The Morning After the Night Before

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When people think about drink/drug driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving, but more often, the story is quite different.

The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons.

A quick shower revives the senses and off to work you go. Traffic is heavy as usual, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang – a relatively minor shunt causing minimal damage, to really kick start the day!

But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs. 

The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth. 

What happens next makes the earlier headache pale into insignificance. 

An arrest, charge and court appearance resulting in a minimum period of disqualification. 

Will you keep your job? What will your partner say? 

The safest message remains ‘none for the road’; in some cases, there are legal defences available, and we can discuss these with you. When a legal defence is not possible, we work hard to mitigate the sentence and get your life back on track.

Your local police force will now have in place its Christmas and New Year drink and drug driving campaign, roadside testing will increase, and officers will be extra vigilant.

We hope that you do not need our services over the festive period, but if you so please be assured that we are here, on your side, 24 hours a day. 

 

How we can assist

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Divided Loyalty Can Exact a High Price

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A strange case at the Old Bailey drew to a close this week, resulting in a Metropolitan Police Officer, Robyn Williams, being sentenced to a community order with 200 hours of unpaid work, concerning the possession of an indecent video of a child.

On the face of it, the sentence is not at all surprising, some might think lenient, but this is not a usual case. 

The image was sent via WhatsApp to Williams (and several other people) by her sister, also a police officer, who was concerned about the image being circulated in the public domain. 

At no time was there a suggestion of any ulterior motive on the part of Williams.

 

So, what were the offences?

Williams was charged with possessing the image and also failing to report her sister. She was acquitted of the second charge.

The Jury found that Williams knew the content of the image, although she had claimed differently in evidence.

 

But is a person really criminally liable if someone sends them an unsolicited image via a messaging service?

The starting point is that if a person is knowingly in possession of the image, then that is an offence. The issue of ‘possession’ is in itself somewhat complicated, but that is not being considered in this article.

However, the various pieces of legislation that cover this scenario do provide a legal defence.

For example, section 160 of the Criminal Justice Act 1988 provides:

[It is a defence if…] ‘…the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.’

So, the issue, in this case, was failing to do anything about the photograph in a reasonable time.

The judge, Richard Marks QC held that Williams had been sent the video unsolicited by her sister on a Saturday morning, by 7 pm that same day, she was aware a video was on her phone and of “its broad context”,

The judge said it was a grave error of judgment to do nothing, adding that, because of her experience as a police officer, she knew the imperative to act to safeguard the very young child shown in the video being abused by an adult.

By any measure, this is arguably a sad case for all concerned and will quite probably bring to an end a distinguished career in the police service. Others may feel that officers are to be judged to a higher standard. 

The salutary lesson for everyone is that if you inadvertently come into contact with illegal items, you should act quickly to protect your position.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Innocent and Angry – A Measured Response Required

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It is a common occurrence to come across suspects and defendants who fee extreme anger at being caught up in the criminal justice process.

That anger sometimes spills over into the public domain, and the free availability of social media platforms such as Facebook and Twitter can allow for an all too easy way to express frustration.

When those frustrations contain imply an attack upon the complainant, there can be repercussions in the event of a conviction. It is therefore ordinarily wise for accused persons, and those close to them, to maintain a dignified silence, no matter how hard that might be.

Former TV Presenter Stuart Hall incurred the wrath of the Court of Appeal, in respect to remarks he made in a public statement. He referred to the allegations against him as ‘pernicious, callous, cruel and above all spurious.’

 

The court observed:

‘Whatever legal advice the offender had by then been given, he knew the truth. He knew that he was guilty of molesting the complainants. As we have said, this deliberate falsehood is a seriously aggravating feature. 68. The offender was an expert in the ways of the media. He was fully alert to the possible advantages of manipulating the media. At that date he was hoping to escape justice and he was, as we see it, attempting to use the media for the purpose of possibly influencing potential jurors. Whatever it may or may not have done to influence any potential juror, we have a clear idea of what it did to some of the victims. One victim describes how the offender’s outburst “absolutely incensed” her. She felt furious about his blatant lies. There is a similar impression from another victim.’

 

In the case of Max Clifford who made numerous public statements proclaiming his innocence, the court said:

‘In passing sentence the judge referred to certain behaviour of the appellant. Some of it had been commented on in the victims’ impact statements. They had been upset by it. The judge said that the “additional element of trauma” caused by the applicant’s “contemptuous attitude” was something that he would take into account in passing sentence. 

