Imagine a judge looking you dead in the eye and
saying, we have enough evidence to prosecute
you for this crime, but we've decided we aren't
going to. Which, you know, sounds great at first.
Right. You might feel this massive wave of relief,
right? You'd think you're totally off the hook.
But you're really, really not. Exactly. Because
then the judge says, however, you are not innocent.
We aren't clearing your name. This charge is
just going to hover over you indefinitely. Oh,
and by the way, we might still use it to seize
your money years from now. Yeah, it's a scenario
that sounds completely absurd. It's like a glitch
in the matrix of the justice system, but it actually
happens. It totally does. And welcome to today's
Deep Dive, where we are exploring this bizarre,
highly consequential legal limbo. It's hidden
right inside the criminal law of England and
Wales. It's this administrative maneuver called
letting a charge lie on file. Or sometimes they
just say a charge on file. And let me tell you,
it is going to challenge every single assumption
you have about how justice is actually supposed
to work. Oh, absolutely. Because, I mean, we
are all raised on this very binary concept of
the law, right? Right. The whole guilty or not
guilty thing. Exactly. You go to court, a jury
hears the evidence, and you're either guilty
or you're not. But a charge lying on file, it
completely shatters that binary. So to help us
navigate this whole mess, we are pulling from
a really fascinating stack of legal materials
today. We've got the foundational definitions
from Wikipedia and the law pages, which kind
of map out the strict procedural rules of how
this practice actually works. Yeah. And we're
also digging deep into some critical analysis
by the legal commentator David Winch, specifically
his work, Accounting Evidence, which really the
financial and, well, the ethical consequences
of this whole legal shortcut. And shortcut is
probably the most accurate word you could use
for it. Though, as we'll see, shortcuts in the
legal system often come with some pretty heavy
hidden tolls. Okay, so let's unpack the actual
mechanics of this first. Because before we get
to the outrage and the financial stuff, we really
need to understand what this looks like physically
in a courtroom. Right, like how does a charge
end up just, you know, sitting in a drawer somewhere?
Exactly. Walk us through it. Well... For a charge
to officially lie on file, two very specific,
very distinct hurdles have to be cleared by the
presiding judge. Okay, what's the first one?
The first hurdle is all about the actual weight
of the accusation. So the judge has to look at
the prosecution's case and officially agree that
there is enough evidence for a case to be made.
So just to be clear for everyone listening, the
judge is acting as a filter here. Yeah, exactly.
They're looking at the police reports, the witness
statements, the forensics, and saying, yes, the
prosecution actually has the receipts. Like,
if we put this in front of a jury, it's a completely
viable case. Right. And that's important because
it prevents prosecutors from just putting completely
baseless, frivolous charges on file just to intimidate
someone. Oh, that makes sense. So they can't
just make stuff up. Exactly. The evidentiary
threshold has to be met, and the judge actually
has to acknowledge it on the record. But it's
the second hurdle where things get a bit messy.
Right, because if they have the evidence, my
immediate thought is run the trial. I mean, that
is literally what the system is built for. You
would assume so, yeah. But the second hurdle...
requires the judge to decide that it is not in
the public interest for the prosecution to actually
proceed with that trial. OK, and this is where
I need to stop you. Because that phrase, not
in the public interest, it sounds so incredibly
noble. It does, yeah. It sounds like they are
protecting society from something. But when you
dig into the legal texts, what does public interest
actually mean in this specific context? Well,
in the vast majority of these cases, public interest
is basically just polite legal phrasing for triage
and budget management. Wow, really? Yeah. The
sources show that a charge usually lies on file
because the defendant has already admitted to
or been convicted of other charges. And crucially,
those other charges are almost always much more
serious. OK, I want to make sure we lock this
concept in for you listening. So let's build
a scenario. OK, let's hear it. Let's say a guy
is arrested for a massive multi -million pound
bank heist. He was literally caught red -handed
inside the vault. Got it. But on the way to the
bank he also stole a bicycle just to get down
the street faster. A very pragmatic Criminal,
I guess. Right. So he's facing, say, 20 years
in prison for the armed bank robbery. And the
prosecution also has him on camera stealing the
bicycle. So they have the evidence that clears
the first hurdle. Exactly. But the judge looks
at the docket and says, look, we are already
sending this guy away for two decades for the
bank heist. Are we really going to spend another
three days of court time, impanel a whole new
jury and spend thousands of pounds of taxpayer
money to officially convict him of stealing a
200 pound bicycle. And the answer from the court
is predictably no. Right. I mean, the practical
utility of securing that minor conviction is
zero. The system has already achieved the necessary
level of punishment and public protection with
the bank robbery conviction. So the bicycle theft
charge is just allowed to lie on file. Exactly.
