JUDICIAL STAY OF CRIMINAL PROCEEDINGS: AN ISRAELI DEVELOPMENT TO A BRITISH DOCTRINE

Abstract

The right to a fair trial in criminal proceedings is one of the most basic constitutional rights. The way to achieve it is to ensure a “favourable neighbourhood” for this right i.e., constitutional law that recognises human rights, the tradition of judicial review, and a judicial system capable of scrutinising decisions of the Government. The last condition is specifically related to the capacity of a judicial system to review the prosecution’s discretionary decisions and to stay or dismiss the proceedings when necessary. In the United Kingdom, the doctrine is known as the “judicial stay of criminal proceedings and is justified by the concept of “abuse of process”. Israel “imported” the doctrine and has developed it in its own way. The prosecution’s power is among the most far-reaching powers of administrative authorities. The need to restrain it asked for a mechanism, set in legislation or in case law, which would balance the goal of efficient enforcement of law and order with the preservation of fundamental values, including fairness, equality, and due process, to prevent distortion of justice. It became necessary to allow a defendant to raise arguments justifying the request to stay the trial, such as: delay in the criminal justice process; breach of promise not to prosecute; loss or destruction of evidence; investigative impropriety; prosecution’s manipulative practices or misuse of process or power; selective and discriminatory enforcement; entrapment; prejudicial pre-trial publicity, etc. How do legal systems with limited and partial constitutional “tools” handle this essential principle of protecting fairness?