 

The first statement was a forceful claim of innocence reflected later in the defence advanced, but not directly referring to the victims. The second statement was a reiteration of innocence followed by a vehement complaint about the fact that the victims were entitled to anonymity. The reiteration of innocence again did not directly impugn the victims. The complaints about anonymity relate to a feature of the criminal process. They concern a topic which arouses public debate from time to time and which has been the subject of different views in Parliament on different occasions. 

Whilst we readily understand that victims who were eventually vindicated would find such comments upsetting, we think that great care needs to be taken by sentencing courts not to elevate denials, albeit vehement, into something deserving of further punishment in the absence of some more explicit traducing of the victim. The court, of course, is perfectly entitled to reflect these matters in withholding available mitigation since the offender has shown no sign of remorse. Similarly, an offender who has contested the trial will lose what might be substantial credit for a guilty plea. We think that these remarks, properly considered, would of course justify a withholding of mitigation, but they should not have been used by way of positive aggravation.’

Taking these two cases together, it would appear that there is a fine line between statements that might reduce mitigation and those that may well aggravate the offence. Either-way, there may be a high price to be paid for making public pronouncements.

Before making any public statement about your case, it is essential first to take legal advice. We are well versed in the pros and cons of allowing a situation to play out in public and can advise you as to the best course of action.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Playing Politics with Crime?

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We are in the midst of a general election, so it is perhaps not surprising that ‘law and order’ are featuring in the news as the main political parties fight for the popular vote.

While as a firm, we do not offer any party-political opinion, it is worthwhile taking a brief look at some of the recent announcements.

 

Child murder

The Conservatives propose that where a person aged at least 21 years murders a child under 16 years, the starting point should be a ‘whole life order’, meaning that they would never be eligible for parole. The Criminal Justice Act 2003 already contains measures in this regard, but this is, on the face of it, a tightening up of those provisions. On our assessment, if enacted, this provision is unlikely to impact on more than one or two cases each year.

 

Knife Crime

Knife crime remains high on the political agenda, and we have written about this topic in the recent past. The Conservatives propose changes to stop and search powers, with swift processing of those arrested before the courts. Any changes to stop and search provisions are likely to prove controversial, and there are concerns about whether the current resourcing of the criminal justice system is sufficient to cope with any radical new initiatives.

 

Policing

The conservatives have already announced the recruitment of 20,000 extra police officers, so it is a fair assumption that if this target is reached, and all other things remain equal, more people will be arrested and brought before the courts. Again, some resource implications remain unaddressed.

The Liberal Democrats have pledged a further £300m for local policing.

 

Parole Board

The Conservatives have announced further changes to practice and procedure, to make the process more ‘victim-centric’ and transparent. 

The Conservatives propose raising the ‘victim surcharge’ by 25%.

 

Is this a ‘Law and Order’ election?

The Conservatives have returned to a traditional ‘law and order’ theme, tough on crime and tough on the causes of crime. As well as punishment, there are promises of better prison rehabilitation schemes and more robust non-custodial options.

Other parties do not lead on this issue in quite the same way, but all promise better resourced public services, which inevitably includes policing.

 

Keeping a watching brief

Whatever laws the next government brings forward, we remain committed to ensuring that the proper rights and protections afforded to all those we represent are safeguarded. We continue to be vigilant and ensure that any legislative developments that are brought forward do not infringe your fundamental rights and freedoms.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

The Pizza Alibi

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On 10th March 2001, HRH Prince Andrew is alleged to have met and been photographed with a lady who has accused the Prince of sexual misconduct.

In a BBC interview, Prince Andrew throws ridicule on that suggestion and throws up two interesting observations in an attempt to establish an alibi:

“On that particular day that we now understand is the date, which is 10th March, I was at home, I was with the children and I’d taken Beatrice to a Pizza Express in Woking for a party at I suppose sort of four or five in the afternoon.

“…and then because the duchess was away, we have a simple rule in the family that when one is away the other one is there.”

Understandably, a member of the Royal Family may well remember a trip to Pizza Express, usual for the rest of us, but perhaps not a typical dining arrangement for the privileged few.

 

So, how does this stack up as an alibi?

