Restitution Orders - Summary for Criminal Justice Social Work

Restitution Orders – Summary for Criminal Justice Social Work

The Victims and Witnesses (Scotland) Act 2014 introduced various measures to improve the support and information available to victims and witnesses of crime. This included provisions to introduce a new financial penalty of a restitution order to be available to the courts for those convicted of assault on police or police staff (under section 90(1) of the Police and Fire Reform (Scotland) Act 2012.) The recent SSIs that have been passed by the Scottish Parliament enabled restitution orders to come into force from 10 February 2021.

This new financial penalty of a restitution order is available to the courts for those convicted of assault on police or police staff.  Specifically in relation to assault on persons as mentioned in section 90(1) of 2012 Act (“victims”). This includes those acting in the capacity of a constable, member of police staff, member of other relevant police force acting in Scotland, member of joint investigation team, or other persons who were assisting those noted above whilst acting in that capacity. Police officers and custody officers are those most likely to be victims of assault under section 90(1).

A restitution order cannot be imposed for any other offence. A restitution order cannot be imposed for the offence of resisting, obstructing or hindering a person acting in a capacity of constable etc.

The money that is received from restitution orders will be paid into the Restitution Fund, which will then be used to provide support services for victims of section 90(1) assault.  The Fund will be used to support both physical and mental health and wellbeing. Those who are eligible will be able to apply to the fund and request support.

It should be noted that, the monies paid in respect of a restitution order imposed on an offender are not for the sole benefit of the victim of the individual offence, they will be paid into the restitution fund for the benefit of all victims of this offence in general.

The policy aim is that those who are convicted of the section 90(1) offence, will make a contribution towards support services for victims of this offence in general. In addition, there is an intention to give a clear message that assault on police officers and staff is unacceptable. Please see the relevant policy note https://www.legislation.gov.uk/ssi/2021/58/policy-note/contents

Courts have the option of imposing a restitution order, which can be used instead of, or in addition to the other sentences they have available.

The victim surcharge which is payable in relation to a fine, is not payable in relation to a restitution order.

Courts will have discretion on the size of restitution orders. The maximum sum that can be imposed for a restitution order is currently fixed at £10,000. On the basis of information in relation to the use of fines for the same offence, it is likely that the average sum will be significantly lower than this - on average we anticipate it could be around £350.

The imposition and collection of restitution orders will follow the same processes that are already used for fines, and the same safeguards around ability to pay, rights of appeal etc (for example, it can be deducted from benefits). A conviction or sentence (such as the level of the financial penalty) can be appealed with the court.

Restitution orders will be collected, like fines, by the Scottish Courts and Tribunals Service (SCTS) and similarly enforced. This is underpinned by the Enforcement of Fines (Relevant Penalty) (Scotland) Order 2020, which specifies that restitution orders are a “relevant penalty” for the purposes of the fine enforcement rules. 

The Judicial Institute prepared a Brief Note for judges on restitution orders to be published on the Judicial Hub ahead of implementation.

Marie Swinney

Police Workforce Team Leader

Police Division

Scottish Government

22 February 2021