Victim Surcharge - Equality statement
Updated 1 June 2022
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Introduction
1) This document records the analysis undertaken by the Ministry of Justice (MoJ) in relation to the policy proposal to increase the Surcharge (“often referred to as the Victim Surcharge”). The analysis is undertaken to enable Ministers to fulfil the requirement placed on them by the Public Sector Equality Duty (PSED), as set out in section 149 of the Equality Act 2010. The PSED requires a Minister to have due regard to the need to:
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eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct under the Equality Act 2010;
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advance equality of opportunity between different groups of persons who share a protected characteristic and those who do not; and
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foster good relations between different groups of persons who share a relevant protected characteristic and those who do not.
2) The protected characteristics are race, sex, disability, sexual orientation, religion or belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity.
3) This Equality Statement (ES) considers the impact of the policy on offenders who will be ordered to pay increased amounts of the Surcharge and victims who will benefit from funding to support victims and witnesses of crime.
4) Through the Victims Bill consultation, we specifically asked respondents for their views on how our overall proposals (which included the increase to the Surcharge) would have an impact on individuals with protected characteristics.
5) From the 156 direct responses to the equalities question (which covered the entirety of the proposal in the Victims Bill Consultation), over half (56%) fully agreed that the consultation correctly identified the range and extent of the impacts on those with protected characteristics in the ES. The remaining 44% felt that there were some impacts that had not been identified either due to proposals not adequately addressing equalities issues, or because the consultation process, the survey, was not considered to be fully inclusive.
6) We explore these themes here, and in the accompanying consultation response, which includes more detail on consultation responses.
7) Please note that this ES builds upon the ES prepared in 2014, 2016, 2019 and 2020 accompanying previous changes to the Surcharge.
Summary of proposals
8) The Surcharge is a charge imposed on offenders by the court with the purpose of ensuring that offenders hold some responsibility towards the cost of supporting victims and witnesses.
9) The Surcharge was introduced in April 2007 and applied solely to fines at a flat rate of £15. Since then, the Surcharge has been applied to the majority of criminal sentences, with the amount payable by an offender reflecting the severity of the sentence.
10) The proposals include two elements for change. Firstly, to increase all Surcharge rates by 20% rounded to the nearest pound. This builds upon the 5% increase completed in 2020, and therefore fulfils the pre-election commitment to increase the Surcharge by 25% by 2024/25 ahead of schedule. This also ensures that offenders continue to make a proportionate contribution to supporting victims and witnesses of crime.
11) Secondly, the proposals change how the Surcharge is imposed alongside a fine. Currently, this is the only Surcharge rate that has a minimum and maximum cap, with a percentage amount in between. This proposal removes the minimum collar (currently £34), increases the percentage amount (from 10% to 40%), and increases the maximum cap (from £190 to £2,000).
Table 1 Current Surcharge rates, as specified in the 2020 Order
| Sentence | Adults (18+) | Youth (under 18 at time of offence) | Organisations |
|---|---|---|---|
| Conditional discharge | £22 | £17 | £22 |
| Fine | 10% of fine value, min £34 max £190 | £22 | 10% of fine value, min £34 max £190 |
| Community Order | £95 | £22 | |
| Suspended sentence of imprisonment (6 months or less) | £128 | ||
| Suspended sentence of imprisonment (over 6 months) | £156 | ||
| Immediate custodial sentence (6 months or less) | £128 | £34 | |
| Immediate custodial sentence (more than 6 months – up to and including 2 years) | £156 | £34 | |
| Immediate custodial sentence (over 2 years or custody for life) | £190 | £34 | |
| Youth rehabilitation order or referral order | £22 |
Table 2 Proposed Surcharge rates
| Sentence | Adults (18+) | Youth (under 18 at time of offence) | Organisations |
|---|---|---|---|
| Conditional discharge | £26 | £20 | £26 |
| Fine | 40% of fine, max £2,000 | £26 | 40% of fine, max £2,000 |
| Community Order | £114 | £26 | |
| Suspended sentence of imprisonment (6 months or less) | £154 | ||
| Suspended sentence of imprisonment (over 6 months) | £187 | ||
| Immediate custodial sentence (6 months or less) | £154 | £41 | |
| Immediate custodial sentence (more than 6 months – up to and including 2 years) | £187 | £41 | |
| Immediate custodial sentence (over 2 years or custody for life) | £228 | £41 | |
| Youth rehabilitation order or referral order | £26 |
12) The income raised from the Surcharge is used to fund support for victims and witnesses. The impact of the Surcharge proposals on victims will therefore be resultant of the increased safeguarding of funding available to them through this income.