In law, an alibi is defined as follows:

“…evidence tending to show that by reason of the presence of an accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”

The fundamental problem with Prince Andrew’s account is that this alibi can only recover what must have been a relatively short period of time, the journey to/from (about 40 mins each way assuming the Prince was at his Windsor home) and time at the party itself (imagine 2 hours), so in total may be no more than 4 hours or so. 

Unless the timing of the allegation is such that it corresponds precisely with the time Prince Andrew claims to have been in Woking, this is evidentially of little significance.

The next part of his account is also an alibi and amounts to a not unreasonable claim that he was at home (presumably looking out for the children, although he neglects to say this) because his wife was away.

Again, as a starting point, this is not at all unreasonable, but we have a direct contradiction of accounts and a photograph which has not been established to be anything other than genuine at the moment. 

This clash of accounts would need to be tested by a jury.

In short, mere assertions of alibi tend to be almost worthless. A robust defence strategy would nail down the times, and look for corroborative evidence. A prosecutor might easily find numerous occasions where both family members are away and ask about childcare arrangements – it is by no means unusual for members of the Royal Family to employ staff to look after children.

Regrettably for the Prince, his TV interview established nothing over and above a bare denial, which he had already given. 

When our clients come to give an account on such a vital issue such as alibi, we ensure that a robust and detailed case is presented to the court. 

When reputation and liberty are at stake, you should leave nothing to chance.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. 

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Lies and Easy Money

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In a case this week involving Jet2 Holidays, Karl and Laura Hughes claimed that they had suffered sickness while on a package holiday. They said they had food poisoning as a result of eating contaminated food or drink or swimming in the hotel’s unsanitary pool. In witness statements, Mr & Mrs Hughes said that they became ill on the second day of their holiday and were acutely ill for the remainder of the holiday. The witness statements were sent to Jet2 with an initial letter of claim.

Jet2 looked at the social media accounts of Mr and Mrs Hughes. They saw photos and comments posted by them during the holiday, indicating they were physically well while away and had enjoyed their holiday. As a result, Mr and Mrs Hughes did not start proceedings against the company. 

Jet2 however, decided to ask the court to start contempt of court proceedings against Mr & Mrs Hughes. This was on the basis that the witness statements were false, relying on the social media posts.

Mr & Mrs Hughes denied that the information in their statements was false. They made further statements setting out that they had complained to the hotel manager, and despite their illnesses, they had “put up a front” that they were having a great holiday. The social media posts were not a true reflection of their mood at the time.

Initially, a court decided that proceedings for contempt of court could not be brought as the statements had not been served as part of court proceedings. A higher court did not agree saying that the test was whether the conduct in question involved an interference with the administration of justice either in a particular case or more generally as a continuing process.

The court went on to say that even though Mr & Mrs Hughes had not yet started proceedings when the statements were sent that they were still capable of interfering with the administration of justice. 

The issue of whether Mr & Mrs Hughes were in contempt of court has not yet been decided, but Jet2 now have permission to bring those proceedings. The moral of the tale is just because something does not happen “in court” does not mean that you cannot be in “contempt of court”.

 

What could happen?

If Mr & Mrs Hughes are found guilty of contempt of court, they could be sent to prison for up to 2 years or receive a fine.

It can be very tempting to make a false claim against an insurer, but they are now fighting back in the civil courts. In addition, you could face criminal prosecution for fraud, leading in some cases to a prison sentence and criminal conviction.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

Tracking violent offenders

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A pilot is being carried out into electronic monitoring global positioning system. The aim of the pilot is to gain information to look at how existing and new electronic monitoring technologies could be used more effectively. A specific pilot is also taking place in London for offenders who have served a custodial sentence for knife crimes.

 

What is the pilot for knife crime offenders?

The pilot began in February 2019 and is now being expanded from 4 to 24 boroughs of London with up to 300 offenders able to be tagged in the 12-month pilot. The pilot is due to end in April 2020.

Eligible offenders are those who are released from prison following sentencing for offences such as possession of a knife, robbery, aggravated burglary and grievous bodily harm. The offender must be over 18 and released from a London prison to suitable accommodation in a pilot area. The tagging is used as part of strict licence conditions.

 

Hasn’t the tag been around for ages?

The tag that is commonly referred to is a tag to monitor a curfew. A curfew is monitored through radio frequency technology and does not track location. Such a tag is frequently used as part of bail conditions and on release from prison sentences.

 

What is the difference?

