Judicial Stay of Criminal Proceedings: Protecting the Basic Right to Fairness Without a Comprehensive Constitution - an Israeli Development to a British Idea

Abstract

The basic right to a fair trial in criminal proceedings is, in many legal systems, one of the most basic constitutional rights, with a possible link to the principle of human dignity. The way to achieve it in a particular legal system might be to ensure a “favourable neighbourhood”: Constitutional law that recognizes human rights; a tradition of judicial review; an independent judicial system that is willing to scrutinize acts and decisions of Parliament and Government; and specifically in our case – to review the discretion of the prosecution, and in some cases to stay, to dismiss, the trial. This doctrine is known in the United Kingdom by the expression of “abuse of process” that justifies “Judicial Stay of Criminal Proceedings”. Israel “imported” the doctrine and has developed it uniquely. This example can examine and explain key elements in the British and Israeli legal systems. The power, which the prosecution holds, is one of the most significant powers of any administrative authority. There is, however, a difference between the judiciary stepping into prosecutors' shoes to discharge the duties that prosecutors should perform and the judiciary providing necessary supervision to prevent arbitrary and unjustifiable prosecutorial decision-making. The exercise of prosecutorial discretion calls for accountability. It became necessary, in the United Kingdom and in Israel, to allow a defendant to raise before the court arguments to justify the request to stay (actually dismiss) the trial, such as delay in the criminal justice process; breach of promise not to prosecute; loss or destruction of relevant evidence; investigative impropriety; prosecution manipulation or misuse of process or power; selective discriminatory enforcement; entrapment; prejudicial pre-trial publicity, etc. The research aims to explore the relationship between fundamental elements in Constitutional law, judicial independence and legal theory, and the doctrine.

The paper shall present a hybrid overview of the necessary elements that stay behind it. It is interesting to examine how legal systems with limited and partial constitutional “tools” handle this essential principle of protecting fairness.