A Guide to Assault by Penetration Offences

Being accused of any sexual offence is a stressful experience. Understanding the nature of the offence that you have been accused of is an important starting point for figuring out your options. In this article, we outline the definition of assault by penetration, the difference between assault by penetration and rape, and the sentencing guidelines that indicate how this offence might be punished if you are found guilty at trial. We also outline the possible defences to assault by penetration, and provide some examples of incidents that could lead to this charge being brought. As with any serious crime, it is recommended that you seek the advice of an expert criminal defence solicitor as soon as possible.

What is an assault by penetration offence?

The offence of assault by penetration is set out at Section 2 of the Sexual Offences Act 2003. It involves the penetration of the vagina or the anus, with a body part, or another object. It does not include penetration of the vagina or the anus with the penis, as this would be dealt with under the offence of rape.

For the offence of assault by penetration to be made out, the following elements must be present:

1. The defendant must penetrate the vagina or anus of the victim;
2. The penetration must be with their finger or another object;
3. The penetration must be sexual (this would exclude for example, a doctor inserting a contraceptive device into a woman’s vagina as part of a medically-appropriate treatment plan);
4. The victim did not consent to the penetration;
5. The defendant did not reasonably believe that the victim consented.

Consent is agreement to an activity by choice, where a person has both the freedom and the mental ability to make the choice. In order for consent for sexual activity to be valid, the person agreeing has to understand what is happening, so that they can make an informed choice to agree to it. This means, for example, that if a person is drunk or under the influence of drugs, they may lose the capacity to consent.

The legal age for sexual activity is 16 years old. If the victim is younger than sixteen, the law says that they are not capable of consent. This is the case even if they agree to the activity. If the victim was under the age of 13 years old, a separate and much more serious offence applies: assault of a child under 13 by penetration.

What is the difference between rape and assault by penetration?

Assault by penetration involves penetration of the vagina or anus using a finger or other object. By contrast, rape involves penetration of the vagina, anus, or mouth using the penis. In some cases, where the victim is unsure what body part or object the defendant used to penetrate their vagina or anus, the prosecution will choose to bring the charge of assault by penetration because it only requires them to prove that penetration took place, and not what the victim was penetrated with.

What are the assault by penetration sentencing guidelines?

Assault by penetration is a very serious offence and the maximum sentence is a life sentence. That said, the sentencing can arrange from a community order to a 19 year custodial sentence. When determining the sentence, the court will consider the culpability (blameworthiness) of the defendant and the seriousness of the harm caused to the victim.

Factors that increase culpability include: planned or pre-meditated offences; the use of alcohol or drugs upon the victim to commit the offence; the abuse of a position of trust – where the offence is committed against someone the defendant has been entrusted to protect (such as a carer and a patient); and commercial exploitation or motivation, for example, if the offence was carried out in order to make pornographic material for sale online.

The court will consider that the offence was more harmful if: it was carried out using a large or dangerous object; there was a particularly high level of violence used in the commission of the offence (beyond that which is implicit to the offence itself); or if the defendant took additional steps to degrade or humiliate the victim. More information regarding the sentencing guidelines can be found here.

Are there any defences to assault by penetration?

Consent

Where it is accepted that assault by penetration took place, it will be a valid defence if you can show that the victim consented to the activity. If a person has consumed too much alcohol or another inebriating substance, they may not have the mental capacity to give their valid consent at that time. Whether the victim was so inebriated that they were unable to consent is a question for the jury, depending on the facts of the case.

Alternatively, it is possible to defend yourself on the basis that you had a reasonable belief that the victim consented. The jury will be asked to decide:

1. Did you believe that the victim consented?
2. Was your belief reasonable? You will not be able to rely upon an honest but unreasonable belief in consent.

When considering the reasonableness of your belief that the victim consented to the sexual activity, the court will look at all the circumstances including any steps you took to check if the victim consented. This could include asking them directly or indirectly, as well as physical actions, and body language.

If you were over the age of 16, and you were aware that the victim was under the age of 16, your belief in their consent is irrelevant because the victim is incapable of consent, according to the law. However, if you reasonably believed that the victim was over the age of 16, there may be a defence available to you.

