Helen Johnson interview with The Law Society.
Helen Johnson interview: ‘Good people will leave the profession’
We speak to this year’s winner of the Solicitor Advocate of the Year Award, Helen Johnson, about the challenges facing solicitor advocates today, and her predictions for the year ahead.
What have been your professional highlights this year?
I was very busy last year doing some high profile cases which took me away from the office. It was on this basis that I won the Excellence Award, I suppose. I represented a teenager charged with planning a terrorist attack on a school or mosque, who was cleared of terrorism charges in the Old Bailey.
I also defended the youngest defendant in a house fire case in which a woman and her three children died; there were eight defendants. Two were convicted of murder. The defendant I represented and the other five defendants were acquitted of murder, but convicted of the lesser offence of manslaughter.
This year, it was good to come back to Leicester – it’s my local court and I have enjoyed the familiarity. A highlight in terms of the court work I undertook was defending a very vulnerable young man with autism and learning difficulties who was charged with conspiracy to commit GBH. As the complainant’s family had been sitting in the public gallery, my client was extremely anxious and nervous, so in order for him to give evidence, I asked the judge if he would agree to clear the public gallery. The judge agreed. This and other adaptations made during the trial meant my client was able to actively participate in the trial. He was ultimately acquitted.
I have also been appointed leading junior in two cases this year. One was a fraud case at Southwark Crown Court – the prosecution offered no evidence on day three of the trial, but there was still a lot to do, including a legal argument about whether the charges should lie on file. The other is a child cruelty case linked to a manslaughter, as the child died. The trial was due to start in January, but the prosecution indicated they will not be processing against my client. Even so, there has been a lot of work done to prepare the case. In both cases, I was working with two different members of the Bar who acted as my junior. We worked really well together.
What do you think are the biggest challenges facing advocates at the moment?
As of this October, all cases allocated and sent to a number of crown courts, including Leicester, are to have only one pre-trial hearing. The Plea and Trial Preparation Hearing (PTPH) is listed 28 days after the case appears at the magistrates court. The court expects there to be an effective hearing identifying the issues and witnesses required. In many cases, this will happen without all of the papers having been served.
The new Plea and Trial Preparation Hearing will put pressure on advocates to make decisions and pressure upon defendants to make decisions at a point where many will not feel they are able to.
There is little discretion about adjourning the date of the PTPH, and many advocates have concerns about the rigidity of the framework and the fact that not all cases or defendants will be ready to make difficult decisions at this early stage and without sight of all of the evidence. Advocates representing vulnerable clients or those with mental health issues will have to obtain material which will not be available within the tight timescales imposed by the scheme. Whatever our view, it is plain that very soon all courts will be subject to the new regime.
I think essentially it means that a lot of pressure will be brought to bear on advocates to make decisions and put pressure upon defendants to make decisions at a point where many will not feel they are able to. The aim of PTPH is for pleas to be entered more quickly and cases resolved to conclusion in one hearing, if possible. In some cases, this is advantageous, but not always. It is likely that advocates are going to be in conflict with the judiciary over this, and on occasions may have to stand up to judges who are under their own pressure to comply with the scheme. This can be difficult for some advocates. It can be particularly difficult for advocates who regularly appear before the same judges again and again. You may not want to have a row with a judge who you know you will be back before later that same morning or the next day, when you will be trying to persuade them of the merits of your application.
There are advantages, however, in knowing your judge and being known. If they know and trust you to make proper applications only when appropriate and necessary, they may be more inclined to some flexibility. It will be interesting to see how much of a problem this presents and how the advocates and the judges deal with it.
On top of PTPH, the CPS and the courts are moving to a digital system which is being piloted with a view to it being rolled out. The Crown Court Digital Case System means that the prosecution will serve everything digitally and the judges, prosecution and defence will all have the same material before them. As a pilot there are some things that still need ironing out: for example, if you serve your defence statement, it must be done digitally, but you also have to email the court and CPS to tell them you have uploaded it, because the system won’t alert them to it. We have been told that judges will not accept paper documents and everything will have to be uploaded.
I cannot see how there is a conflict between representing someone at court who you also represent within the firm; if there is a conflict, you shouldn’t be representing them as a firm.
So, in addition to the usual legal challenges, advocates and solicitors will be facing many changes to their working practices in the months ahead.
What are your thoughts on the MoJ’s recent consultation on criminal advocacy?
I feel strongly that it’s an attack on solicitor advocates, and a sop to the Bar, who are very unhappy with the number of solicitor advocates undertaking criminal advocacy work. I cannot see how there is a conflict between representing someone at court who you also represent within the firm; if there is a conflict, you shouldn’t be representing them as a firm. There is no evidence that clients are not being properly represented by solicitor advocates. This argument is continually raised by the Bar, but because there is no quality standard there is no way of explicitly saying this. I have seen very poor barristers and very poor solicitor advocates; it’s the quality of advocacy that matters. There are huge advantages for clients to have continuity of representation, especially vulnerable defendants and people who haven’t been through the system previously.
What are your predictions for 2016?
It’s going to be a challenging environment. No one knows quite what is going to happen with the criminal legal aid duty contract tenders and what the government’s next move will be. One thing I am more certain of is that we are going to see more solicitor advocates – in order to have a successful criminal practice, firms must be offering an in-house advocacy service – it’s logical, and clients expect it as standard now.
But conversely, we will also see more barristers and advocates either leaving the profession or moving away from crime work. The morale within the profession as a whole is low, and we feel like we have been under attack for a long time. Good people will leave, and that’s a shame.
What advice do you have for Advocacy Section members?
Crown court advocacy is a challenge, but it’s worth undertaking. Just make sure you do some specialist advocacy training. Watch other advocates in court while you’re waiting to go on and learn what you should and shouldn’t be doing. Get to know your judge before you appear before them. Sometimes in court, you see barristers and solicitors who are clearly annoying the judge for the way they are speaking or for interrupting them, so be aware of that – sometimes as advocates we are so concerned with what we want to say that we forget to listen. But, above all, remember that if you’re well prepared, there is no reason why you shouldn’t be there doing your job!
To find the article on the Law Society Website, click on the link below.