Evidence and Analysis
Equality Impacts on Offenders
13) We have used the Criminal Justice Statistics Outcomes tool to assess the distribution of protected characteristics among offenders sentenced, the majority of whom will receive an order to pay the Surcharge (Table A1 to A3 within Annex A). The latest data available covers the calendar year 2020.
14) We have used data published within the Universal Credit statistics to assess the financial impact of increased Surcharge rates on those with protected characteristic (Tables A4 and A5). There is no recent data available specifically on offenders on low income therefore we have used ‘persons on universal credit’ as a proxy to reflect the likelihood of the offender population being on a low income. When claiming Universal Credit, claimants are asked to complete a set of diversity questions via the equality survey. However, as the questions are optional, not all claimants complete these questions. In the most recent Universal Credit statistics, responses for ethnicity are below the accepted threshold for reliability of data. Therefore, to assess the financial impact of the increased Surcharge rates by ethnicity, we have used data collected as part of the Family Resource Survey (FRS) (Table A6). As the data collected via the FRS varies from year to year on ethnicity, the Department for Work and Pensions (DWP) takes three years of data and calculates the average for that period. This is to ensure that there are enough survey respondents to be able to make reliable generalisations.
15) We have also used data from the latest publication of the Households Below Average Income National Statistics covering 2019/20 to assess the financial impact on households with at least one member with a disability (Table A7).
Age
16) Table A1 shows that overall (in 2020) individuals aged 21 to 49 are overrepresented in the Criminal Justice System compared with the general population. This suggests that increasing the Surcharge may have a greater impact on offenders within this age group compared with offenders within the other age groups (aged under 21 and 49+). This differs slightly by sentence type as for example, those aged 15 to 17 are overrepresented amongst those sentenced to a community sentence compared with the general population. Within the age group of 21 to 49, there is also likely to be variation in terms of impact of the increased Surcharge dependent on sentence type. For example, among those sentenced to a fine, those aged 30-39 specifically are likely to be most impacted by the increased Surcharge rates.
17) Table A4 shows that (as of January 2022) the majority (66%) of individuals claiming Universal Credit are aged 20 to 44. This data suggests that offenders aged 20 to 44 may be more likely to be on low income and therefore increasing the Surcharge may cause more financial hardship for offenders within this group. It is important to note that individuals in full-time education and those 65+ cannot typically claim Universal Credit but could also be on low income and receive support in other ways, for example through a student loan or a State Pension.
Disability
18) Table A7 shows that (in 2019/20) the percentage of working-age adults in families with at least one member with a disability in absolute low income (before housing costs) was 19%. This compares with 10% of working-age adults in families with no members with a disability. This data suggests that increasing the Surcharge may place a greater financial burden on offenders with a disability and offenders in households with at least one family member with a disability.
Ethnicity
19) Table A2 shows that (in 2020) offenders of Black ethnicity and offenders of Mixed ethnicities are overrepresented in the Criminal Justice System compared with the general population. 10% of all persons sentenced are of Black ethnicity and 4% are of Mixed ethnicity, however these groups account for only 4% and 2% of the general population, respectively. Table A2 also demonstrates that this overrepresentation is more prominent for certain sentencing types, for example 13% of all offenders sentenced to a fine were of Black ethnicity, although this group accounts for only 4% of the general population.
20) Table A6 also shows that (from 2017/18 to 2019/20), on average, families of Black and Mixed ethnicities were more likely to receive any income-related benefits than families of Asian, White or Other ethnicities. This suggests that increasing the Surcharge may cause more financial hardship for offenders of Black and Mixed ethnicities than offenders of other ethnicities.
Gender
21) Table A3 shows that (in 2020) a higher proportion of males (77%) than females (23%) were sentenced in the Criminal Justice System compared with the general population (males 49%; females 51%). As a result, an increase to the Surcharge may have a greater impact on males than females.
22) Table A3 shows that (as of January 2022) a slightly higher proportion of females (55%) are claiming Universal Credit than males (45%). Taken together, this data therefore suggests that while overall less females than males may be affected by the increase to the Surcharge as they are less likely to be offenders, individual female offenders are more likely to be impacted by the increase as they are more likely to be on a low income.
PSED Aims
23) We have considered the above in light of the Public Sector Equality Act 2010. Further considerations are listed below.
