In the Issacharov case, the court referred to the accepted reasoning given for the invalidation of a confession under section 12, namely the denial of the interrogee's freedom of choice, which raises concerns about the veracity of the confession, and noted that today, in the spirit of the Basic Law, the protection of the interrogee's freedom of will constitutes an independent purpose and a significant reason for invalidating the confession under section 12 of the Evidence Ordinance.
Thus it was held: "... Whereas in the past the justification given for the invalidation of a confession under section 12 was based on the assumption that the denial of the interrogee's freedom of choice necessarily raises a concern about the veracity of his confession, in the spirit and inspiration of the Basic Law, it should be determined that the protection of the interrogee's freedom of will currently constitutes a purpose in its own right and constitutes a significant and independent reason for invalidating the admissibility of the confession under section 12 of the Evidence Ordinance" (ibid., paragraph 34).
The second track is the track based on the jurisprudential doctrine for the invalidation of evidence obtained illegally in the criminal proceeding, as outlined by the court in the Issacharov case. In accordance with the doctrine, the court has discretion to disqualify the admissibility of criminal evidence if it finds that the evidence was obtained unlawfully and its acceptance would substantially impair the defendant's right to a fair trial that is not within the scope of the limitation clause.
This discretion will be exercised within the framework of a balancing formula, taking into account the circumstances of each case on its own merits, and in accordance with the criteria referred to by the Supreme Court in the Issacharov case: "The nature and severity of the illegality involved in obtaining the evidence; the extent to which the improper means of investigation had an effect on the evidence obtained; The damage versus the social benefit involved in its disqualification."