They basically just take the file and put it
in a drawer. But here is the massive caveat that
makes this entire practice so bizarre to me.
What is the defendant's actual official status
regarding that bicycle theft. Yeah, this is the
part that really breaks people's brains. The
defendant makes absolutely no admission to the
charge lying on file. They do not plead guilty.
And the court doesn't declare them guilty either.
I know. There is absolutely no verdict recorded
against them. That is wild. You're just completely
suspended in this gray area. You aren't officially
guilty, but because the trial was bypassed, you
were never given the opportunity to prove yourself
innocent either. You just exist in this state
of perpetual legal purgatory. That's a great
way to put it, yeah. So if the state is bypassing
the trial just to save time and money, I have
to assume this isn't just a permanent get out
of jail free card. Like if they put the file
in a drawer, there must be a way to open that
drawer again later, right? A drawer can absolutely
be open. A charge lying on file is not dismissed.
It's not erased. It remains active just in a
dormant state. And it can be reinstated and brought
to trial at a later date. I mean, put yourself
in that position for a second. The psychological
weight of that is staggering. It really is. You
have a judge who has gone on the official record
saying, there is enough evidence to convict you
of this. And instead of letting you fight it
and clear your name, they just suspend it over
your head indefinitely. It's an incredible amount
of leverage for the state to hold over a citizen.
which is exactly why there are strict procedural
safeguards in place. It's not just a free -for
-all. So a random prosecutor who happens to be
having a bad day can't just, like, walk into
the archives, pull your file out of the drawer,
and drag you back to court because they feel
like it? No, they cannot. The procedural hurdle
here is actually quite high. To reinstate a charge
that has been lying on file, the prosecution
must get the explicit official permission of
either the original trial judge or the court
of appeal. Okay, so they have to go back to the
judiciary and essentially ask for the keys to
the drawer. Exactly. They have to prove that
circumstances have changed so dramatically that
it is now suddenly in the public interest to
spend the money and time to prosecute this old
charge. OK, that's a pretty fundamental check
and balance. It is. It keeps the ultimate power
to revive the case entirely in the hands of the
judges, not the police or the prosecutors. So
it prevents the state from using these dormant
charges as a constant arbitrary threat to harass
people. I mean, that does make me feel slightly
better. There is a heavy institutional lock on
that door. Yeah, definitely. But as we transition
to the second half of our deep dive here, we
are about to discover that while the criminal
trial might be locked behind a heavy door, there
is a back door. Oh, very lucrative back door.
Yes. And it is a back door that the state can
use to walk right into your bank account. We're
basically moving from the theoretical philosophy
of the law into the very tangible, very aggressive
world of asset confiscation. And this is where
we really have to introduce a massive piece of
legislation. It's called the Proceeds of Crime
Act 2002. Alright. Because when you read the
documentation, it explicitly states that charges
laid on file have, on occasion, been taken into
account in actions under this act to confiscate
the gains of criminal activity. And this is the
exact mechanism that legal scholars and civil
liberties advocates absolutely tear their hair
out over. I am right there with them because
let's just trace the logic we just built. We
establish unequivocally that there is no admission
of guilt for a charge on file. There is no jury.
