These unconnected cases were tried, in separate Crown Court proceedings, on a form of indictment which had been uploaded electronically by the prosecution onto the Crown Court Digital Case System ("the DCS"). In both cases the applicant was put in charge of the jury, which returned a verdict of guilty on counts contained in that form of indictment. It was only after conviction (but before sentence) that a court official realised that the form of indictment used at trial differed from the indictment on which the applicant had been arraigned, in particular, by adding one or more counts on which the jury had returned a guilty verdict but in respect of which the applicant had not entered a plea.
There is no doubt that, in both these cases, the proper course would have been for the indictment to have been amended (and any new counts formally 'sent' to the Crown Court if they could not otherwise be joined on the basis of evidence previously served) and for the accused to have been re-arraigned. There is also no doubt that if any of the procedural errors had resulted in unfairness to the appellants or otherwise called into question the safety of their convictions, this court would intervene.
Indeed, as this case demonstrates, the modern practice of uploading draft indictments onto the DCS, intended to be convenient for all parties and to improve efficiency, is capable of leading to confusion and serious error if care is not taken to ensure that appropriate steps are taken to apply for orders to amend existing indictments and/or to ensure re-arraignment. The risk of multiple versions and uncertainty as to which is the "true bill" is obvious. We emphasise that it is the duty of both prosecution and defence representatives to ensure that steps are taken to regularise the position as the case progresses and, in particular, that the form of indictment used at trial has received all necessary consideration. In that regard, it would also obviously be good practice for trial judges to enquire of counsel whether there were any outstanding issues in relation to the indictment before it is read before the jury at trial: whether that should be incorporated into a rule is a matter for the Criminal Procedure Rule Committee. However, if, notwithstanding, such obligations and practices, a trial proceeds on the basis of a form of indictment which was not properly dealt with, the primary consideration (as recognised in Malachi Lloyd Williams (above)) will be the fairness of the trial and the safety of the conviction, not the technical validity of the indictment.