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Standard of Proof?
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Presuming Ed View Drop Down
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Posts: 641 		Post Options Post Options   Quote Presuming Ed Quote  Post ReplyReply Direct Link To This Post Topic: Standard of Proof?
    Posted: 18 Jun 12 at 10:53pm
doh. RTQ. Advisory =/ arbitration. 

Advisory hearing is just the RYA formalising a chat in the pub. "No, you shouldn't have done that. Had you been protested, you probably would have lost the protest".

4. The adviser asks questions and announces the outcome. If the facts are clear, the adviser uses the rule book to explain the rules that apply, and whether a rule was broken. If a rule was broken, and a boat accepts this, she should consider accepting an Exoneration Penalty if it is available for the rule considered broken, or otherwise consider retiring. She is not obliged to do this.
1 However, when an exoneration penalty is accepted,
(a) Neither the boat nor a protest committee may then revoke or remove the penalty.
(b) The boat shall not be penalised further in a protest hearing when the protest committee decides that it was appropriate to the facts found and the applicable rules.

5. If the facts are not clear, the adviser will try to advise how the rules would apply to possible variations of the facts.
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 12 at 10:15pm
Originally posted by Presuming Ed

Originally posted by Brass

I'm not sure where a RYA Advisory Hearing goes if the Rules Advisor gets cold feet:  it think it just dissolves with nothing decided.

He bails out and moves to a full protest hearing. Full details of the advisory  hearing/arbitration/protest structure are here: 



Advisory Hearing
Use this if you just want to learn whether you were in the right or wrong.

Arbitration
Use this if you want the dispute resolved quickly and simply.  This is not as formal as a Protest Hearing and the potential penalty is not as damaging to a boat's score.

Full protest: 
Use this if the dispute is complex, or if there has been injury or serious damage, or if you feel an exoneration penalty would be inappropriate. 
 
Fine, but see the table:  you can get to an Advisory Hearing without there being a valid protest.
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Presuming Ed View Drop Down
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Posts: 641 		Post Options Post Options   Quote Presuming Ed Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 12 at 2:45pm
Originally posted by Brass

I'm not sure where a RYA Advisory Hearing goes if the Rules Advisor gets cold feet:  it think it just dissolves with nothing decided.

He bails out and moves to a full protest hearing. Full details of the advisory  hearing/arbitration/protest structure are here: 



Advisory Hearing
Use this if you just want to learn whether you were in the right or wrong.

Arbitration
Use this if you want the dispute resolved quickly and simply.  This is not as formal as a Protest Hearing and the potential penalty is not as damaging to a boat's score.

Full protest: 
Use this if the dispute is complex, or if there has been injury or serious damage, or if you feel an exoneration penalty would be inappropriate. 


Edited by Presuming Ed - 18 Jun 12 at 2:51pm
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sargesail View Drop Down
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Posts: 1459 		Post Options Post Options   Quote sargesail Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 12 at 1:00pm
And my whole experience of arbitrators (2 from 2 actual) and 2 more that I've discussed rules with, has been that they were the type who couldn't possibly be wrong ever!  Bit like me Wink
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 12 at 12:14pm
Originally posted by Presuming Ed

Originally posted by JimC

  If you have few protests, because most disagreements are sorted out on the water, then those you have are likely to involve strong feelings, and most likely be complicated. Then your potential arbitrators get little experience, and are more likley to go astray than someone who conducts these things regularly. I for one wouldn't be confident to run things on my own without a couple of others to assist if some kind of faulty logic sends me down the wrong path.

Try an email/call to your regional rules advisor. There's a goodly amount of experience there to call on - e.g., Chris Simon, the Thames Valley advisor, is an AC umpire and current VOR umpire/judge. Peter Johnson in the north is chief umpire at the Wilson Trophy. Etc. 

 
Looks like generally very good advice. 
 
But I think what Jim is saying is that he's quite happy deciding protests on a committee with a couple of other experienced sailors at the club, but he would not be comfortable going solo as an arbitrator.
 
People like Jim, who have a wholesome nervousness about exceeding their capabilities are not a problem for arbitration:  an arbitrator can and should call off the arbitration and send the protest to the protest committee the instant he or she thinks the evidence or the rules application are too difficult.  The people I worry about are those who want to be an Arbitrator and are convinced that they could not possibly be wrong ever.
 
I'm not sure where a RYA Advisory Hearing goes if the Rules Advisor gets cold feet:  it think it just dissolves with nothing decided.


Edited by Brass - 18 Jun 12 at 12:14pm
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Presuming Ed View Drop Down
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Posts: 641 		Post Options Post Options   Quote Presuming Ed Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 12 at 10:13am
Originally posted by JimC

  If you have few protests, because most disagreements are sorted out on the water, then those you have are likely to involve strong feelings, and most likely be complicated. Then your potential arbitrators get little experience, and are more likley to go astray than someone who conducts these things regularly. I for one wouldn't be confident to run things on my own without a couple of others to assist if some kind of faulty logic sends me down the wrong path.