A global positioning system (GPS) tag is a location monitoring enabled tag. A person’s location is captured 24 hours a day. It can also be used to monitor a specific area such as an exclusion zone where active monitoring only takes place if there is a breach of that condition.

 

How does it work?

A tag worn around the ankle is worn 24 hours a day, and a satellite signal can accurately pinpoint the wearer’s location. They are designed to be difficult to remove, and if it is removed, an alert is generated to a monitoring centre. The location monitoring is carried out in live time, and the alerts in the event of a breach are immediate so that appropriate action can be carried out. This means that high-risk offenders can be prioritised for an emergency response.

 

How is the information used?

An offender’s movements will be checked against the location of reported crimes or areas he is not permitted to be in as part of the licence conditions. It was also be used statistically to improve crime detention, monitor attendance at locations such as drug testing and rehabilitation activities and to enforce restrictions such as exclusion zones.

As well as being able to check that a person is where they should, or shouldn’t, be, monitoring can be used to assess behaviours and routines. An offender’s probation officer can use the information to see how that person is spending their time and how this impacts on their behaviour or possibility of further offending. The Probation Service can be provided with daily “heat maps” of addresses visited by the offender and can be used to challenge their lifestyle choices.

 

Previous issues with tags

Earlier this year Serco was fined nearly £23 million by the Serious Fraud Office under a deferred prosecution agreement for offences of fraud and false accounting. The company had understated the level of profitability of its electronic monitoring contract in reports to the Ministry of Justice. The investigation began in 2013 when Serco paid £70 million in compensation to the government and lost their contract. Serco and G4S faced allegations of charging the government for electronically monitoring people who were dead, in jail or out of the country.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. 

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

General Election 2019 – Don’t Get Caught Out

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The parliamentary session has come to an end, and we will go to the polls on 12th December 2019 to decide the political makeup of the next parliament.

The Representation of the People Act 1983 creates a number of offences concerned with political elections and those engaged in political party management should receive detailed training in this regard.

 

But what happens if people fall foul of the law?

The guideline case in this area is Hussain [2005] EWCA Crim 1866, where the following observations were made.

 

Why election offences are so serious?

‘Among the most important features of the way of life in this country is, first, the fact that this country is a democracy. It has a form of government based upon the principle that, subject to limited exceptions, each individual member of the public is entitled to a single vote to elect the government of the day, whether national or local. In this process of election every vote should be of equal value. The second feature is that, although we have no reason for complacency, the government in this country (both national and local) is usually free from any form of corruption. The third feature to which we draw attention is that the principles to which we have already referred are every bit as much as important in the case of local government as they are in the case of central government.’

 

The danger to democracy

‘If in a democratic society the electoral system is contaminated by corruption or fraud, it will be rendered worthless. It is the responsibility of the courts and our justice system as a whole, so far as it is within the courts’ jurisdiction, to protect the country’s electoral system. This is a responsibility to which the courts must attach the greatest of importance.’

 

The need for deterrent sentences

‘Having regard to the nature of those offences, it was of importance that the punishment that was passed was one which would deter others from committing offences of that sort. Even a deterrent sentence has to be proportionate to the offence and not unjust in relation to the offender. However, a deterrent sentence is passed by the courts with the primary object of deterrence.’

 

Age and good character of limited mitigation, possibly aggravating the offence in some cases

‘… the circumstances of the offender, such as the fact that in this case the applicant is now aged 62 and suffers from angina, become of significantly less importance. So does the fact that hitherto he had been a leader of the community to which he belonged and that he was regarded by those in the community who knew him as being entirely estimable. Indeed the very fact that he had this reputation within the community meant that it was easier for him to commit these offences. No doubt if his name had not been associated with the election in the way that it was, it would have been more difficult for those who were acting on his behalf to persuade people to entrust their voting papers to their custody. The applicant took advantage of members of his own community who were less educated and less able to protect themselves than the majority of the electorate in this country. They did not understand what they were doing when they handed over the papers. He used others to carry out his fraudulent intentions. By doing so they became part of a conspiracy to undermine the electoral system. These were calculated offences.’

 

Actual Sentences Imposed

In the case of Hussain (above) a sentence of 3 years 7 months was imposed for large-scale election fraud.

In Fadaka (2015) which concerned a false statement concerning candidate eligibility, 12 months suspended sentence was quashed and 6 months immediate term imposed instead.

