Abstract
Under British law, the court has the inherent authority to set aside an indictment which, under the circumstances of the case, constitutes ‘abuse’ of the defendant. This unwritten rule had been accepted also by Israeli courts, and then came a completely new, not to say surprising, Act in 2007. The Israeli Parliament (the Knesset) has thereby recognised a preliminary argument which exploits concepts of ‘justice’ and ‘legal fairness’, and the granting of pro-discretion to the court, which may decide whether or not it is fitting and proper to conduct the trial against the defendant. How has the court reacted to that? As I will try to emphasise, judicial review upon prosecutorial discretion is rare, just a drop in the bucket, and the court is quite reluctant to implement the new tool.
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