TeeJay said:Isn't there a problem ... that ongoing investigations and intelligence gathering would be compromised by fully disclosing all the evidence collected so far?
In a general inquiry would there be any clear yardstick for disclosure?
Could a presiding judge be both impartial and able to weigh up the importance of keeping ongoing investigations out of the public realm? Does this kind of issue arise in the French system of investigating judges?
The problem with prejudicing the trials of others involved would mean that it could only take place if and when those trials were concluded or appeared unlikely to ever get off the ground (at the stage where an investigator says there are no realistic lines of enquiry still being pursued). It is the main reason that little detail is being released about the evidence which has been gathered.
The problem with revealing techniques and how they came unstuck is one which the police and security services frequently hide behind, often (in my opinion) foolishly (e.g. the constant "We can't allow phone tap evidence into evidence because then people will know we do phone taps ..." refrain). The difficulties exist within criminal trials and there are procedures in place for minimising the impact whilst ensuring fairness. Those procedures could be employed in the system I propose, leaning even more towards protecting techniques as they would not be a trial and, hence, there would not be the overriding need for fairness. It would be a balance to be struck by the authorities - the public right to be told the facts versus the need to protect the public from future danger. (And don't forget, my proposed system would not just be for terrorism or even criminal events either - would be for any major incident, many of which never get anywhere near criminal charges).
An evidential standard would not be needed if there was no verdict, but if, as I suggest, "case closed" is the only outcome aimed at, I would suggest the "balance of probabilities" as the appropriate one. As for disclosure, some detailed thought (and probably some trials during a pilot phase) would be needed to establish an approriate level of detail to be released in advance - it should be sufficient, I would suggest, for someone to realise they had an issue they wished to raise, or that they had evidence with contradicted what was available.
I do not see the problems as being insurmountable, tough problems would undoubtedly arise. I think a competent judge could effectively tread the middle ground (many of the issues from current public enquiries have arisen from mixing their role as investigator and judge - investigating and judging are two very different fields with their own skills, my proposal seperates them and lets good investigators investigate and good judges judge). As for how it works in France, I do not know!