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Archive for the ‘News’ Category

Will I be granted bail?

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This article refers to adults, the law for youths is different.

 

Do I have a right to bail?

The starting point is that you have a “right” to be granted bail. This right can only be taken away in certain circumstances. These circumstances being that the court has substantial grounds to believe that if you were granted bail you would:

  • Fail to surrender;
  • Commit further offences on bail; or
  • Interfere with witnesses

In rare instances bail can be denied for your own protection/welfare.

 

What if I am already on bail?

If you are charged with an offence alleged to have been committed whilst on bail, then you do not have this automatic right to bail. In that case you do not have to be granted bail, but you can still be if you persuade the court that you will not fail to surrender, commit further offences or interfere with witnesses. If you appear in court following a failure to surrender at an earlier hearing you also lose the automatic right to bail.

 

Does it matter if I am a drug user?

If you have tested positive for class A drugs and refuse to co-operate with treatment you may not be granted bail unless the court is satisfied that there is no significant risk of an offence being committed whilst on bail.

 

Will I have conditions on my bail?

The court can grant bail unconditionally or they can impose bail conditions if they are satisfied that those conditions are necessary to address any risk that you would fail to surrender, commit further offences or interfere with witnesses. Any conditions imposed have to be both necessary and proportionate. Examples of conditions are curfew, residence, not to contact named witnesses, not to go to a specific area, or reporting to the police station. You or a person on your behalf could also agree to pay money into the court which would be forfeited if you subsequently failed to attend court.

 

What if the offence isn’t serious?

You should be granted bail if there is no real likelihood of a prison sentence if you plead guilty or are convicted. As always there are exceptions to the rule. You may still find yourself in custody if the court is satisfied there are substantial grounds for believing that you would:

  • Commit an offence while on bail by engaging in conduct that would, or would be likely to cause-
  • physical or mental injury to an associated person; or
  • an associated person to fear physical or mental injury.
  • Commit further offences if the offence was committed whilst on bail;
  • Fail to surrender, if you have previous convictions for this;
  • If you have been arrested for breach of bail for this offence and there is a fear of failure to surrender, further offences or interference with witnesses.

If you are charged with a non-imprisonable offence you can only be denied bail if you have previously failed to surrender and there is a belief you would do so again or following a breach of bail.

 

Are there any other reasons I could be kept in custody?

You can also be kept in custody for your own protection or if you are already a serving prisoner. If there is insufficient information to decide about bail you can be kept in custody for the purposes of obtaining that information.

The magistrates do not have the power to grant bail for anyone charged with murder or treason. For an offence of manslaughter, rape or a serious sexual offence where there is a previous conviction for one of these offences you can only be granted bail if there are exceptional reasons to justify it.

 

How can we help?

This is intended as an overview of the law and does not cover all potential bail issues. To be able to put forward the best argument for bail you should be represented by an experienced solicitor; we would be pleased to assist you. Please contact us on 0113 247 1477 or email us at [email protected].

Fail to provide a breath specimen

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If you are suspected of driving with excess alcohol in your body, you may be asked to provide a breath sample at the roadside. If that sample is positive, you are likely to be arrested and take to the police station.

 

Why do I have to do it again at the police station?

Once at the police station you will be asked to provide an evidential sample of breath, the sample taken at the roadside is just a preliminary test to see if you are over the limit.

 

But I wasn’t over the limit or driving!

It is crucial to note that the fact you were not driving does not mean that you can refuse to provide a sample of breath, nor does it matter if you weren’t over the limit. If the police have reasonable grounds to suspect that you were driving and you refuse, without good reason to provide a sample, you may be guilty of the offence.

 

What if I can’t provide a breath sample or the machine is broken?

If it is accepted, for whatever reason, that you cannot provide a breath sample, you will be asked to provide a sample of blood or urine. Failure to provide the requested sample without good reason is an offence. Which sample is requested (blood or urine) is at the officer’s discretion and is not for you to choose.

 

What if I wasn’t warned?

You have to be warned that failure to provide the sample is an offence, if the warning is not given this may be a bar to conviction – seek early legal advice.

 

What is a refusal?

A failure to provide a sample, even not trying hard enough, for example, constitutes a refusal.

The taking of a sample cannot normally be delayed for you to be given legal advice although the police may allow that to happen.

