Regulations have been laid before the Scottish Parliament which will have a significant impact on those sentenced for breaches of health and safety law.

Once approved by MSPs, the Regulations will impose an additional layer of penalty on those sentenced to pay a court fine, known as the Victim Surcharge Fund.

In theory, the Fund will see offenders contributing to the cost of supporting victims of their crimes in addition to being penalised by the court for their acts/omissions.

In cases of 'ordinary' crime the concept is easy to follow: qualifying victims of burglary, for example, could apply to the Fund for a payment to cover the cost of new windows and locks.

The Regulations, however, are extremely broad and cover any offence for which a fine is imposed. In effect, therefore, their reach extends well beyond what may be considered as 'ordinary' crime into the realms of the more specialised offences such as health and safety breaches.

The money collected will be banked in the Victim Surcharge Fund and administered by the Scottish Ministers. The penalty will apply to all crimes committed on or after 25 November 2019.

How much will it cost?

Amount of fine Surcharge payable

Up to and including £200 £10

Between £200.01 to £500 inclusive £20

Between £500.01 to £1,000 inclusive £40

Between £1,000.01 to £2,500 inclusive £75

Between £2,500.01 to £5,000 inclusive £175

Between £5,000.01 to £10,000 £350

In excess of £10,000 7.5% of the fine

Let's put that in to perspective. The application of the Victim Surcharge Fund, had it applied at the time of some of the most high profile health and safety sentencing cases in Scotland, would have seen an additional £90,000 being paid by one power company following a fatal accident - 7.5% of the fine - and an additional £45,000 being paid by a construction firm in a separate, fatal case.

It should also be noted that the Scottish Regulations will set the level of additional penalty significantly higher than is currently imposed in England and Wales.

Who gets the money?

The Regulations allow a "relevant person" to make a written application to the Fund for a payment which can either be accepted, rejected or made subject to certain conditions by the Ministers. A "relevant person" is defined as "...a person who provides or secures the provision of support services for persons who are or appear to be victims of crime."

Most likely, applications will come from victim support groups who are rarely, if ever, involved in health and safety cases. The question then arises: if the victims in a health and safety case are unlikely to meet the qualifying criteria to benefit from the Fund, should those convicted still be required to make the additional payment?

What's next?

The Regulations require the Scottish Ministers to publish further guidance about the operation of the Fund by 25 May 2020. Will the Ministers choose to define categories of offence which will attract the surcharge? Will businesses be required to contribute potentially significant sums to a Fund which may not be of any direct benefit to those impacted by their offences? We will watch with interest.

Interesting questions will also arise in relation to the civil claims arising from the incidents for which the business is prosecuted.

Given the continued trend of increasing health and safety fines, this additional surcharge is something which employers, in particular, need to bear in mind when making financial provision for court fines - remembering that these fines are not covered by insurance.


Victoria Anderson

Senior Associate