Try an email/call to your regional rules advisor. There's a goodly amount of experience there to call on - e.g., Chris Simon, the Thames Valley advisor, is an AC umpire and current VOR umpire/judge. Peter Johnson in the north is chief umpire at the Wilson Trophy. Etc. 
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Posts: 6661 		Post Options Post Options   Quote JimC Quote  Post ReplyReply Direct Link To This Post Posted: 16 Jun 12 at 10:32am
Originally posted by Brass

Caution:  I always fear that you don't have a knowledgeable judge with good people skills, to act as Advisor/Arbitrator, these single person methods can go seriously astray and cause more dissatisfaction than they help.

Agreed, and there'sa large element of catch 22. If you have few protests, because most disagreements are sorted out on the water, then those you have are likely to involve strong feelings, and most likely be complicated. Then your potential arbitrators get little experience, and are more likley to go astray than someone who conducts these things regularly. I for one wouldn't be confident to run things on my own without a couple of others to assist if some kind of faulty logic sends me down the wrong path.
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Posts: 1037 		Post Options Post Options   Quote gordon Quote  Post ReplyReply Direct Link To This Post Posted: 16 Jun 12 at 8:29am
At the risk of repeating myself "comfortable satisfaction" is the standard set by the Court of Arbitration in Sport - which is the court of ultimate appeal for our sport.

IMHO the change in terminology changes nothing - merely that we can now refer to an internationally accepted standard that applies (or will apply)  to all sports.
Gordon
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 16 Jun 12 at 4:32am
Originally posted by ohFFsake

 
Originally posted by Brass

It probably cannot be defined at all:  just like 'reasonable doubt' cannot be defined.
Actually, UK law defines this quite tightly via the "Wednesbury" test.

In short, something is considered unreasonable if no reasonable person could ever have arrived at this opinion. When you think that through carefully it's actually a very good test as it invites the judge to consider a variety of other opinions, not just his own.

http://en.wikipedia.org/wiki/Wednesbury_unreasonableness
I don't want to split hairs, but I will <g>.  We're getting into some quite abstruse legal stuff here.
 
The concept or 'test' of Wedensbury unreasonableness, with which I am tolerably familiar, is not a definition.
 
It also does not refer to standards of proof, it refers to standards of reasonableness in government administrative decisions.  Let me quote the first paragraph of the headnote of the wiki that you cited:
 
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] 1 KB 223[1] is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review. This special sense is accordingly known as Wednesbury unreasonableness.
 
If you think that it helps you understand what 'reasonable' means, good luck to you, but I would be very cautious about applying it to sailing rules or protests. 
 
Originally posted by ohFFsake

"Comfortable Satisfaction" to me seems not only more vague, but also more open to abuse, as "reasonableness" or even fairness  are no longer considerations.
 
If it is adopted, the RYA will undoubtedly produce some of its usual excellent guidance, so I don't think it will be necessary to struggle too much with how it works.
 
It may be that the concept is firmly established in other European countries (the rules submissions were made by the Danes).
Originally posted by ohFFsake

For example, if you had witnessed someone breaking the rules on 10 occasions, then a somewhat shakily evidenced 11th occasion were brought to a hearing, one might feel "Comfortably Satisfied" to see them punished, even though it is eminently possible that a reasonable person might have had doubts over the standard of evidence in that particular case....
 
You're bundling too much up together in your example.
 
A standard of proof (if indeed 'comfortable satisfaction' can be properly described as that) does not apply to one's emotional satisfaction with an outcome.
 
The standard of proof has to applied to each of the assertions that needs to be proved, one by one, for example:
  • what tack was A on?
  • what tack was B on?
  • Did B change course to avoid A?
  • and so on

So when the protest committee is satisfied to the prescribed standard, Balance of probabilities, 'comfortably satisfied', whatever, that each ingredient is proved, then they may conclude that a certain rule has been broken and decide to penalise a boat.

It's nothing to do with whether the protest committee or anyone else is 'satisfied' with the decision.
Originally posted by ohFFsake

Seems like a backwards step to me...
I'm not sure whether you are saying that shifting the rule 69 standard from beyond reasonable doubt to comfortable satisfaction is backward because it diminishes the standard, or because the new standard is less clear than the old one.
 
If your concern is about diminishing the standard, I really can't say one way or the other:  we really won' t know until we see some cases decided.
 
As to the clarity issue, as I said above, if it comes in, I am sure that the RYA will issue good guidance.
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Posts: 219 		Post Options Post Options   Quote ohFFsake Quote  Post ReplyReply Direct Link To This Post Posted: 16 Jun 12 at 2:03am
 
Originally posted by Brass

It probably cannot be defined at all:  just like 'reasonable doubt' cannot be defined.
Actually, UK law defines this quite tightly via the "Wednesbury" test.

In short, something is considered unreasonable if no reasonable person could ever have arrived at this opinion. When you think that through carefully it's actually a very good test as it invites the judge to consider a variety of other opinions, not just his own.

http://en.wikipedia.org/wiki/Wednesbury_unreasonableness

"Comfortable Satisfaction" to me seems not only more vague, but also more open to abuse, as "reasonableness" or even fairness  are no longer considerations.

For example, if you had witnessed someone breaking the rules on 10 occasions, then a somewhat shakily evidenced 11th occasion were brought to a hearing, one might feel "Comfortably Satisfied" to see them punished, even though it is eminently possible that a reasonable person might have had doubts over the standard of evidence in that particular case.

Seems like a backwards step to me...
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