Examples from cases where reasonable excuse has not been found include: a desire to see a doctor, the illegality of detention, mistake or genuine belief, religious belief, the sight of blood, stress.

 

Is there a defence?

It is a defence to show that you had a reasonable excuse not to provide the sample. A medical reason such as asthma or a genuine needle phobia could constitute a reasonable excuse.

 

What will I get?

A conviction will result in a mandatory disqualification of at least 12 months and is often in the region of 18 months or longer.

If you have a previous conviction in the last ten years for a drink or drug driving offence, the minimum disqualification will be three years.

As well as a disqualification you could be fined, given a community order or sentenced to up to 6 months in prison.

 

Is it different if I was not driving?

If you were suspected of being in charge of a vehicle before failing to provide a sample rather than driving, the penalty is different. You may be disqualified, but if the court chose not to, they would impose ten penalty points. The maximum prison sentence for this offence is three months.

 

How can we help?

The law in relation to failing to provide a specimen of breath can be complicated, if you would like expert advice, please contact us on 0113 247 1477 or email us at [email protected].

Criminal Damage

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Essentially, the crime is made out if you intentionally or recklessly damage property. Most commonly it is damage to cars and windows, very often as an act of revenge.

The damage does not need to be permanent. There have been cases where graffiti, water-soluble paints on a pavement and squashing a policeman’s helmet have all been held to be damage, as has flooding a police cell.

If action, expense or inconvenience is involved in putting the matter right then damage will have been caused, as would be the case if you created ‘crop circles’ in a wheat field.

The court will consider all of the circumstances, whether something is damaged is a matter of fact or degree to be decided by the court.

 

What if it is my property?

You cannot unlawfully damage your own property, but it can still be an offence to damage jointly owned property. So, a person who smashes up a family home in a fit of rage would very often be guilty of the offence.

 

What if it was an accident?

There is sometimes a fine line between accident and recklessness. To prove recklessness, the court should be sure that you were aware of a risk that property would be damaged, and, in the circumstances, it was unreasonable for you to take that risk.

The offence can be committed by being reckless or intending to cause the damage. Intent is simply that you committed the damage on purpose (although in legal terms it is slightly more complex than this).

 

Is there a defence?

Whether the offence is committed depends on damage being caused without “lawful excuse”. You would have lawful excuse if you believed you had consent to cause the damage or would have had consent or that you were protecting your own property or that belonging to someone else. Your actions would have to be reasonable in all the circumstances. It is your belief that is important so if it is honestly held it may not matter if the belief is not justified.

Causing damage simply because you are drunk will afford neither a defence nor mitigation.

 

Where will I be dealt with?

This offence will be dealt with in the magistrates’ court where the value involved does not exceed £5,000. When there is more than one offence of damage the total of the damages will be used to calculate whether the offence is £5,000 or less. The court determines the value of the damage in deciding whether they are to deal with the case.

Where damage is caused by fire (arson) different considerations apply.

 

Is there a time limit on prosecution?

Even though certain offences can only be dealt with in the magistrates’ court the six-month time period for prosecution does not apply.

 

What sentence will I get?

Minor damage such as breaking a small window is likely to result in a conditional discharge or fine. Significant damage up to £5,000 caused as part of a spree can lead to a community order or custody of up to three months. The higher the value, the more likely imprisonment will be imposed, the maximum sentence at the crown court is ten years.

In appropriate cases we will work hard to have your case diverted away from the criminal justice system, an early apology and offer of compensation can sometimes be enough to avoid a criminal case.

 

How can we help?

If you would like to speak to someone about your case, please contact us on 0113 247 1477 or email us at [email protected].

Entrapment

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Agent provocateur is French for “inciting agent”, an entrapment situation where a person is enticed, incited or encouraged into committing an offence that he would not have otherwise committed.

 

How does it relate to criminal law?

The police frequently use undercover police officers in relation to drugs offences. An officer becomes familiar with local drug users and suppliers, and evidence for supply-related offending is obtained.  

If the officer asks the suspect for drugs is he an agent provocateur, is he an “inciting agent”?

Some people would try to argue he is, that they wouldn’t have committed the offence unless he had asked them. The difference is between the officer causing the offending and merely providing an opportunity for it to be committed with the officer rather than someone else.

 

What have the courts said, and Is it a defence?

Entrapment is not a defence, but it could be argued that the case should not be brought at all.

