Court judgments and the Ellie Butler case

The Court of Appeal recently ordered the release of a court judgment in proceedings relating to the sibling of Ellie Butler. David Hart QC looks at its reasoning.

The ruling in C (a child) [2016] EWCA Civ 798 is the most recent in the long series of legal steps touching on the violent career of Ben Butler, recently convicted of the murder of his daughter, Ellie. 

Butler was convicted for Grievous Bodily Harm, and then cleared on appeal. Care proceedings were commenced at the end of which Ellie was ordered to be returned to her parents by Hogg J in October 2012. A year later, on 28 October 2013, Ellie was found dead.

C, the subject of this appeal, is Ellie’s younger sister. In June 2014, Eleanor King J, in the family courts, found that Butler had caused Ellie’s death, Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and C had been the victim of physical and emotional abuse. This judgment had been the subject of reporting restrictions.

Immediately after Butler’s conviction in June 2016, media organisations applied for the release of Eleanor King J’s judgment to Pauffley J in the family court. Pauffley J dismissed this application. Her decision was roundly reversed in this decision of the Court of Appeal.

The human rights clash is the familiar one of freedom of expression under Article 10 versus the right to a fair trial under Article 6 ECHR.

Pauffley J dismissed the application because of the possibility that the release of the judgment might prejudice Butler’s right to a fair (re-)trial. She was ruling the day after his murder conviction, and it was being said that he would be seeking permission to appeal to the Court of Appeal Criminal Division (CACD).

The CA decided that the court had the power under its inherent jurisdiction to order the continued retention of the judgment, despite the fact that there were no active criminal proceedings within the meaning of the Contempt of Court Act 1981 because they been terminated. It also held that Article 6 was potentially in play even though there were no current proceedings. But those rulings did not prescribe how the power to retain or release the judgment should be exercised.

Its conclusion (contrary to the views of Pauffley J) was that little weight should be given to Butler’s Article 6 rights in those circumstances. Butler would only be standing trial again if the CACD set aside his conviction and ordered a re-trial. There was no analysis of the likelihood of this outcome – unsurprising because Butler had done no more than say that he wanted to appeal. So the Court held that at best there was a speculative possibility of this.

But the CA’s central conclusion was that the chance of prejudice of such a trial was so negligible that it should have been given little or no weight in the balancing exercise.

On prejudice, it held that

"The judge failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) the fade factor (it would be many months and possibly more than a year before a retrial would take place)."

Hence, it ruled that if the judge had properly taken these factors into account, she would have been bound to conclude that the judgment should be put into the public domain.

In doing so, it founded on Strasbourg cases (such as Beggs v. UK) where virulent press campaigns had been held not to prejudice fair trials.

Hence, and subject to specific redactions necessary to protect the interests of C, the judgment should be released.

Conclusion

I cannot help thinking that the CA showed a touching faith in (i) the efficacy of a direction that a jury should ignore the press/internet when trying a case and (ii) the responsibility of the press when handling such an explosively newsworthy story, were Butler to be tried again. Nor is the internet subject to the fade factor applicable to print journalists – after a few Googling seconds I could find as much press coverage as I wanted on Butler and Gray over the last few years, and much of it strongly prejudicial.

I quite understand the strong policy reasons for not allowing criminal appeals on the grounds that the right to a fair trial had been impaired by grossly prejudicial press coverage. But I am not sure this can be read directly over to the current situation, where any problem could be avoided altogether by not releasing the judgment until Butler’s potential appeal had been determined. That is not to say that I disagree with the outcome – a convicted defendant cannot simply hold up press disclosures by saying that he wants to appeal.

David Hart QC is a barrister at 1 Crown Office Row. He can be contacted by email. This article first appeared on the set's UK Human Rights Blog.