The test of "intolerable conduct of the authority" was later expanded in case law, and it was argued that there are other cases, even though they do not amount to "intolerable conduct of the authority," that still justify the protection of justice to the defendant. In this spirit, it was held in criminal appeal 4855/02 State of Israel v. Borowitz, IsrSC 59(6) 776 (hereinafter: "the Borowitz Judgment") that the court will recognize the applicability of protection from justice where "... It will not be possible to guarantee the defendant a fair trial, or that the conduct of the criminal proceeding will substantially harm the sense of justice and fairness," as it is perceived by the court.
Parallel to this approach, which expands the Yefet rule slightly and establishes a test of "real harm to the sense of justice", the court continued to emphasize the necessity of a balance, and that not every act lost on the part of the investigating or accusing authority will justify the conclusion that the indictment should be dismissed on the grounds of "protection from justice". The cancellation of a criminal proceeding on the grounds of "protection from justice" is perceived as an extreme measure, which the court does not need except in the most exceptional cases.
In the Borowitz judgment, it was held that the court must identify the flaws that occurred in the proceedings taken in the defendant's case, and determine their intensity, regardless of the question of his guilt or innocence. In the second stage, the court must examine whether the existence of the criminal proceeding, despite the flaws, constitutes a severe violation of the sense of justice and fairness. At this stage, the court is required to strike a balance between the various interests, while considering the concrete circumstances of the proceeding before it. The more serious the offense, the greater the weight of the public interest in prosecution, and the more scandalous the act of the offense and the more severe its harm to the defendant and his rights, the greater the weight of the public interest in safeguarding the rights of the accused. In the third stage, when the court is convinced that the existence of the proceeding does indeed involve severe harm to the sense of justice and fairness, it must examine whether it is not possible to remedy the defects that were discovered, by more moderate and proportionate means than the cancellation of the indictment.