This would involve a consideration as to the degree of persuasion, the gravity of the offence. The question of exclusion of evidence may also arise.

In the case of Shannon it was said that if there is good reason to question the credibility of the evidence given, then the judge may conclude that the evidence should be excluded.

Two leading cases involved the supply of drugs to an undercover police officer. “L” argued that he had been lured into the supply.

The Court held that it would be acceptable if officers were to provide a person with an unexceptional opportunity to commit a crime and the person then freely took advantage of that opportunity.

The situation would be quite different and would be an abuse of process if officers instigated an offence by offering inducements and luring a person into a course of action he would not normally have followed.

In “G’s” case the actions of the officers, by contrast, were said to go beyond those of undercover agents as they instigated the offence, there was no evidence to suggest that without their intervention it would have been committed.

In a case involving an undercover journalist (Shannon v UK), it was said that an offender was not entrapped when he supplied drugs to the journalist as he had not been placed under any pressure to do so.

 

Do undercover officers have rules to follow?

There is an Undercover Operations Code of Practice issued jointly by all UK police authorities and HM Customs and Excise.

 

How can we help?

We are experts at assessing evidence and putting forward legal arguments. We can advise you as to whether entrapment applies to your case or not.

If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Manslaughter – New Sentencing Guideline

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The Sentencing Council, responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline in relation to manslaughter offences.

 

Which offences are covered?

The guideline covers:

  • Unlawful act manslaughter – a common law offence
  • Gross negligence manslaughter  – a common law offence
  • Manslaughter by reason of loss of control – a statutory partial defence to murder (sections 54 and 55 of the Coroners and Justice Act 2009)
  • Manslaughter by reason of diminished responsibility – a statutory partial defence to murder (section 2 of the Homicide Act 1957)

 

The offence of corporate manslaughter is covered by the Council’s health and safety sentencing guidelines.

 

When does the guideline take effect?

The guideline applies to all offenders sentenced on or after 1 November 2018; this means that if you are charged before the guideline comes in to force, you may still fall to be sentenced in accordance with it if you plead guilty or are convicted.

 

What are the different types of manslaughter?

Unlawful Act manslaughter – this is the most commonly prosecuted form of manslaughter and includes deaths that result from assaults where there was no intention to kill or cause very serious harm. It can vary greatly. For example, it could involve a situation where two friends briefly argue and one pushes the other causing him to fall and hit his head with fatal results. It could involve someone going out looking for a fight and attacking someone forcefully but not intending to kill. It could also include unintended deaths that result from other crimes, such as arson or robbery. 105 offenders were sentenced for this offence in 2016.

Gross negligence manslaughter – this occurs when the offender is in breach of a duty of care towards the victim which causes the death of the victim and amounts to a criminal act or omission. The circumstances vary greatly. In a domestic setting it could include parents or carers who fail to protect a child from an obvious danger. In a work setting, it could cover employers who completely disregard the safety of employees. 10 offenders were sentenced for this offence in 2016.

Manslaughter by reason of loss of control – This arises if the actions of an offender, who would otherwise be guilty of murder, resulted from a loss of self control, for example arising from a fear of serious violence. 12 offenders were sentenced for this offence in 2016.

Manslaughter by reason of diminished responsibility – Someone guilty of this offence would have been suffering from a recognised mental condition that affected their responsibility at the time of the offence, without which they would have been convicted of murder. 26 offenders were sentenced for this offence in 2016.

 

Why has this guideline been issued?

The guideline ensures comprehensive guidance where previously it was very limited. Until now, there has been a guideline only for corporate manslaughter, which comes under the Council’s health and safety offences guideline, and a guideline by the Council’s predecessor body for manslaughter by reason of provocation, which is now out of date following legislative changes to the partial defences to murder.

 

Will sentence length increase?

The Sentencing Council predicts only a minimal impact, around ten extra prison places per year as a result of the guideline but cautions that ‘it is difficult to ascertain how sentence levels may change under the new guideline.’

Experience tells us that there is a certain degree of sentence length creep’ following the implementation of new guidelines. Our advocates are trained in the use of all sentencing guidelines and equipped to ensure that judges apply them correctly.

 

How can we assist?

If you need advice concerning any criminal law matter, please contact us on 0113 247 1477 or email us at [email protected].

