Surcharge

When sentencing for offences committed on or after 1 October 2012 a magistrates’ court must order the surcharge in the following ways (Criminal Justice Act 2003, s.161A; CJA 2003 (Surcharge) Order 2012; CJA 2003 (Surcharge) (Amendment) Order 2016, CJA 2003 (Surcharge) (Amendment) Order 2019 and CJA 2003 (Surcharge) (Amendment) Order 2020). This is a mandatory requirement set out in section 42 of the Sentencing Code. Courts can reduce the amount of the surcharge (if necessary to nil) if – and only if – an offender cannot pay both the surcharge and one or more of the following orders:

• compensation order,
• unlawful profit order,
• slavery and trafficking reparation order.

If a defendant can afford to make payment in addition to one or more of those orders, the court must impose a surcharge, rather than another financial order such as costs.

Offenders aged 18 and older at the date of the offence

Offenders aged under 18 at the date of the offence

* When sentencing an offender to immediate custody for a single offence committed before 1 September 2014 or more than one offence, at least one of which was committed before 1 September 2014, no surcharge is payable.

Person who is not an individual (for example, a company or other legal person)

Where an offender is dealt with in different ways only one surcharge (whichever attracts the higher sum) will be paid. Where there is more than one fine ordered, then the surcharge is assessed with reference to the total fine. Where a custodial sentence is imposed the surcharge is based upon the aggregate term imposed.

Where the court dealing with an offender for more than one offence and at least one offence was committed when the offender was under 18, the surcharge should be ordered at the rate for under 18s (Criminal Justice Act 2003 (Surcharge) Order 2012 art.5(3)).

There is no surcharge payable when compensation is ordered as a sentence (as opposed to an ancillary order).

The surcharge is not payable where the court is dealing with breach of a community order or breach of a suspended sentence or breach of a conditional discharge.

However, where the court deals with an offender for an offence and at the same time deals with one or more of the following:

• breach of a community order (whether by re-sentencing for the original offence or imposing a fine or more onerous requirements),
• breach of a suspended sentence (whether by activating the sentence in full or part or imposing a fine or amending the order), or
• re-sentence following breach of a conditional discharge (but not when simply allowing a conditional discharge to continue)

The surcharge for the new offence must be calculated by reference to the date that the earliest offence (including any offence for which the sentence has been breached) was committed. Where the offender has the means to pay the financial impositions of the court, there should be no reduction in compensation or fines whenever the surcharge is ordered. However, when the court:

• orders the offender to pay both a surcharge and compensation, but the offender is unable to pay both, the court must reduce the amount of the surcharge (if necessary to nil) (Sentencing Code, s.42(3)); or
• orders the offender to pay both a fine and a surcharge, the court may only reduce the fine to the extent that the offender is unable to pay both (Sentencing Code, s.125(4)).

Where the offender does not have sufficient means to pay the total financial penalty considered appropriate by the court, the order of priority is:

• compensation
• surcharge
• fine
• costs.

When sentencing for one or more offences any one of which was committed after 1 April 2007 but before 1 October 2012, a surcharge is payable only if the offender is dealt with by way of a fine, at a flat rate of £15 (Criminal Justice Act 2003 (Surcharge) Order 2012 art.7(2)).