Direct discrimination
24) The Surcharge levels currently in force differentiate on the basis of age, as the Surcharge amounts differ depending on whether the offender is under 18 or not. The proposals here would be applied to all Surcharge levels equally, and so would continue the existing differential treatment. However, we consider differential treatment to be objectively justifiable in this circumstance. Under the Equality Act, differential treatment on the basis of age does not constitute direct discrimination if it can be shown it is a proportionate means of achieving a legitimate aim. We consider that to be the case here, as the Surcharge levels for offenders under the age of 18 have been set taking into account the principles of the youth justice system and the generally reduced means of young offenders.
25) No other differential treatment has been identified based on the other protected characteristics for offenders as the Surcharge increase proposals apply equally to offenders, irrespective of which protected characteristics they have. Furthermore, the proposals aim to strengthen funding for victim support services and so benefit all victims, regardless of any protected characteristic.
Indirect discrimination
26) Indirect discrimination occurs when a policy applies equally to all individuals but puts those sharing a particular characteristic at a disadvantage when compared to those without that characteristic unless the policy is a proportionate means of achieving a legitimate aim.
27) Using data from a variety of sources (see Annex A) our analysis highlights that males, individuals aged 21 to 49, and those of Black and Mixed ethnicities are overrepresented in the Criminal Justice System and therefore more likely to be impacted by the Surcharge increase. It is important to note however that this is likely to vary slightly by sentence type as demonstrated in Tables A1 to A3.
28). We also identified that the increased Surcharge may have a differential impact in relation to a person’s ability to pay the higher Surcharge amount. Our analysis highlights that individuals aged 20 to 44, those of Black and Mixed ethnicities, females, and those residing in families with at least one person with a disability are more likely to experience financial hardship than those without these protected characteristics.
29) However, we also know from the Crime Survey for England and Wales, that some of the groups outlined above are more likely to be victims of crime. For example, in the year ending March 2020, respondents of a Mixed (25.9%) or Black ethnicity (20.5%) were more likely to state that they had been a victim of crime[footnote 1]. Furthermore, in the year ending March 2020, disabled women were more than twice as likely to have experienced domestic abuse (14.7%) than non-disabled women (6%)[footnote 2]. Therefore, individuals with these protected characteristics are also more likely to benefit from the increased secured funding for victim support.
30) We consider that any differential effects arising from the increased Surcharge rates are justified as a proportionate means of meeting a legitimate aim. That is, making sure offenders who commit a crime contribute a proportionate amount towards the costs of supporting victims of crime. Any differential effects are further mitigated by the proportionality of the Surcharge rate to the nature of the offending. Furthermore, differential effects in terms of financial affordability will be mitigated by the offender being means tested when being sentenced and a fine level being set, as well as existing policies which allow offenders to make affordable payments by instalments. If an offender is unable to pay both victim compensation and the Surcharge, the victim compensation will be prioritised and the Surcharge rate reduced (if necessary, to nil).
Discrimination arising from disability and duty to make reasonable adjustments
31) We consider that the increased Surcharge proposals are not directly discriminatory within the meaning of the Equality Act as they do not treat people less favourably because of their protected characteristics.
32) A mental health condition is considered a disability if it has long-term effect on your normal day-to-day activity. This is defined under the Equality Act. When an order is made under the Mental Health Act 1983 in respect of the person, they do not pay the Surcharge and are therefore out of scope.
33) It would not be reasonable to make an adjustment for disabled victims of crime so that they are out of scope for the proposals. However, we recognise that it remains important that we continue to make reasonable adjustments for disabled victims of crime and offenders to ensure appropriate support is given.
34) As outlined in the ‘Disability’ section of this ES, we identified that increasing the Surcharge may have a differential impact in relation to a person’s ability to pay the increased Surcharge rates. We identified that offenders who live with at least one family member with a disability may be more likely to experience financial hardship than offenders without these protected characteristics. It is therefore likely that the increase to the Surcharge may place a greater financial burden on offenders with a disability and offenders living in households where there is at least one family member with a disability.
35) Regarding victims, we know that those with a disability are more likely to be a victim of a crime[footnote 3] and therefore may benefit more as a result of the increase to the Surcharge as this will increase secure funding for support for victims.
36) We consider that any differential effects arising from the increased Surcharge rates are justified as a proportionate means of meeting a legitimate aim. Please see the above section ‘Indirect discrimination’ for further information on ways we will mitigate differential effects.
