Where a key prosecution witness has a history of non-compliance with subpoenas but is now subject to strict bail conditions with daily reporting and police supervision, the assumption that the witness will not attend for pre-recording of evidence is speculative rather than probable, and delay attributable to the witness's prior non-attendance does not of itself establish exceptional circumstances. The absence of unacceptable risk under s 4E(1)(a), while an important consideration in the exceptional circumstances analysis, is insufficient in combination with moderate delay and a prosecution case that is not weak to establish exceptional circumstances for a Schedule 1 offence.
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