In certain circumstances, the law assumes that the victim did not consent, unless proven otherwise. These include, if at the time of the act or immediately before it:

• violence was used or threatened against the victim, or another person
• the victim was unlawfully detained
• the victim was asleep or unconscious
• because of a physical disability, the victim would not have been able to communicate consent or lack thereof
• the victim was drugged, or given a substance that stupefied or over-powered them

General defences

The following are general defences that could apply to assault by penetration:

Duress: This is where you were forced or pressurised by a person to commit an offence. The court will consider whether you reasonably feared death or serious injury if you did not commit the act, and whether a reasonable person in your situation would have shared those fears and responded in the same way. An example could be if a gang member was forced, by another gang member, who was holding a gun to their head, to commit assault by penetration.

Insanity: If the court finds that you were suffering from a recognised mental illness that caused you to lack the mental capacity to commit the offence, you may be acquitted on the grounds of insanity.

Mistake: This defence could apply if you were mistaken as to certain factual circumstances and would not have committed the offence if you had known otherwise.

Automatism: If you were unaware of your actions at the time of committing the offence, in some circumstances, you may be able to rely upon the defence of automatism. Generally, if you have voluntarily consumed alcohol or illicit drugs at the time of the offence, you would not be able to rely on this defence.

What are some example assault by penetration cases?

• A man, A, meets another man, B, on a mobile dating app. They spend the night together and have consensual sexual intercourse before going to sleep. In the morning, whilst B is still sleeping, A penetrates B’s anus using his finger.
• X is in a nightclub with her friends. Whilst she is in the bathroom, a man she does not know pushes her into a cubicle, puts his hand into her underwear, and penetrates her vagina with his finger. She does not agree to what is taking place, but she is so shocked that she does not fight back.
• Y persuades his girlfriend Z to let him tie her up, as part of sexual roleplay. They have a safe word that means stop. He removes her clothes, blindfolds her, and binds her hands and feet. Without telling Z, Y begins filming her. He then begins to penetrate her vagina with a sex toy. Z does not want to continue and says the safe word, however, Y does not stop.

How can I get help with Assault by Penetration Offences?

If you have been accused of assault by penetration, seek legal advice immediately. This is a very serious offence, and you will need the assistance of expert criminal defence solicitors to help you prepare your case. The team at Stuart Miller Solicitors has many years of experience representing individuals in cases of alleged sexual offences, and an impressive record in getting cases dismissed. Call us today for a no-obligation and non-judgemental consultation.

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Ayesha Akbar

20:24 06 Mar 24

We had an issue with the police raising an incorrect safeguarding issue against our daughter because we used a Complementary Alternative Medicine (CAM) which they disagreed with (wet cupping therapy). The police wanted us to sign a community resolution order admitting that we assaulted our child! We spoke to Mohammed Zeb who swiftly acted to contact experts in our field and his field, along with experts in social services matters and gave us recommendations to challenge the police. Their weak case quickly dissolved into no further action when the police realised that we would not accept a resolution order claiming we assaulted our child.I would strongly recommend Mr Zeb to all and would use nobody but them in the future.

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10:14 16 Feb 24

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15:27 08 Feb 24

Stuart Millers were great at dealing with a tricky case and managed to get a great outcome. From the first meeting and hearing, Abu Kibla was friendly, knowledgable and very helpful and you can see a genuine care for his clients. Luke Collins did the day to day and was great at preparing clear written representations and dealing with the CPS. Kathleen Joyce attended the final hearing and despite a last minute time change by the court the day before, she was well prepared, presented the case and mitigation arguments perfectly and was very reassuring and comforting throughout the whole day. Professional, responsive and reasonable fees. Would definitely recommend the firm.

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20:42 07 Feb 24

Unfortunately I got myself into abit of trouble and didn't have a solicitor at the time. When I was in the police station I was asked if I wanted a solicitor and I said yes and I was then put in a cell till I was interviewed. Officer come to my cell to take me to my interview and asked if I wanted to consult with my solicitor I said yes, when we got to the Consultation room Mr Zeb was waiting for me and he ensured me that everything was going to be okay and this case will be solved with no problems at all and he was right I got NFA and the case was dropped that's all thanks to Mr Zeb he was very professional in this field and was intouch with me and kept me updated with everything that was going on. I will definitely use this firm again in future.

Clare Peters

20:48 06 Feb 24

We would like to say thankyou so much for all your hard work and support given not only to my husband through his court case but to myself as well. Extra thanks to Kibla, Sophie,Bobbie and our barrister Faisal Saifee for the great outcome.