Harassment and victimisation
37) We do not consider that the proposed changes will give rise to harassment or victimisation within the meaning of the Equality Act.
Advancing equality of opportunity
38) We have considered how the increase to the Surcharge will advance the equality of opportunity between people who share a protected characteristic and those who do not.
39) In respect of victims, we know from the Crime Survey for England and Wales, that individuals who are male, single, disabled, aged 16-24 and 25-34, Black or Black British, those who have no religion, and those who are bisexual or ‘other’ sexual orientation are overrepresented compared to the general population[footnote 4]. We believe that the increase to the Surcharge will minimise the disadvantages suffered by those individuals who are more likely to be a victim of crime, on the basis that the income generated from the Surcharge is used to fund support for victims.
40) We believe that the Surcharge increases will advance equality of opportunity for victims.
41) We do not believe the Surcharge increases will advance equality of opportunity for offenders.
Fostering good relations
42) One of the objectives of PSED is to foster good relations between people who share a certain protected characteristic and those who do not. This involves having due regard to the need to tackle prejudice and promote understanding. We believe that the proposed changes promote understanding among offenders of the impact of their crime on victims and in their responsibility in supporting the victim(s) to cope and build resilience to return to daily life.
Data limitations
43) While efforts have been made to source information related to these areas covered by the consultation, there are still gaps in our evidence base. We do not, for example, have information on gender reassignment, sexual orientation, pregnancy and maternity, and religion and belief, so have been unable to analyse the potential impacts on individuals who have these particular protected characteristics.
Annex A
Table A1: Persons sentenced in magistrates’ courts and the Crown Court by age and sentence type, 2020
England and Wales
| Sentence Type[1] | Conditional Discharge | Fine | Community Order | Suspended Sentence | Immediate Custody | Other[2] | All Persons Sentenced[3] | Total General Population[4] |
|---|---|---|---|---|---|---|---|---|
| Age Bands | ||||||||
| Total | 100% | 100% | 100% | 100% | 100% | 100% | 100% | 100% |
| 10-11 | 0% | 0% | 0% | 0% | 0% | 0% | 0% | 3% |
| 12-14 | 1% | 0% | 2% | 0% | 0% | 0% | 0% | 4% |
| 15-17 | 5% | 0% | 12% | 0% | 1% | 4% | 1% | 4% |
| 18-20 | 9% | 5% | 7% | 8% | 6% | 7% | 5% | 4% |
| 21-24 | 11% | 10% | 10% | 13% | 12% | 11% | 11% | 6% |
| 25-29 | 15% | 16% | 15% | 17% | 19% | 16% | 16% | 8% |
| 30-39 | 29% | 31% | 28% | 32% | 35% | 31% | 31% | 15% |
| 40-49 | 18% | 20% | 16% | 18% | 18% | 19% | 19% | 14% |
| 50-59 | 9% | 12% | 7% | 9% | 7% | 8% | 11% | 15% |
| 60-69 | 3% | 4% | 2% | 3% | 2% | 3% | 3% | 12% |
| 70+ | 1% | 1% | 0% | 1% | 0% | 1% | 1% | 16% |
Notes
- Data are given on a principal disposal basis - i.e. reporting the most severe sentence for the principal offence.
- Other includes restriction orders, hospital orders, guardianship orders, police cells, and other disposals.
- All persons sentenced excludes those sentenced with absolute discharge and those sentenced with compensation as their primary disposal as these offenders are not subject to the Victim Surcharge.
- General population distribution has been calculated using ONS mid-year population estimates for England and Wales.
- % of known age only.
Sources
ONS Population estimates England and Wales: mid-2020
Data on ethnicity is not available in the most recent mid-year population estimates, therefore Table 2 sets out the ethnicity data published within the mid-year population estimates for 2019.
Table A2: Persons sentenced in magistrates’ and the Crown Court by sentence type and ethnicity, 2020
England and Wales
| Sentence Type[1] | Conditional Discharge | Fine | Community Order | Suspended Sentence | Immediate Custody | Other[2] | Total Sentenced[3] | General Population[4] |
|---|---|---|---|---|---|---|---|---|
| Ethnicity | ||||||||
| Total | 100% | 100% | 100% | 100% | 100% | 100% | 100% | 100% |
| White | 79% | 73% | 80% | 81% | 79% | 78% | 79% | 85% |
| Black | 11% | 13% | 10% | 8% | 10% | 11% | 10% | 4% |
| Asian | 6% | 8% | 5% | 6% | 6% | 5% | 6% | 7% |
| Mixed | 4% | 4% | 4% | 3% | 4% | 3% | 4% | 2% |
| Chinese/Other | 1% | 2% | 1% | 2% | 2% | 2% | 2% | 2% |
Notes
- Data are given on a principal disposal basis - i.e reporting the most severe sentence for the principal offence.
