PART 5
• There is an explicit right for respondents to have and advisor present and to appoint someone to act for them – it might indeed be a lawyer. When the respondent is a junior, a parent or guardian must be informed of the intended hearing, and the junior should have an adult to hand during the hearing, whether as representative or advisor.
• The protest committee may allow an observer to be present throughout the hearing, as long the observer does not interact with the process and sits out of eye contact with the competitor. Before allowing an observer to be present, the protest committee should consider any objection to this by the competitor.
• A transcription or a fair summary of the proceedings and the evidence should be kept. • The protest committee may appoint a ‘prosecutor’ to present the allegation. Presumably, that might be a person who made a report to the protest committee, whether from information received or personally observed. When the protest committee has acted under rule 69.2(c) and commissioned an investigation before deciding to call a hearing, an investigator would seem to be well-placed to be asked then to present the allegation at the hearing.
• If someone is appointed to present the allegation, the hearing moves from being inquisitorial to adversarial. A person presenting an allegation is a party, as defined, and is entitled to be present throughout the hearing, to question the respondent and to be questioned by the respondent. Other witnesses are present, as in a protest, only to give evidence, to respond to questions, but not to ask questions.
• If the competitor concedes that what is alleged is completely true, at any stage of the proceedings, it will not be necessary to hear further witnesses
• Any early statement of regret by the competitor is to be welcomed • When there is no more evidence, all parties, advisors, representatives and observers are to withdraw, and the protest committee then finds the facts and decides whether it is indeed the type of misconduct described in the original allegation.
• The standard of proof to be applied is ‘the test of the comfortable satisfaction of the protest committee, bearing in mind the seriousness of the alleged misconduct.’ This, as WS 122 explains, lies between the civil law ‘balance of probabilities’ test typically applied in a protest, and the ‘beyond reasonable doubt’ test of the criminal law – and in that band it can vary depending on the seriousness of the allegation. ‘Comfortable’ and ‘satisfaction’ are words to be ‘used in the sense generally understood in…general use’ (see Introduction: Terminology), and if the protest committee is uncomfortable, then it is not comfortably satisfied. The protest committee must be ‘comfortably satisfied’ both with the facts it finds and with its conclusion that this came within the rule’s meaning of ‘misconduct’. An example is given of a screwed-down corrector weight that is found in mid-event after-race inspection to have disappeared since pre-race inspection. A protest committee could be entitled to be ‘comfortably satisfied’ that it was removed by a crew member, even if it was not beyond reasonable doubt that some third person could have interfered with the boat when unattended and unlocked between races.
• Once the protest committee has decided what happened, then, unless the allegation is to be dismissed, the competitor can be recalled, to hear those facts, and be invited to make any observation as to whether the protest committee should warn or impose a penalty. The protest committee can ask whether the competitor has been the object of any rule 69.2 hearing in the last few years, and, if so, what the outcome was, since this may be the only way that the protest committee will get to hear of any previous warning or penalty1
. If the
respondent is indeed not a first-time offender, this is likely to steer the protest committee towards a penalty rather than a further warning. (The rule does not explain the nature or implication of a rule 69.2 warning: presumably, it is a warning that any future bad behaviour within a reasonably long period will result in a penalty.)
• Protest committees should not shy away from doing more than just issuing a warning when this is justified by the facts. This part of rule 69 studiously avoids using the term ‘penalize’ and ‘penalty’ for such actions (presumably so as not to confuse a rule 69.2 hearing with a normal protest), but they are nevertheless convenient shorthand.
• A boat can be penalized for a related competitor’s misconduct by having its score changed, with a low to high scoring penalty, or by disqualification (DSQ or DNE), in one or more races. A changed score would be appropriate for misconduct during a race, especially where the respondent is the skipper or is sailing single- handed. The ‘more races’ option might be appropriate for serious misconduct where the boat has already been penalized under rule 2, Fair Sailing in one race.
1 This is one of the weaknesses of the rule: in theory, a competitor on an ‘open’ or international circuit could get into trouble at a series of events, and accumulate a number of warnings, each new protest committee being unaware of previous warnings.
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