The novelty of the bill is to establish the principle of fairness of the process and the principles of justice as an integral part of the criminal process, alongside the main purpose of criminal proceedings, which is to bring criminals to justice. This defense incorporates into criminal law the principles of due process and the rights of the accused, including his constitutional rights. Although the test set out in the law is similar to the test set in the Borowitz case, there is significance in anchoring the defense of justice in an explicit provision inthe Criminal Procedure Law, which is mainly about the manner of prosecution (for more on the various proposals that have been raised for the enactment of the section and the analysis of the tests according to which it should be analyzed, see: Segal and Zamir, Protection from Justice in the Law, ibid., at p. 233; See also: Sanjaro, Doing Justice).
In Criminal Appeal 5672/05 Tagger in Tax Appeal v. State of Israel [published in Nevo] (2007), which was ruled after the defense from justice was anchored in legislation, the court analyzed the defense from justice before and after the enactment of the law, and noted that "many libels" were prepared for the interpretation given to this section in the case law (ibid., in paragraph 111 of the judgment). In Criminal Appeal 371/06 Anonymous v. State of Israel [published in Nevo] (2008), the Honorable Justice H. Melcer noted that the tests set in the Borowitz case would be a starting point, but emphasized that the legislature had instructed in the enactment of the section to include principles of justice and fairness in the criminal proceeding (in his words, in paragraph 1 of his judgment):
"[The protection from justice] is certainly expected to be further developed in the future. These will lead to the fact that the values of justice and legal fairness will accompany – now at the command of the legislature – the conduct of the criminal proceedings (including with regard to the decision regarding the filing of an indictment), so that there will be no material contradiction (and not only one that is 'sharp' and 'eye-poking') between the aforementioned principles and the need for prosecution and the conduct of the trial."