The Death Penalty and Extradition

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In the UK we have not had the death penalty for over 50 years. The last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then there has been a long-held opposition to the death penalty which has been applied in extradition cases.

 

What is extradition

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

 

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

 

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK. They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move Sajid Javid, the UK Home Secretary, has told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance.

 

What is mutual legal assistance?

MLA is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for MLA are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out, in the event of a conviction.

 

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK. Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.

 

How can we help?

Although you cannot receive the death penalty in the UK, you can face very lengthy prison sentences and severe restrictions on your liberty if convicted. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Cliff Richard, Privacy and the Data Protection Act

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In July 2014 the BBC filmed a search of Sir Cliff Richard’s property by the South Yorkshire Police. He was not arrested for any offence.

South Yorkshire Police provided the BBC with information that enabled them to be present at the scene. The disclosure given was that he was under investigation and the date, time and place of the intended search. Sir Cliff sued both the police force and the BBC in privacy and under the Data Protection Act 1998.

 

South Yorkshire Police

The police force admitted liability and agreed to pay him £400,000 in damages.

 

BBC

The BBC said that the information was volunteered to them by the police and denied any liability. The case as far as the police and Sir Cliff was concerned was that the police were manoeuvred into providing it from a fear and implicit threat that the BBC might or would publish news of the investigation prior to the search taking place.

 

What did the court decide?

The court rejected the BBC’s case saying that Sir Cliff had privacy rights in respect of the police investigation and that the BBC infringed those rights without legal justification. As Sir Cliff won his case on the privacy case, there was no need to rule on the data protection issue.

 

What happens now?

Sir Cliff was awarded both special and general damages. The Court did not agree with all sample instances provided for the special damages which will be ruled upon later if an agreement is not reached. General damages were awarded to cover the general effect on him and his life. The damage caused was said to be substantial, and £190,000 was awarded, aggravated damages of £20,00 were added as the BBC nominated its footage for a television award as “Scoop of the Year”.

 

Who pays what?

The BBC will pay for the aggravated damages, as the BBC was much more responsible than the South Yorkshire Police they will pay 65% of the damages that both parties are liable for, with the police paying the remainder.

What are the wider implications of this judgment?

Commentators are split as to whether this case turns on its own facts, linked as it is to a very high-profile case and person, or whether it impacts more widely and will lead to greater privacy protections for others being investigated. In our view it is too early to tell what the wider impact will be, but many clients will be interested in exploring options for ensuring early-stage police investigation are not leaked to the press. We take the view that where the leaking of an investigations is a risk, an early warning shot to the police may be required.

 

How can we help?

If you need advice in relation to any criminal law issue, then please contact us on 0113 247 1477 or email us at [email protected].

Consent

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It should be easy enough, shouldn’t it? Yes or no?

As always, life and the law are more complicated than that, and the issue of consent is not so simple.

 

What is consent?

A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.

 

Can a drunk person consent?

Yes, drunken consent is still consent, but this is where problems can arise. If a person loses their capacity to choose, through drink, then he or she is not consenting.

Consent is frequently the issue in many rape cases where it is one word against the other.

The Courts have said to focus on these issues:

  1.    Did sexual intercourse take place?
  2.    Did the complainant consent to sexual intercourse?
  3.    Did the complainant have the freedom and capacity to consent?
  4.    Did the defendant reasonably believe that the complainant was consenting? (this does not apply in all cases).

 

Who decides?

At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

 

How do you prove consent?

In the absence of a written contract, and even then, there could be doubts, it is for the jury to decide having heard the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting, there must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may be vitiated.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

 

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.

It is our job to present the strongest case possible.

You are entitled to free and independent advice at the police station, regardless of your means, and we can provide that advice. Contact us on 0113 247 1477 or email us at [email protected] for further information or to discuss your case.

It’s health and safety gone mad!

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Or is it?

The Health and Safety Executive is the national regulator for workplace health and safety.

Interestingly, on its website, there is a page for debunking health and safety myths, such as the one where flags were banned from civic cars for “health and safety”, or the removal of alcohol from a workplace Christmas party.

 

So, what do they do?

The HSE “mission” is to prevent work-related death, injury and ill-health. They concentrate on the most serious risks, targeting industries with the greatest hazards and sectors with the worst risk management records. They provide free guidance and advice, inspect premises and investigate when things go wrong.

 

What powers do they have?