There is no verdict. The defendant is not legally
guilty of the crime. So how on earth is the state
legally allowed to seize their money or their
property for a crime they haven't been convicted
of? To understand how the state pulls this off,
we have to look at how different branches of
the legal system measure the truth. And it all
comes down to the burden of proof. OK, break
that down for us. What's the difference in the
burden of proof here? Well, in a criminal trial,
you know, where your liberty is at stake, where
you might actually go to prison, the burden of
proof is incredibly high. Right. The prosecution
has to prove you committed the crime beyond a
reasonable doubt. Let's call that like 99 percent
certainty. If the jury has a reasonable doubt,
you go free. Right. That is the main firewall
of the justice system. It's designed to be hard
to breach. Exactly. But the Proceeds of Crime
Act. often operates in the realm of civil recovery.
They aren't trying to put you in prison. They're
just trying to take your stuff. Okay. And in
civil proceedings, the burden of proof is much,
much lower. It's based on the balance of probabilities.
Meaning they just have to prove it's 51 % likely
that you did it. It is just more likely than
not. Precisely. Now, think of a charge lying
on file like a dormant computer virus. The criminal
trial with its beyond reasonable doubt standard
is the main firewall. OK, I follow you. The prosecution
didn't want to spend the time and money trying
to hack through that main firewall for a lesser
charge. So they put the charge on file. They
just left the virus dormant on the hard drive.
Exactly. But remember the first hurdle the judge
had to clear to put it on file in the first place.
Right. The judge had to officially declare that
there was enough evidence for a case to be made.
Yes. And that judicial declaration acts as the
back door. Years later, the state can initiate
a civil recovery action under the Proceeds of
Crime Act to take your assets. And to meet that
lower 51 % balance of probability standard, they
simply point to the judge's original note. Oh,
wow. That is wow. Yeah. They say to the civil
court, look. We didn't officially convict him
of stealing the bicycle because we were busy
with the bank heist, but a criminal judge already
looked at the evidence and said it was strong
enough to go to trial. Therefore, it is more
than 51 % likely he stole the bicycle. So, we
are taking the bicycle. Or, you know, more accurately,
taking the money in your bank account that they
claim came from selling the bicycle. That's insane!
They bypassed the criminal jury trial entirely,
but they still reap the financial rewards of
a conviction. Which brings us directly to the
core conflict of this deep dive and the incredibly
sharp critique leveled by legal commentator David
Winch in his work, Accounting Evidence. Right.
Winch's argument is laser focused on the ethical
black hole that this practice creates. He argues
that using charges laid on file to confiscate
gains under the Proceeds of Crime Act is a direct,
undeniable breach of the presumption of innocence.
And if you grew up in any Western democracy,
I mean, the presumption of innocence isn't just
a rule. It is the absolute bedrock of the entire
system. Innocent until proven guilty, not innocent
until a judge says there's probably enough evidence,
but we don't feel like proving it. Exactly. Winch
is pointing out that when the state confiscates
your property based on a charge with no verdict,
they're effectively treating you as a guilty
person. They're enacting a punishment based entirely
on an accusation and a preliminary assessment
of evidence. They're completely stripping you
of your right to defend yourself. You don't get
to cross -examine the witnesses. Your defense
attorney doesn't get to poke holes in the forensics.
No, not that. You are just financially penalized
by administrative decree. It is a really devastating
critique, but To really understand why this practice
survives, we have to look at the collision between
Winch's civil liberties perspective and the harsh
realities of the state. We have to look at the
friction between innocence and efficiency. Let
me pay devil's advocate for the state here for
a second. Sure, go for it. Because if I put on
my prosecutor's hat, I can understand why they
fight to keep this mechanism alive. Let's go
back to our bank robber. But let's say it wasn't
a bicycle he stole. Let's say he was running
a massive multi -million pound money laundering
syndicate. OK, a slight escalation from a bicycle.
Just a bit, yeah. So the police finally catch
him, but they actually catch him on massive tax
fraud. The tax fraud case is incredibly strong.
It's a slam dunk that will put him away for 20
years. Right. Now, the money laundering case
is also strong. The judge agrees there is enough
evidence, but it would take six months in court
and millions of pounds to litigate. So they just
put the money laundering charge on file. A classic
application of judicial efficiency. Makes sense.