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12:36 22 Jan 24

Many people promise to deliver some just talk nonsense on social media platformsThe truth is that your defence team must be on the same level as your thought if you have any chance of winningMy case was difficult complex and very seriousI thank you all at Stuart miller : Mohammed Zeb and Peter had it not been for your care knowledge support I would not be here todayThank you from my family and I

Jamshad Naeem

22:14 20 Jan 24

Words can not do justice to Stuart Miller Solicitors. I am forever grateful to Mohammad Zeb and Savannah who came to me like angels along with their appointed barrister Harry Mcdonald when my son was on trial. With my son having three charges against him along with joint enterprise which included affray and violent disorder. They took the case on and from the very 1st day kept me updated with the progress and supported me throughout the case. With my son in remand and a serious injury to his face they kept him motivated and in the right frame of mind with video links. Also they were available to him even on weekends if he had any questions. Their guidance and professionalism was absolutely outstanding. Savannah was superb throughout this case. Her approach to everything made it easy for me and my family. The barrister Harry took the case on at short notice and what a outstanding approach he had. Being in court for the 1st time for my son he represented my son superbly. After arguing his defence for my son for 7 gruelling days my son was found not guilty of all charges. I can not praise Stuart Miller enough. A must go to firm if you are in a unfortunate situation and need legal help. Wish Mohammad Zeb, Savannah, Harry Mcdonald and everyone at Stuart Miller the very best for the future. A very big thank you from me and my family.

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23:14 19 Jan 24

Kiran was amazing with my case, made me feel at ease from the start, was very helpful and professional in resolving matters as quickly as possible. Would highly recommend

Real Cubano

13:03 16 Jan 24

Phil is the best ….Thank you thank you 🙏🏻…..

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19:05 10 Jan 24

Just spoke to this guy from this solicitors with a concern, And without even knowing me has listened and given me some reassurance and put my mind at rest...Thank you so much .

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20:09 05 Jan 24

They are very good Solicitors. There are 3 people I trust them very well. Small Mohammed. Luke, and Shamika Bonner, she is the best of all, and Luke is the best as well.

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19:54 19 Dec 23

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J Rowe

21:00 09 Dec 23

Thank you to Holly Lambeth and the team for my not guilty verdict at woodgreen Crown Court.

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11:13 06 Dec 23

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09:45 01 Dec 23

I just like to say a very big thank to Stuart Miller and the team but most especially Victoria, Mohammed Zebb, Kiran and the Receptionist for all their hard effort and now I'm on my way forward with getting on with my own life; Thank you so much StuartMiller and team. I've been with you people since 2012/2013 (roughly 7 years) I'll never forget them in my future career. stuartMiller are extremely kind and respectful. To all you solicitors aswell I wish you all best.Thank you.All the best.

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05:40 27 Nov 23

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20:03 23 Nov 23

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10:48 23 Nov 23

I would like to thank the team at Stuart Miller for helping me with my case, especially Kate andTasnuva, they both were dealing with my case and helped be through it and i am very happy with the outcome. also there price for fighting on my behalf was reasonable compared to another company who were charging extortion money for first consulation.

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03:12 15 Nov 23

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20:51 25 Oct 23

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06:11 19 Oct 23

If you need a criminal defence solicitor that delivers results, contact Mr Zeb. He s the best in his field. From the moment I walked into Stuart Miller Solicitor's office, I knew I was in good hands. His unmatched expertise and personalized approach ensured that my charges dropped before the hustle of reaching out to court, and I couldn't be happier with the outcome. Stuart Miller Solicitors are very good but Mr Zeb is the best. I highly recommend him and the firm to anyone facing legal challenges

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13:11 17 Oct 23

Called Stuart Miller for advice. Bobbi was more than happy to advise me and answer all questions. When i had further questions, Mohammed personally called me to answer them in full. I can not recommend Stuart Miller highly enough and they went above and beyond, in taking the time to make sure all was taken care of and all questions answered.

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20:06 12 Oct 23

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10:26 11 Oct 23

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09:59 07 Oct 23

Just want to say a big ‘Thank you’ to Iysha who has represented my daughter in the police station. Iysha remained very calm and professional during this long, painful process while maintaining good communications with the family. She has provided useful advice to my daughter and demonstrated good expertise in this complex area. We hope to continue to work with StuartMiller and secure the best outcome for my daughter.

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12:48 07 Sep 23

Unfortunately got myself in a situation where I needed legal representation. My solicitor was great, but attention needs to be drawn especially to Amirah. She well and truly went over and beyond what most people would do, to help me resolve the situation. Nothing was ever too much, in fact it was her who pushed things further than I'd have even asked her to, she really does care about not just her occupation, but the people she helps. Cannot say enough good things about her... not just good legal representation, but an actual lovely person who genuinely cares, and you don't get that very often anymore. So, thank you to Stuart Miller Solicitors in Wood Green, but definitely, more importantly, to Amirah.

