High Court refuses permission to publish Ben Butler judgment

Mrs Justice Pauffley has refused to permit the publication of a 2014 judgment concerning the death of six-year-old Ellie Butler, on the grounds that releasing the document could prejudice a potential retrial. The child’s father, Ben Butler, was convicted of her murder and jailed for life last week.

Ben Butler, who had a history of domestic violence, inflicted severe head injuries on his daughter Ellie which resulted in her death in October 2013. Ellie’s mother, Jennie Gray, has since admitted perverting the course of justice staging a 999 call during which she performed CPR, despite knowing that her daughter had been dead for two hours. Gray was sentenced to 42 months imprisonment for child cruelty over a shoulder injury.

In the wake of Butler’s conviction, seven media outlets including The Guardian applied for access to the full judgment, claiming that “it was in the public interest to know the full background to the murder of a child.” The judgment, handed down privately in the Family Division by Mrs Justice King in June 2014, ruled that Butler killed Ellie.

At the time, Mrs Justice King laid down reporting restrictions which prohibited the press from accessing the full judgment. Thus, the press were obliged to seek permission for its publication from Mrs Justice Pauffley. Pauffley cited Butler’s behaviour in the dock a cause for concern. Upon hearing the verdict, Butler reportedly shouted “I’ll fight for the rest of my life – unbelievable…I want to be sentenced now so I can fight in the Appeal Court.”

Pauffley ruled that this “expression of views, albeit in the heat of the moment immediately after the verdict, gives a solid indication this criminal process is likely to extend to the making of an application for permission to appeal or a submission should be made that this conviction should be overturned”.

However, counsel for the media Jude Bunting argued that, as there were no future proceedings scheduled, “there was no risk of substantial prejudice by the press under the Contempt of Court Act 1981”. He further stated that “there was public interest in the background to the horrific murder and open justice was a central plank of democracy

As The Guardian notes, this comes at a time when “the family courts are under pressure to open up”, and Pauffley’s ruling “could be seen as yet another barrier to reporting family court proceedings when they are linked to criminal court trials.”

The push for greater transparency within the family courts is nothing new. In 2014, the Daily Mail declared “victory on secret courts”, in response to new rules laid down by President of the Family Division Sir James Munby that “judgments in the family courts and the Court of Protection must always be publicised unless there are ‘compelling reasons’ why not.”

Comments made by Ellie’s maternal grandfather, Neal Gray, further reinforce the need for open justice. Calling for a public inquiry, Mr Gray declared “the family courts system has got to be changed radically. Somebody has got to stand up and make sure no other child gets hurt like my granddaughter got hurt.”

Ellie was placed in the care of Mr Gray, alongside his late wife Linda, in 2007 after scans revealed that the six week-old infant had suffered serious injuries whilst being looked after by her father. In 2009, Butler was convicted of grievous bodily harm, but this was overturned by the court of appeal the next year. Less than a year before her death, Ellie was returned to her parents in 2012 despite Mr Gray’s efforts to legally adopt the child.