In a couple of recent cases, the English High Court and the European Court have issued rulings underscoring the difficulties faced by those who seek judicial intervention into decisions to undertake or to continue investigations.
In March 2004, Belgian police raided the home and office of Mr Tillack, a journalist, and seized his computers and documents. The police were acting on a complaint from OLAF, the EU body responsible for investigating fraud, against whom Mr Tillack had made certain allegations.
As complainant, OLAF had the right to obtain access to the police file on Mr Tillack – including the records seized from his home and office. These records included details of his journalistic sources, including details of an OLAF 'insider' who had supplied information to him. Mr Tillack sought to protect these sources from disclosure to OLAF by raising an action against OLAF under Article 230 of the EC Treaty in the Court of First Instance seeking (a) annulment of OLAF’s decision to file its complaint with the Belgian authorities and (b) interim measures to prevent access to the file in the meantime.
Early in October, the CFI ruled that the action brought by Mr Tillack was inadmissible on the basis that the decision by OLAF to lodge its complaint with the Belgian authorities did not bring about a distinct change in his legal position. In other words, the OLAF complaint was merely a step in the process which would lead up to a decision by the Belgian authorities to release (or not) the source material. Responding to Mr Tillack's submission that this ruling would deprive him of effective judicial protection, the Court pointed out that he would be within his rights to seek a domestic review of the Belgian authorities' decision to release information to OLAF and, in the context of that review, to request a preliminary ruling from the European Court on the Community law duties of the Belgian authorities to cooperate with any OLAF request.
In this case, C (a banker) applied for judicial review in the High Court of the decisions of a chief constable to seek a search warrant (and those of a magistrates' court to issue the warrant) in respect of allegations of possession of child pornography. C also sought judicial review of the continuance of a police investigation into those charges. C contended that it was essential that the police should, as a matter of urgency, formally acknowledge that there was no case against him because apart from the personal stress that the ongoing investigation was causing, he faced acute professional and employment difficulties as he frequently had to make 'fit and proper person' returns to various regulatory authorities.
At the end of September, Underhill J dismissed the application for judicial review, giving a ruling on the question of whether the continued investigation was capable of being reviewed by the court.
He held that there was no precedent for the court intervening to close down an ongoing investigation on the basis that there was no prospect of an eventual prosecution. However, that did not mean that such relief could never be granted, just that it would only be appropriate, if at all, in the most exceptional cases. The judge envisaged significant difficulties in allowing such a review to proceed, not least in framing an appropriate remedy. The continuance of an investigation was a factual rather than a legal state of affairs; it had no formal status and until proceedings were commenced by a charge there was no public action taken. Investigations might continue at various levels of intensity and might for good reason be shelved without prejudice to the possibility of being later revived in different circumstances; investigations did not therefore necessarily have a defined conclusion. It would be highly undesirable to put the police in the position where they had to issue public declarations of innocence. In the instant case, the continued police investigation of C was reasonable and justifiable. The refusal of the police to formally close their investigation was not so inexplicable as to be characterised as irrational.
Whilst the courts – at domestic and Community level – will be prepared to provide a venue for challenging the legality of administrative acts, these cases illustrate the reluctance of the courts at both levels to permit such challenges during the preparatory or investigatory stages of administrative action.