An application for a permanent stay of criminal charges on the ground of forensic disadvantage should not be brought until all available avenues of enquiry about potentially exculpatory evidence have been exhausted. The force of a submission based on the absence of particular evidence is weakened when the applicant has not made enquiries to ascertain whether that evidence exists. In historical sexual offence cases, the death of a witness whose evidence goes only to surrounding circumstances (rather than directly to whether the offending occurred) is less likely to constitute incurable prejudice than the death of a witness who could give evidence going to a fact in issue.
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