- Other includes restriction orders, hospital orders, guardianship orders, police cells, and other disposals.
- Total Sentenced excludes those sentenced with absolute discharge and those sentenced with compensation as their primary disposal as these offenders are not subject to the Victim Surcharge.
- General population distribution has been calculated using ONS mid-year population estimates for England and Wales.
- This table is only representative of those sentenced for indictable offences only. Summary offences do not have reliable information for ethnicity.
- % of known ethnicity only. Of those who received sentenced types listed in Table A2 and sentenced for indictable offences only (156,192), 26% have no ethnicity recorded.
Sources
Experimental Statistics: Population estimates by ethnic group, England and Wales: 2019
Table A3: Persons sentenced in magistrates’ and the Crown Court by sentence type and sex, 2020
England and Wales
| Sentence Type | Conditional Discharge | Fine | Community Order | Suspended Sentence | Immediate Custody | Other[1] | Total Sentenced[2] | General Population[3] |
|---|---|---|---|---|---|---|---|---|
| Sex | ||||||||
| Total | 100% | 100% | 100% | 100% | 100% | 100% | 100% | 100% |
| Male | 75% | 74% | 84% | 87% | 93% | 83% | 77% | 49% |
| Female | 25% | 26% | 16% | 13% | 7% | 17% | 23% | 51% |
Notes
- Other includes restriction orders, hospital orders, guardianship orders, police cells, and other disposals.
- Total Sentenced excludes those sentenced with absolute discharge and those sentenced with compensation as their primary disposal as these offenders are not subject to the Victim Surcharge.
- General population distribution has been calculated using ONS mid-year population estimates for England and Wales.
- % of known sex only.
Sources
ONS Population estimates England and Wales: mid-2020
Table A4: People on Universal Credit by age, as of January 2022
UK
| Age bands | No. of people | % of people |
|---|---|---|
| Total | 5,563,334 | 100% |
| 16-19 | 145,326 | 3% |
| 20-24 | 623,970 | 11% |
| 25-29 | 767,166 | 14% |
| 30-34 | 873,751 | 16% |
| 35-39 | 783,145 | 14% |
| 40-44 | 637,187 | 11% |
| 45-49 | 505,445 | 9% |
| 50-54 | 458,709 | 8% |
| 55-59 | 382,420 | 7% |
| 60-65 | 355,037 | 6% |
| Over 65 | 31,149 | 1% |
| Unknown | 29 | - |
Notes
- % of known age only.
Source
Universal Credit statistics, 29 April 2013 to 13 January 2022
Table A5: People on Universal Credit by sex, as of January 2022
UK
| Sex | No. of people | % of people |
|---|---|---|
| Total | 5,563,334 | 100% |
| Male | 2,489,934 | 45% |
| Female | 3,073,364 | 55% |
| Missing/Unknown | 34 | - |
Notes
- % of known sex only.
Source
Universal Credit statistics, 29 April 2013 to 13 January 2022
Table A6: Percentage of families that receive any income-related benefit by ethnicity, 2017/18 to 2019/20
UK
| Ethnicity | Any income-related benefit (%) |
|---|---|
| Total | 16% |
| White | 16% |
| Black | 23% |
| Asian | 14% |
| Mixed | 20% |
| Other | 19% |
Source
Family Resource Survey: financial year 2019 to 2020
Table A7: Estimated Percentage of working-age adults in absolute low income by disability
UK
| Absolute low income | ||||
|---|---|---|---|---|
| Working-age adults in families where: | ||||
| no-one is disabled | someone is disabled | |||
| 2019/20 | 10% | 19% |
Source
Households below average income: for financial years ending 1995 to 2020
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Crime in England and Wales - Office for National Statistics (ons.gov.uk) ↩
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Domestic abuse victim characteristics, England and Wales - Office for National Statistics (ons.gov.uk) ↩
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Crime in England and Wales - Office for National Statistics (ons.gov.uk) ↩
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Crime in England and Wales - Office for National Statistics (ons.gov.uk) ↩