They can inspect premises, speak to relevant people, observe workplace activities, check whether risk controls are effective and identify any breaches. In doing so, they can consider taking enforcement action and investigate any potential offences.

 

What is enforcement action?

They can provide advice, serve notices, withdraw approval or vary licences, conditions or exemptions. More seriously they can issue cautions or prosecute. If you do breach any regulations you can be made to pay for the time it takes the HSE to help you to put the breach right.

 

Investigations

The HSE will investigate serious work-related incidents, injuries or cases of ill-health, in line with its incident selection criteria, as they do not investigate everything that is reported to them. Cases can be brought against corporate bodies and in some cases individuals as well.

 

What sentence could I get?

There aren’t any specific sentencing guidelines for health and safety offences other than corporate manslaughter although they are likely to come under general offence guidelines that are currently being consulted upon.

 

Recent cases

Air Liquide (UK) Ltd was fined £160,000 after pleading guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974. Members of their emergency response team were appropriately dressed to dispose of redundant gas bottles; however, one was dropped spilling highly hazardous fluid to the floor. Vapour drifted to 2 unprotected workers affecting one so severely he collapsed to the floor.

Bartram Manufacturing Ltd pleaded guilty to breaching section 2 of the Health and Safety at Work etc. Act 1974 and was fined £82,000. A forklift truck reversed into a stack of roof trusses which fell onto an employee causing multiple fractures.

WE Rawson Ltd was fined £600,000 for breaching section 2(1) of the Health and Safety at Work etc. Act 1974. An employee died following crush injuries received when he attempted to free a stuck package from a packaging machine. The HSE found the company failed to take measures to prevent access to the danger zone between the moving conveyers.

Simon Thomerson of Clearview Design and Construction Ltd was jailed for eight months following the death of two labourers employed by him when they were involved in an explosive fire within a work unit. He pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974.

 

How can we help?

Even though a case may be investigated by the HSE rather than the police you can still be under investigation for criminal offences that can lead to imprisonment or very substantial fines for companies.

You need expert advice from the outset which we can provide. To discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Explosives

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Rather than Guy Fawkes or his modern-day counterparts many of the recent cases involving explosives have been in relation to thefts from cash machines. The law is old but still very relevant today; it may not be appreciated that a separate, more serious offence, may be being committed when explosives are used to facilitate another offence.

 

What is an offence?

The Explosives Act 1883 makes it an offence to cause an explosion likely to endanger life or property, to attempt to do so or to keep an explosive with intent to endanger life or property.

 

Are these offences serious?

The offences can only be dealt with at the crown court and carry life imprisonment, so yes, they are very serious indeed.

 

What are explosives?

The term ‘explosive’ can include petrol bombs, gunpowder, nitro glycerine, dynamite, fireworks and ammunition.

 

What about offences involving cash machines?

It has been said that deterrent sentences should be given when explosives are used to steal from cash machines. Where there is a charge under the Explosives Act and the offence of burglary/theft, there are likely to be consecutive sentences. Lengthy sentences are therefore imposed.

The starting point for the explosive offence alone was 12 years in a case where a cash machine was blown apart using oxygen and acetylene following remote ignition causing costs of replacement and damage of nearly £40,000. This offence was to steal £19, 170 cash.

In another recent case of conspiracy to cause an explosion and burgle commercial premises, one of the first gangs in this country to use explosives to attack cash machines, a sentence of 15 years imprisonment was imposed on a guilty plea for one of the leading figures.

 

Are there other offences?

A further offence is attempting to cause an explosion with intent to endanger life or property.

For offences that do not involve burglary and cash machines, serious sentences are also imposed. A man who assembled an explosive device with a view to targeting his ex-wife and social workers was given ten years imprisonment. Fifteen years was upheld by the Court of Appeal for a man who was manufacturing letter bombs, for an IED device on an aircraft 22 years imprisonment.

There is a further offence of making or possessing explosives in suspicious circumstances which attracts lower sentences. A defendant who made three devices from empty gas canisters containing a mixture of weed killer and sugar, for example, was given three and a half years imprisonment, another defendant aged 18 of good character who made a homemade pipe bomb out of curiosity was given eight months.

 

How can we help?

You can see from the examples above that there is a wide range of sentencing options dependent on the offence charged.

We will assess the evidence in your case to make sure that the correct case strategy is deployed. If you would like further advice in respect of these offences or any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].