THE case of a severely disabled child sex offender who escaped a jail term because of "misleading" information sent to a judge, has had his case referred to the Attorney General.

Wheelchair-bound Richard Fitzpatrick, 48, had been due to appear at Burnley Crown Court yesterday for review of sentence after it had been revealed he could have been sent to prison after all.

Judge Raymond Bennett had earlier given Fitzpatrick a three-year probation order after he had received what he yesterday described as "misleading" information from Preston Prison telling him the defendant could not be "humanely accommodated."

The judge, who said he had understood that it applied to any prison, had then told Fitzpatrick he was only making the probation order because circumstances forced it and that he could have faced up to eight years in prison.

Fitzpatrick did not attend for yesterday's hearing, which was told there were facilities to deal with him in three prisons in the area.

The judge said referring the case to the Attorney General was the most suitable way and it probably gave the appearance of being the fairest.

The papers in the case have already been sent to the Attorney General by the Crown Prosecution Service in Burnley, the court heard. The defendant's barrister Anthony Cross said yesterday he had been in ignorance of any proposed review of sentence and he read a direct quote in the Lancashire Evening Telegraph from the CPS at Burnley, saying it was looking into the possibility of appealing but had not received any correspondence on the matter.

He said it was a complicated area of law as to whether a probation order could be increased to a more severe sentence and authorities were divided as to whether the judge had that power.

Mr Cross said a telephone call had been received from a doctor at Strangeways Prison, Manchester, who had wanted to make arrangement for Fitzpatrick's admission yesterday and the impression might be gained that events were occurring in secret that should only be consideration in a public court. He said he did not object to the review of sentence but the manner it had been dealt with.

Judge Bennett told the court it had seemed quite wrong not to reconsider the case in the light of the information from the prison services but added he was certainly not prepared to up the sentence without the defendant being present.

Fitzpatrick, who lives in Nelson, had earlier admitted seven counts of indecent assault on a schoolgirl some years ago.

Mr Cross then told the court that the defendant himself thought he ought to go to prison.