Sentences with phrase «auld lj»

Auld LJ referred specifically to Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489, where the House of Lords held equally that «in general, the police, when investigating suspected crimes, had no duty of care to victims or witnesses in respect of their activities».

Auld LJ did not concur with the submissions of Mrs Lawrence that the Court of Appeal should try to develop the common law incrementally and in an evolutionary way by recognising such a duty of care to not only children but parents too «by those publicly responsible for the safety and well - being of children when investigating and / or taking steps to avert the risk of parental abuse», and that the House of Lords majority judgment in East Berkshire was «too narrowly based».

Auld LJ stated it was implicit in the House of Lords» majority in East Berkshire that, in cases of child abuse within the family, the Convention «had contributed to the development of a duty in common law to the child, but not to the parent».

Auld LJ, therefore, is in no doubt, that the presence of such potential for conflict in suspected parental child abuse cases, and the risk thereby of harm and the gravity of that harm to children «are such that doctors and social workers should not be hampered in the exercise of that duty by a sense of caution flowing from the imposition of a countervailing duty of care to parents».

The answer, Auld LJ said, was «a resounding «No»».

For Auld LJ, there were two «knock - out» arguments against a narrowing of the prohibition: - the impossibility of identifying a boundary between party political matters and other matters of public importance and controversy; and - he contended, it would not have been «a principled or logical distinction to limit the prohibition to... election periods,» if airtime could be bought outside them (para 80).

Auld LJ referred to Lord Phillips in East Berkshire, who said that UK courts must under HRA 1998, s 2 (1) have regard to Convention case law, if relevant to proceedings under HRA 1998, and asked, «can there, in these circumstances, be any justification for preserving a rule that no duty of care is owed in negligence because it is not fair, just and reasonable to impose such a duty?»

Auld LJ points out the important difference between the Art 8 right to respect for family life and the putative right of a claimant at common law to a duty of care:

Although the weighing exercise set out by Auld LJ essentially accords with Huang, it was still surprising to see exceptionality being used as part of a legal test.

Also, Auld LJ pointed out that the decisions of the European Court of Human Rights «indicated a plain acceptance in principle that interference with family life in this context», to preserve the interests of safety and welfare of children when parents were suspected of abusing them, «may be regarded, as being in pursuance of a legitimate aim, proportionate and necessary in a democratic society», as per Art 8 (2) of the Convention.

Auld LJ's conclusions:

Hence in R v. Secretary of State for Transport ex p Factortame Ltd Auld LJ said that: [194]