noted that the SG should set the purpose; another (Police organisation) that this should be in agreement with the police; another (police organisation) reiterated their view that this should apply to all emergency staff and an individual noted that it is important to consult the victims and survivors of crime about these forms of support.

8.91 Of the 8 disagreeing with this, a voluntary organisation noted that this is unnecessary and cited the Ministry of Justice's current consultation on Getting it Right for Victims and Witnesses which is looking to reform tariffs for criminal injuries. Two voluntary organisations noted that this should be decided by the Scottish Government in conjunction with the Scottish Police Federation and subject to regular review, or decided by an independent panel convened by the Scottish Government and accountable to the Scottish Parliament.

8.92 Four reiterated views expressed at question 50:

• All monies raised from fines should be paid to the treasury;
• It is unnecessary to re-invent a new form of sentence;
• All monies raised should be paid into a central fund and all victims of crime should be treated equally;
• This should apply to all emergency workers and that there is already a mechanism in place for compensation.

8.93 Of the 6 consultees providing only commentary to this question, an individual noted that these should be set in consultation with the relevant bodies; a Police organisation referred to the good work of the Police Benevolent Fund and a public body perceived that the allocation of money from restitution orders should not be a matter for the courts which impose the orders. A local authority noted that the police have adequate resources and access to support and back up. Three consultees simply reiterated points made to question 50.

Limits for restitution orders

8.94 The Scottish Government is proposing to use the same limits for restitution orders as are in place for compensation orders. In summary proceedings the limit on compensation orders is the prescribed sum - currently at a level of £10,000 - in sheriff and stipendiary magistrates' courts, and in JP courts it is Level 4 on the standard scale - currently £2,500. Question 52 asked consultees, 'do you think limits for the size of as restitution order should be as described in paragraph 145 (the same limits as exist for compensation orders)?' and for reasons from those who disagreed.

8.95 Twenty-eight consultees responded to this question, with the largest number (19) agreeing compared to only 4 who disagreed. Five consultees reiterated points made at earlier questions and provided commentary but no definitive response. While most of those (15) who agreed, did not provide any additional commentary, 2 local authorities noted that the limits are appropriate providing the means and debts of the individual are taken into account when setting the amount of the restitution order. One reiterated the need to extend this to all emergency staff.

8.96 Of the 4 who disagreed with this proposal, 2 (a local authority and a voluntary organisation) noted the need for access to an equal system for all victims of crime, one of whom also referred to the need for a central national fund (voluntary organisation). A legal organisation reiterated that it was unnecessary to reinvent a new form of sentence.

8.97 Other points reiterated were:

• Disagreement with the principle of a surcharge in any form and the need to apply this to all persons assaulted in the course of their work;
• Opposition to restitution orders but if they are introduced, all monies raised from fines should be paid to the treasury;
• Support for the principle of the restitution orders;
• Need to have regular reviews of the set limits;
• Reference to the Ministry of Justice's current consultation.

Priorities in collection and enforcement

8.98 Currently when a person is sentenced to both a compensation order and a fine but cannot afford to pay both, priority is given to the compensation order. The consultation paper proposed that collection and enforcement of a restitution order would take priority after a compensation order but before a fine. Question 53 asked consultees, 'do you agree that priority in collection and enforcement should be given to any compensation payment to the victim, followed by the restitution order and then any fine?' If consultees did not agree, they were asked to say how they would prioritise the payments.

8.99 Thirty-five consultees chose to respond to this question and the majority (26) agreed with the proposal. One of these - a police organisation - reiterated that this should apply to all police, fire and rescue, ambulance and accident and emergency hospital staff. A local authority noted that the sanctions that may be applied are relevant as Community Payback and Custody also come with a cost and referred to a need for a balance between financial and other recompense from offenders who have limited means. An individual noted that fines should be paid to the victims.

8.100 Three of those who disagreed with this question provided additional commentary. This included a local authority which noted compensation payments to any victim should take priority to the collection and enforcement of fines and all victims of crime should be entitled to receive compensation payments. A voluntary sector organisation reiterated their view that all victims of crime should be treated equally and any money obtained from offenders should be paid into a central national fund. Another legal organisation reiterated that it is unnecessary to introduce this.

8.101 Of the 6 consultees who did not provide a definitive answer but who did provide commentary at this question, a local authority noted that they did not agree with this overly complicated way of collecting money. A public body noted that there would be logistical issues in relation to setting up such a system. A public body noted they would agree to the priority of payments as envisaged here if these orders became available to a court.

8.102 Three reiterated points made earlier:

• Disagreement with the principle of a surcharge in any form and the need to apply this to all persons assaulted in the course of their work;
• Support for the principle of the restitution orders;
• Reference to the Ministry of Justice's current consultation.

Extending restitution orders?

8.103 The consultation paper noted that emergency workers, other than the police, can also be subject to assault. The final question in the consultation paper asked 'do you think restitution orders should be extended to groups other than the police?' and, if so, were asked to suggest which group(s) of workers should also benefit from a fund supported by restitution orders.

8.104 Thirty-eight consultees responded to this question, and the majority (29) agreed. Only 4 (a local authority, a voluntary organisation, an individual and a legal body) disagreed with this proposal; the legal body again reiterated their view that a new form of sentence does not need to be introduced.

8.105 The groups of workers that consultees considered should also benefit from a fund supported by restitution orders were:

• All groups of worker covered by the Emergency Workers Act - 13 mentions (5 local authorities, 3 police, 2 individuals, one voluntary sector, a legal organisation and a public body);
• Victims of crime as a result of service to the public / any public servant within the jurisdiction of the Scottish Government - 5 mentions (2 local authorities, a police organisation, a voluntary, an individual);
• Local authority staff e.g. environmental officers, members of multi-agency partnerships - 3 mentions (2 local authority, an individual);
• Health workers / social work staff - 3 mentions (all local authority);
• Fire and rescue staff - 3 mentions (a local authority, a voluntary sector, an individual);
• Ambulance service staff - 3 mentions (a local authority, a voluntary sector, an individual);
• Parking attendants / medical staff - 2 mentions (2 individuals);
• Victim support organisations - 2 mentions (2 individuals);
• Those working with offenders in the criminal justice service - 2 mentions (a local authority, an individual);
• Nursing / medical staff - 1 mention (individual);
• Those working in A&E departments - 1 mention (local authority);
• Emergency health workers dealing with offenders with mental health / addiction problems - 1 mention (local authority);
• Families of homicide victims - 1 mention (voluntary organisation); this consultee referred to the ongoing needs of these victims and that the current compensation system does not meet the needs of these victims;
• Any person assaulted in the course of their employment - 1 mention (local authority).

8.106 One local authority agreed that restitution orders should be extended to other groups of workers but suggested that it might be best to implement them for the police in the first instance and have an option to extend this to other groups at a later date. A police organisation noted that the money paid into charities and facilities to support recovery of injured police officers and enable them to return to work means that a high proportion of money for restitution meets its intended aims and is not lost in administration costs. A local authority also reiterated concerns over sanctions for non-payment and whether it would be treated in a similar way as a fine and turned into a Community Payback Order, as well as concerns over the levels of financial payback that would be expected from some offenders. A public body noted they had no objection to this order being extended to other emergency works if it is introduced.

8.107 Three consultees again reiterated points made earlier:

• Reference to the Ministry of Justice's current consultation;
• Opposition to restitution orders but if they are introduced, all monies raised from fines should be paid to the treasury;
• The introduction of restitution orders could lead to a proportion increase in the costs associated with accounting and enforcement.