SECOND GROUP OF PARTS U.K. Provisions applying to sentencing courts generally

PART 3 E+W Procedure

CHAPTER 3 E+W Surcharge

42 Court's duty to order payment of surcharge E+W

(1) A court when dealing with an offender for one or more offences committed on or after 1 April 2007 must also order the offender to pay a surcharge.

This is subject to subsections (2) to (4).

(2) Subsection (1)—

(a) does not apply in such cases as may be prescribed by regulations made by the Secretary of State, and

(b) is subject to section 15 of the Proceeds of Crime Act 2002 (effect on duty in subsection (1) when proceedings on confiscation order are postponed).

(3) Where a court dealing with an offender considers—

(a) that it would be appropriate to make one or more of—

(i) a compensation order,

(ii) an unlawful profit order, and

(iii) a slavery and trafficking reparation order, but

(b) that the offender has insufficient means to pay both the surcharge and appropriate amounts under such of those orders as it would be appropriate to make,

the court must reduce the surcharge accordingly (if necessary to nil).

But see section 13(4) of the Proceeds of Crime Act 2002 (court not to take confiscation order into account.)

(4) Where an offender aged under 18 is convicted of an offence and, but for this subsection, a court would order the offender to pay a surcharge—

(a) section 380 (orders for payment by parent or guardian) applies to the surcharge, and

(b) for the purposes of any order under that section in respect of the surcharge, subsection (3)(b) of this section is to be read as if the reference to the offender's means were to the means of the offender's parent or guardian.

(5) For the purposes of this section a court does not “deal with” a person if it—

(a) discharges the person absolutely, or

(b) makes an order under the Mental Health Act 1983 in respect of the person.

(6) In this section—

• “slavery and trafficking reparation order” means an order under section 8 of the Modern Slavery Act 2015;

• “unlawful profit order” means an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013.

(7) Regulations under subsection (2) are subject to the negative resolution procedure.

Modifications etc. (not altering text)

C1 S. 42(1) excluded by S.I. 2012/1696, art. 2 (as amended (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 405 (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2)

Commencement Information

I1 S. 42 in force at 1.12.2020 by S.I. 2020/1236, reg. 2