And finally, in Khan (2009), another fraud case in relation to ‘ghost voters’, the court commented that the appellants were wise not to appeal sentences of 42 and 54 months.

The clear message from the Court of Appeal is that election fraud offences will be treated extremely seriously and immediate custody is almost inevitable.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Investigating Death

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Cases involving the death of a person can have a devastating impact on all concerned. From our perspective, we often deal with people facing the gravest charges after an incident causing loss of life. The gravity of the proceedings can have a devastating emotional impact on our client and their family.

At the same time, all parties will be acutely aware that those others will be grieving after loss and expecting the justice system to deliver some form of closure for them.

A complex issue that often arises is concerning the question of a second post-mortem, often essential so that the defence can probe and question any initial findings, seek out any error and test any alternative hypothesis. 

On occasion, the causative issues surrounding death are not in dispute (for example in many road traffic cases) and the Coroner can arrange for the speedy release of a body so that funeral rites can take place. In other cases, the issues can be far more complex, particularly in cases involving infant death, or where complex case theories have been developed by the prosecution (such as alleged killings in a hospital or other environment).

In all cases, we act in the best interests of our client but do so in a considerate and sensitive way, as anyone would rightly expect. When a second post-mortem is necessary, we will request that it be undertaken as soon as practicable.

A particular problem that some suspects can face is the funding of second examinations pre-charge. Unless the suspect is eligible for legal aid, and a great many people are not at this stage of the proceedings, any investigation may need to be funded privately, or via a request to the Coroner. This is an issue that we feel urgently needs addressing as it can contribute to considerable delay, which is not desirable for anyone concerned.

The Senior Coroner issued long-overdue guidance concerning requests for second post-mortem examinations as recently as September 2019. 

We keep such guidance very much in mind but will not hesitate to forcefully advance any case for a second post-mortem examination where we feel it is in our client’s best interests to pursue it.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case

Unduly Lenient Sentences – Scheme to Be Extended

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The government has announced changes to the Unduly Lenient Sentence (‘ULS’) Scheme.

There are certain offences where the prosecution (via the Attorney General) can ask the Court of Appeal to review a sentence if it is thought to be unduly lenient.

Any person can ask the Attorney General to consider a sentence and decide whether or not to refer the case to the Court of Appeal.

The referral must be made within 28 days, but this period often creates a period of uncertainty and stress for an offender who has been sentenced. In some instances, a successful referral can result in a person who has been given a non-custodial sentence, being sent to prison.

The cross-Government Victims’ Strategy published on 10 September 2018 contained a commitment to keep under review and consider extending the scheme to additional offences related to stalking and harassment; indecent images of children and sexual offences. 

The proposed change will fulfil this commitment by amending the Reviews of Sentencing Order to include the further fourteen serious sexual and violent offences. 

The inclusion of these offences relating to sexual offending, intimidation and abuse within the ULS scheme is intended to reflect the serious and long-lasting damage they have on victims and survivors. This also rectifies a discrepancy whereby a large number of sexual offences committed against children were included in the scheme, but offences committed by people in positions of authority, and offences committed against people with a mental disorder impeding choice, were not. 

The new offences that are eligible for review are:

  • section 1 of the Protection of Children Act 1978 (indecent photographs of children)
  • section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child)
  • section 4 (putting people in fear of violence) or section 4A (stalking involving fear of violence or serious alarm or distress) of the Protection from Harassment Act 1997
  • section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship)
  • section 16 (abuse of position of trust: sexual activity with a child);
  • section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity)
  • section 18 (abuse of position of trust: sexual activity in the presence of a child)
  • section 19 (abuse of position of trust: causing a child to watch a sexual act)
  • section 26 (inciting a child family member to engage in sexual activity);
  • section 30 (sexual activity with a person with a mental disorder impeding choice)
  • section 31 (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity)
  • section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice)
  • section 33 (causing a person, with a mental disorder impeding choice, to watch a sexual act).

The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2019 also rectifies two previous oversights. It adds in the attempt to commit, and the incitement, encouragement or assistance in the commission of, the two modern slavery offences to paragraph 2 of Schedule 1 via the Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015. This Order also clarifies that the offence of causing racially or religiously aggravated harassment, alarm or distress under section 31(1)(c) of the Crime and Disorder Act 1998 is not in scope of the scheme, as it is a summary-only offence.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.