The same test for a permanent stay of criminal proceedings applies whether the proceedings are a special hearing under s 19 of the Mental Health (Forensic Provisions) Act 1990 or an ordinary trial. Uncontested expert evidence that allegations are based on recovered memory — universally regarded by psychiatrists as forensically unreliable — combined with demonstrated prejudice from loss of evidence due to the passage of time and absence of independent corroboration, can discharge the heavy onus for a permanent stay. A primary judge errs by focusing on the inherent unfairness of the special hearing procedure rather than the specific circumstances of the applicant's case.
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