Practice and Procedure


PUBLISHED February 18, 2003

Where a defendant made admissions of offences to a probation officer those admissions could be relied on by the prosecution. Although those situations would be unusual, the court could provide sufficient protection to the defendant to prevent unfairness.Appeal against conviction with leave of the single judge. On 30 October 2000 at Manchester Crown Court before HH Judge Adrian Smith, the defendant ('H'), on an agreed basis, pleaded guilty to indecent assault as an alternative to rape. Sentence was adjourned for reports. In November 2000 H was seen by probation officers, on four separate occasions, in order to prepare pre-sentence reports. At the first meeting H gave details of the indecent assaults, which had all been on one woman. At the second meeting H made what probation officers regarded as a confession, of raping the complainant on a number of occasions whilst she had been drunk. H was warned that what he had said would appear in the report. H repeated the confession a number of times at the other meetings. When the matter returned for sentencing the judge decided that he would sentence H on the basis of the agreed plea. However, because of the contents of the report a psychiatric report would be necessary. The admission made was relevant to the question of what risk H posed to the public and relevant in deciding what the appropriate sentence should be. For various reasons there were a number of adjournments. During that period the prosecution took the decision to proceed with the counts of rape on the basis of what H said to the probation officers. That was the only evidence the prosecution could rely on as when H had been charged he made no admissions at interview and relied on a pre-prepared statement. At the rape trial, before HH Judge Geake, an application was made to exclude the evidence of the probation officers under s.78 Police and Criminal Evidence Act 1984 on the basis that H should be entitled to the same protection as if the interviews had been carried out by the police. It was a point of public policy, that if admissions made to probation officers were admissible then whether defendants should be advised not to see probation officers unless a solicitor was present, the interviews were taped and the defendant was cautioned. The judge dismissed the application. He recognised the public policy issues but held that each case must be decided on its own facts and in the present case the material should not be excluded. During trial there was distinct differences between the probation officers' and H's recollection of what was said. H was convicted and on 30 May 2002 the judge imposed an extended sentence, under s.85 Powers of Criminal Courts (Sentencing) Act 2000, of six years imprisonment with an extension period of licence of three years. H appealed sentence on the ground that the judge should have excluded the evidence of the probation officers.HELD: (1) The circumstances of the case were unusual. Other situations had been considered by the court, for example in R v McDonald 1991 CLR 122 where the report, which contained an admission, was prepared by a doctor. In that case it was held that the question of whether or not to exclude the admission, under s.78 of the 1984 Act, was a matter for the trial judge's discretion. There were clear analogies between that and the present case. (2) A probation officer was under a duty to prepare a report that clearly and frankly set out his view, particularly in relation to sex offences and the risk the defendant constituted. In order to do that they had to ask questions of the defendant about the precise circumstances of the offence committed. If the defendant volunteered an admission of committing a particular offence or some other offence relevant to the task of the probation officer it could not be ignored. (3) Usually there would be little danger of any untoward action in relation to anything said to a probation officer. However, situations, such as the present one, could arise. There could be no question of evidence being automatically excluded. The matter had to be considered to ascertain whether there was a basis for excluding it under s.78 of the 1984 Act (see R v Stokes 2001 (unreported)). (4) It was clearly important that there should be a frankness in exchanges between a probation officer and a defendant which furthered the role of the sentencing exercise. If the prosecution regularly relied on what was said in those exchanges there would be adverse effects and eventually the probation officer would be unable to do his job. (5) As a result the message should be that the prosecution should carefully consider whether it would be right to rely on evidence of what was said between a defendant and probation officer. Considerations of public interest should also be taken into account. If the prosecution decided to rely on that evidence then the court had a discretion, under s.78 of the 1984 Act, to ensure no unfairness occurred. (6) It was perfectly appropriate for the court to take into account the protection afforded a defendant in a police interview. The court should bear in mind that when interviewed by probation officers there was no caution and no legal representation. (7) Probation officers should ensure no unfairness was caused to a defendant. If a defendant started confessing he should be stopped and asked if he wanted to see his solicitor before he continued. The court was not laying down any guidelines as to what a probation officer should do. They had to make decisions on the appropriate course to take. (8) In the present case once H had disclosed the fact that he had committed rape the court could not ignore it. It had not been wrong to prosecute and the judge could not be criticised for his decision.Appeal dismissed