Right. But here's the state's problem. The guy
has five million pounds sitting in an offshore
account that they absolutely know came from the
money laundering. Okay, I see where you're going
with this. If the state cannot use the Proceeds
of Crime Act to seize that money based on the
charge on file, what happens? The guy sits in
jail for his tax fraud, serves his time, and
then walks out 20 years later to a five million
pound retirement fund built entirely on illicit
money. And from the state's perspective, and
arguably the public's perspective too, that is
a massive systemic failure. Exactly. I mean,
the state's imperative is to ensure that crime
literally does not pay. They view the Proceeds
of Crime Act as a vital necessary weapon to dismantle
the financial infrastructure of criminality.
Right. If they couldn't leverage charges on file,
organized criminals might retain their illicit
wealth purely because of court scheduling conflicts
and the sheer cost of running a trial. The state
is essentially saying, look, just because we
were too busy prosecuting your other crimes to
give you a trial for this one, that doesn't give
you a free pass to keep the dirty money. But
David Winch and the civil liberties advocates,
they look at that exact same scenario and they
draw a hard line. They say you are assuming the
money is dirty without proving it in a criminal
court. Because having enough evidence to make
a case is vastly different from having enough
evidence to win a case beyond a reasonable doubt
in front of a jury. Yes. I mean, juries acquit
people with enough evidence all the time. That's
literally why we have trials. Exactly. Winch's
position is that if the state wants the five
million pounds, they need to do the hard work.
They need to spend the money, impanel the jury,
run the trial, and actually prove the money laundering
beyond a reasonable doubt. You cannot take shortcuts
when it comes to fundamental human rights, even
if the shortcut is really, really efficient.
So it's a profound philosophical stalemate, really.
It is. It's the state's desperate need to defund
criminal enterprises colliding head on with a
citizen's absolute right to not be punished until
formally proven guilty. And the charge lying
on file is basically the battleground where these
two ideas rip each other apart. It completely
exposes the raw seams in the justice system.
It shows us that the law is not always about
pure justice. It is often about resource management,
pragmatic compromises and just the quiet shifting
of goalposts. Yeah. That's exactly right. So
let's bring all of this together. We've journeyed
through some incredibly complex legal architecture
today. We really have. In the criminal courts
of England and Wales, allowing a charge to lie
on a file is this fascinating, deeply paradoxical
administrative tool. It relies entirely on a
judge confirming the presence of evidence combined
with the deliberate systemic absence of a verdict.
It's a mechanism born out of necessity, really.
Courts are overwhelmed. When severe crimes are
already resulting in lengthy sentences, the system
triages its resources by putting lesser charges
in a dormant state rather than spending public
funds on redundant trials. But as we've seen
through the lens of the Proceeds of Crime Act
2002 and David Winch's razor -sharp critique,
that dormant file doesn't just collect dust.
No, it doesn't. By acting as a bridge to lower
burdens of proof in civil courts, this shortcut
creates a massive gray area. It allows a state
to reach into your bank account and confiscate
your assets based on a crime they explicitly
chose not to prove you committed. And for you
listening, the ultimate takeaway here is to look
closely at the invisible compromises that govern
our lives. Massive systems like the legal system,
the healthcare system, the financial sector,
they all make compromises every single day in
the name of efficiency and the public interest.
But we have to remain vigilant and constantly
ask ourselves, How do those administrative shortcuts
quietly erode the foundational principles we
assume are protecting us? That is the exact friction
we are left with. The gap between the noble ideal
of justice and the messy, budgeted reality of
actually administering it. Right. Which leaves
us with a final thought. I want you to mull over
today, long after this deep dive is over. We
started this conversation by talking about how
we expect the law to be like a broken arm on
an x -ray. A clean, jagged white line. Broken
or not broken? Guilty or innocent? But when a
charge lies on file, you weren't looking at a
clean break. You're just looking at a murky,
undefined shadow on the film. And the terrifying
part isn't the shadow itself. It's the realization
that the state can still decide to amputate your
livelihood, even when they actively refuse to
give you an official diagnosis.