Plea bargaining issues resurface

THE ROW between two leading criminal silks has resurfaced 20 months after Roger Levitt's fraud trial ended in uproar over his lenient sentence. Media attention has been focused on the allegations made by prosecution counsel David Cocks QC and Jonathan Goldberg QC, who led the defence, about each other.

In November 1993, after the trial had started and following a deal, Roger Levitt pleaded guilty to one count of misleading Fimbra. The remaining charges were not pursued. The judge sentenced him to 180 hours of community service.

The defence team allege that accounts given by Cocks, the SFO and the Attorney General about how the final plea deal was arrived at are misleading.

On 9 December 1993 the Attorney General answered questions as to when the SFO first posed a plea bargain on reduced charges saying “no such suggestion…was made by or on behalf of the Serious Fraud Office. The offer by Roger Levitt to plead guilty to fraudulent trading…was first made on 22 November 1993 by his leading counsel to leading counsel for the Crown.”

But the defence team says prosecution lawyers had already made approaches, specifically on 2 and 9 November 1993, to Levitt's lawyers suggesting that they would accept pleas on the Fimbra offence and to a count on the personal investor section of indictment. This offer was only slightly less generous than the one eventually settled for.

The Attorney General also said: “The Serious Fraud Office was not aware that the judge would impose a non-custodial sentence.”

Cocks himself said in a television broadcast in March 1994: “When I realised that Levitt would get 180 hours of community service I was astonished. It's quite untrue to say that the SFO or I or any counsel prosecuting knew what the result was going to be when we accepted the plea. We didn't know, it was up to the judge.”

However, it appears from the defence sources including court transcripts, letters and notes of counsel, that the prosecution knew that Levitt would only plead guilty to the count about Fimbra provided that he had a firm indication from the judge that any sentence would be non-custodial.

Last week SFO director George Staple was questioned over the sentence by the Treasury and Civil Service Select Committee. He said: “Mr Cocks certainly had no authority from us to encourage a deal, as counsel for the Crown he had authority to discuss matters in a general way but he did not have specific authority from me or the SFO to enter into these discussions on specific matters.”

Labour is to ask Sir Nicholas Lyell next week to explain what occurred.

This is not the only row over the trial. At the time Cocks complained to the Bar Council about Goldberg. He alleged that Goldberg's opening speech misled the jury by referring to matters ruled out in preliminary hearings. Goldberg denies this strongly: “I shall have a great deal to say at the appropriate time. All I can say for now is that I defended a difficult case in the best traditions of the Bar.”

Cocks is also understood to maintain that as the judge would not order a retrial, this pushed the prosecution team into a corner and the only way out was to accept a plea deal suggested by the defence.

Defence sources dismissed this and insisted that the prosecution canvassed a plea deal specifically on 2 and 9 November, well before Goldberg's speech at the start of the trial on 11 November. Further, one of the counsel for the defendants has alleged in a letter, which can be submitted to the Bar Council in Goldberg's defence, that in his view Cocks' complaint together with his surprise at the non-custodial sentence given to Levitt was “designed to cover his [Cocks'] own lack of preparation or enthusiasm for the trial”.

Cocks has refused to comment but is understood to strongly refute these attacks.

Whether any of the allegations are regarded as proven by the Bar Council may never be known. After more than 20 months, there is every chance that the complaint may be disposed of with a standard “no further action”.