Angela M

20:11 05 Sep 23

I would like to say a big thank you to Savannah Loizides. My elderly mother recently required legal assistance for a police interview as part of an investigation.Savannah was professional, caring and supportive. In the days and weeks following the police interview, Savannah has been helpful and informative answering my questions promptly.I would recommend Stuart Miller Solicitors and would not hesitate to contact them again if the need arises.

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14:38 12 Aug 23

My husband was represented by an solicitor who frequently appears on Tik TokWe had very minimal advice the service was shambolicWe had been referred to the director who saw us asap and understood the life changing dilemma he facedWe had proper legal advice and the eventual result was that my husband was found not guiltyI say this to the nation just get an appointment and speak to the teamSome of the people you see on social media are not worth itGuys this is your life . YOU HAVE ONE CHANCE GET THE TEAM AT STUART MILLERAll I can say is you will not be disappointed

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14:30 09 Aug 23

My husband an I are extremely grateful for Abu Kibla and his amazing support representing my husband under such time consuming circumstances. He was very helpful and made us feel at ease right away.We left pleasantly satisfied and would definitely recommend Abu Kibla to anyone needing representation.Thank you

Jake Elliott

11:46 02 Aug 23

Abu Kibla represented me for my second drink driving offence, and not only that I had no license or insurance. Perhaps I am exposing myself saying that but you need the context as Kibla managed to get my ban reduced from 3 years to 2.5, and only a 200 pound fine. Aside from being very professional at what he does, he's also a good guy, who has your back. He explained my situation to the judge in a clear way I wouldn't have been able to. Don't hesitate!

R M

20:05 01 Aug 23

I would like to thank everyone at Stuart miller especially to Kibla for their excellent work. At a time when things were very hard for me they helped me win my case. I hoped for total support from Stuart Miller when I instructed them, I got so much more. I would highly recommend Stuart Miller to anyone seeking for a reliable legal team. Many thanks again for everything, you were brilliant.

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08:21 29 Jul 23

Spoke to a director at 8 amIf I could give 10 stars I wouldAll my anxiety finishedThanks 👦

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13:37 28 Jul 23

Fantastic firm excellent lawyersBrilliant advocates overall THE GO TO FIRM

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13:10 28 Jul 23

Thank you for all your help I am great full fir having such a great team who considered all my issues and got me the correct result

Nathan Hallway

12:59 28 Jul 23

Id like to say Thankyou to joe and tasnuva.They really helped me out and was so kind and thoughtful throughout.

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10:28 28 Jul 23

Brilliant application by Mohammed zebAlso thank you to the team

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13:08 25 Jul 23

Contacted them, rang me back immediately gave me legal advice and said they would be there if ever needed. I can breath abit better with their advice.

Halil Su

17:49 21 Jul 23

I just wanted to say big thank you to MR MOHAMMED ZEB and FUNDA BOZKURT for helping me, I’ve know MR Zeb over 20 years. Best defence lawyer in London, I appreciate your time and efforts.Kind regardsMr Su

Mohammed Hussain

11:04 17 May 23

Excellent service from sincere highly qualified individuals who are truly motivated to help you with legal matters. I specifically want to thank Kelly Morris for her outstanding work in my case. She is an awesome lady and a fantastic legal professional who I simply cannot thank enough! Kelly I will never forget the day you called me with the good news. 10/10 service!Big thanks to Stuart Miller law firm also! I will be using this law firm if any future legal problems arise, but hopefully this will not be the case!

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19:57 19 Apr 23

One of the best solicitors in London seriously they are really helpful from the start to the end and always help you out whenever your in need,I have also referred them to ppl that I know who needed help .Thanks guys at Stuart Millers ,A 🌟

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11:55 20 Mar 23

Helped me with a Tfl charge for carrying an escooter on the LU. Managed to get them to drop the charges on the grounds of public policy and disproportionate prosecution. Responsive, efficient and cost effective. Highly recommended,

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12:54 13 Mar 23

Each and every member of staff I spoke with were very helpful, friendly and informative, every step of the journey went smoothly and relatively stress free thanks to their professionalism and human touch. Thank you so much can’t praise you enough.

