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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: 14 Jun 12 at 6:23pm
As I say, I understand that it's changing to "comfortably persuaded". 
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gordon View Drop Down
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Posts: 1037 		Post Options Post Options   Quote gordon Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 6:36pm
There is a submission working it's through ISAF to use the term "comfortable satisfaction" which apparently is a term used by CAS.

There is also talk of an obligation for MNA's to keep ISAF informedof any rule 69 reports they may receive.
Gordon
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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: 14 Jun 12 at 6:42pm
comfortable satisfaction - that's the phrase. My mistake. 

Makes me think quaffing port and cigars after a good dinner. 


Edited by Presuming Ed - 14 Jun 12 at 6:42pm
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 10:19pm
Originally posted by Presuming Ed

Originally posted by gordon

They seem to set the bar for using rule 69 very high. 

I believe that the standard of proof required under 69 is changing, from "beyond reasonable doubt" to "comfortably persuaded". 
 
And there is a proposal for the wording of the rule to be changed into a rule that a boat can break:  A boat shall not commit gross misconduct' 
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 10:23pm
Originally posted by Presuming Ed

comfortable satisfaction - that's the phrase. My mistake. 

Makes me think quaffing port and cigars after a good dinner. 
 
It's a term I believe comes from UK jurisprudence.
 
It means (roughly) that in respect of decisions that can have 'serious' consequences, like suspension from sailing, balance of probabilities at 51/49% isn't enough:  the margin has to be more 'comfortable'.  Part of the concept, as I understand it, is also that a mere arithmetical calculus of probability isn't sufficient:  the tribunal has to be satisified in their heart-of-hearts.
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jun 12 at 11:20pm
Originally posted by r2d2

is there any standard amount of time that a protest should take to be ruled on - as I have one pending from a couple of weeks ago?

At the first reasonable opportunity?
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 15 Jun 12 at 12:39am
Originally posted by Brass

Originally posted by r2d2

is there any standard amount of time that a protest should take to be ruled on - as I have one pending from a couple of weeks ago?

At the first reasonable opportunity?
Sorry, in view of your several very sensible and helpful posts in this topic, you didn't deserve that, but I couldn't help myself.
 
More than two weeks, especially if you haven't received any feedback about why there is delay, is dragging it out a bit.
 
No doubt somebody is working like a beaver (possibly a beaver on valium), to get protest committee members and both parties in one place at the same time.
 
Like many things in life, the longer you wait, the longer it takes.
 
First step, ask nicely when it will be heard.
 
Subsequent steps:  ask increasingly less nicely.
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 15 Jun 12 at 1:09am
Originally posted by gordon

The standard of proof required does not affect, directly, the level at which misconduct is considered gross enough to be dealt with by rule 69. It would seem that for many AUS judges that level is far highter than that accepted by European judges.
 
Possible reasons:
  • Australian judges don't see themselves as 'moral guardians' and are less interventionist in initiating rule 69 proceedings.
  • Australian judges and the sailing community in general hasn't been 'sensitised' to manners and 'niceness' issues by the RYA Charter, so the number of rule 69 complaints arising, whether from judges or competitors or others is smaller.
  • Australians have lower pretensions to good manners in general, and a strong disinclination to try to enforce 'manners' by official authority.


Edited by Brass - 15 Jun 12 at 1:50am
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Brass View Drop Down
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Posts: 1151 		Post Options Post Options   Quote Brass Quote  Post ReplyReply Direct Link To This Post Posted: 15 Jun 12 at 2:16am
Originally posted by gordon

There is a submission working it's through ISAF to use the term "comfortable satisfaction" which apparently is a term used by CAS.

There is also talk of an obligation for MNA's to keep ISAF informedof any rule 69 reports they may receive.
 
The relevant submissions were to the Racing Rules Committee 2011 meeting and were minuted from that meeting as follows
 
(jj) Submission 175-11 - Rule 69  Creation of Breachable Rule and Standard of Proof
Recommendation to Council: Approve with the following amendment
Proposal 1
Approve with edit of Rule 69.1(a) to read:
A competitor or boat owner shall not commit gross misconduct, including a gross breach
of a rule, good manners or sportsmanship or conduct bringing the sport into disrepute.
Proposal 2:
Approve with edit to final paragraph of rule 69.1(b) to limit reasons to conflict with
national law of the country of the event.
Proposal 3
Approve
RRC Working Party to edit all proposals for consistency between "competitors" and "boat
owner".
 
At first blush, this seems to me to create a 'protestable' breach, which, if it 'involves or is seen by a boat in the racing area' would require a flag and hail.
 
That would destroy the utility of rule 69 for getting around validity problems in gross cases.

(kk) Submission 176-11 - Rule 69 Reporting etc
Recommendation to Council: Defer
RRC is sympathetic to the proposal and request the Executive Committee to consider
resources required to implement the proposal.
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Posts: 350 		Post Options Post Options   Quote r2d2 Quote  Post ReplyReply Direct Link To This Post Posted: 15 Jun 12 at 8:35am
Originally posted by Brass

Originally posted by Brass

Originally posted by r2d2

is there any standard amount of time that a protest should take to be ruled on - as I have one pending from a couple of weeks ago?

At the first reasonable opportunity?
Sorry, in view of your several very sensible and helpful posts in this topic, you didn't deserve that, but I couldn't help myself.
 
More than two weeks, especially if you haven't received any feedback about why there is delay, is dragging it out a bit.
 
No doubt somebody is working like a beaver (possibly a beaver on valium), to get protest committee members and both parties in one place at the same time.
 
Like many things in life, the longer you wait, the longer it takes.
 
First step, ask nicely when it will be heard.
 
Subsequent steps:  ask increasingly less nicely.
no worries :-)
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