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19:08 11 Mar 23

Brilliant, from start right till the end strongly recommend

Skrobana Skrobanski

14:42 09 Feb 23

Abu Kibla helped me with Cases when I was younger. My experience with him was Great. Hes A very humble and great man who in my opinion puts his heart into his work. Ive been in trouble all my life and met Many solicitors but none can compare to this man. I Would highly recommend this Company to my friends and family and I can say with confidence this is The Company you are looking for.

ozkan albay

13:31 28 Dec 22

I’m very satisfied with the way all Stuart Miller staff has dealt with me all these years. I have been with Stuart Miller for over 15 years and had no doubt trusting them with my case and friends that I’ve recommended.Thank you for your hard work and hope you guys keep it up.Ozkan Albay

Richard Mills

20:56 30 Nov 22

Massive thanks to Abu and Savannah who dealt with my case, highly professional service provided, couldn’t recommend enough.Thank you!!

Mark Askew

14:47 21 Oct 22

Many thanks to Stuart Miller Solicitors and Reem Khatib in particular. In what is a very stressful, confusing and frustrating time she was the voice that kept everything clear and erudite for everyone involved. Reem's impeccable professionalism, approachability and friendliness made every interaction pleasant and useful. Thank you so much for all your help.

Tommy

15:32 10 Oct 22

Just Wantied to say a big thank you , Reem Khatib, for representing me after 2 and a half years of my case going on and with 3 different firms.I finally found the best one, Reem represented me for around 2 years.She’s so down to earth and has so much empathy. She really helped me at my lowest point. She has a way with words and really knows how to get things done, thank u so much.barrister Ronan McCain was extremely excellent they make such a great team so happy it’s finally over.

Dragon 100

14:50 24 Aug 22

Alexis at Stuart Miller's was very helpful and helped me with every step to help me beat my case

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08:22 11 Aug 22

I really don't know where to start, but this firm is amazing. From my initial contact, then my first meeting With Mr Zeb, I knew I was going to be in good hands.I found myself in a very difficult situation in March 2019 and my case did not come to an end until July of this year. Throughout, there has always been good communication and although the outcome of my case was not looking good, I'm glad the team were honest about what to expect.I would like to thank Reem Khatib especially, who went above and beyond. I couldn't have asked for a better solicitor. Very thorough and informative and helped put my mind at ease as there were several aspects of my case that made things extremely difficult. One thing I loved about Reem was that she cared. Really, really cared, which is what you want in a situation like this. In the lead up to my sentencing hearing, Reem was abroad and still checked in with me.I was expecting a custodial sentence with a starting point of 5 years and managed to leave court with a suspended sentence/community service. This could only be down to Reem's dedication and hard work. Nobody expected this and I am very glad to have had her working on my case. As well as my Barrister, Lily, special thanks to you also. I really don't think I would have had this outcome had it not have been for you two.I am glad this is finally over and once again would like to express my heartfelt gratitude to Reem. She really fought for the best possible outcome, which I received.I will never find myself in any trouble again, but would highly recommend Stuart Miller Solicitors for anyone that may need a solicitor.Thanks againJahnel

Alexander Ioannides

15:41 28 Jun 22

thank you so much to Selina for her service and Stuart miller on my hearing after a long trial justic was truley served not guilty i recommend stuart and miller for a true brilliant result

karen kianfar

16:39 24 Jun 22

I highly recommend! A lady I spoke to called Donna was extremely helpful. Thanks again.

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16:49 11 Jun 22

I was recommended to speak to selina. I called her out of office hours to assist with a arrest.She was extremely helpful, considerate and knowledgeable regarding the incident. I could see that she had mine and my families best interests at heart as a criminal defence paralegal. I would definitely recommend her for anyone that finds themselves in a sticky situation.

Stewart Skipsey

12:58 08 Jun 22

I would like to thank everyone, especially Salina who handled my case so professionally. She was always in the office, when I needed to speak with her, always approachable and always giving me sound advice, even the lady in reception was very honest and professional, everyone at Stuart Miller solicitor's take a bow, i will always remember you all and the result you got me, a big fat not Guilty, God bless

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10:44 25 May 22

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Tkay #6

16:53 19 May 22

Stuart Miller helped me navigate through the legal process for the first time, providing excellent guidance throughout the entirety of such a stressful period. I would like to thank Selina Guler for her wonderful work in preparing my defence, as well as Joe Barlow, who were exceptionally helpful throughout the process, explaining everything that arose in detail so as to ensure I could make informed decisions throughout. My experience felt personalised, and gave me the reassurances I needed to calm my nerves, in comparison to the regular ignorant demeanour that typically comes hand in hand with law firms. I felt supported and in safe hands from my initial enquiry right through to the end.

Seven Horses

21:49 17 May 22

Phenomenal, communication was immeasurable, especially Dee, went the extra mile.

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