This was the request of the Press to be able to have access to material from the family Courts relating to Ellie Butler, Ben Butler and Jennie Gray and to be able to report it. They made the application following the conviction of Mr Butler for murder and the conviction of Ms Gray (having pleaded guilty) to lesser counts
London Borough of Sutton v Gray and Others 2016
It is worth noting that at the start of the hearing, the Local Authority and Guardian were in support of release of materials and publication (subject to some minor redactions for anonymity) but during the course of the hearing became concerned, as the Judge was, that publication might result, if an appeal were lodged, in a mistrial claim for any criminal re-hearing
[Despite everyone’s desire for transparency and information and a proper public debate, I think all of us can agree that we would not want Mr Butler to be freed on a technicality – as opposed to convincing a fresh jury of his innocence]
The Press application was put in this way
- A number of principles are, as Mr Bunting suggests, applicable. Open justice is at the heart of our system of justice and vital to the rule of law. It promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law for better or for worse. There is a particular need, I altogether accept, for the media to act as a public watchdog in care proceedings in the Family Court because of the intrusion or potential intrusion into the family lives of those concerned and what could be a serious interference by the state in family life.
- Accordingly, while there is no presumption in favour of open justice, in private proceedings concerning the welfare of children there is a fundamental need for the press to play a scrutiny role in family proceedings. That is a matter enshrined within the President’s Practice Guidance (Family Courts: Transparency)  1 WLR 230. All of that I altogether accept.
- The foundation of the jurisdiction to restrain publicity in a case such as this is derived from rights enshrined within the European Convention on Human Rights. A balancing exercise is required between competing rights. The balancing exercise as between Articles 8 and 10 has been addressed in a number of authorities; they are well described within paragraph 17 of the application. There is no need for me to read them into this judgment. I accept Mr Bunting’s analysis.
- It is suggested that the proceedings before Eleanor King J are of the utmost public interest. There should therefore be, it is said, a strong presumption in favour of publication. There is an important public interest in the press being able to follow and understand those proceedings for the reasons described by Mr. Bunting; and there is a profound public interest in the press being able to investigate and, as necessary, report the varying approaches of the Family Court to the care proceedings relating to Mr. Butler and Miss Gray. These care proceedings, it is said, and I accept, place the Family Court under a particular spotlight and cry out for public exploration.
- Mr. Bunting then goes on to say that in so far as the judgment and order of 30th June 2014 have been withheld from the press to protect against injustice in the criminal proceedings, this justification falls away upon the verdict given yesterday at the Old Bailey by the jury.
The Judge, Mrs Justice Pauffley, was rightly concerned with the prospect of an appeal being lodged and if successful it being argued that disclosure of material which a jury would not ordinarily see being used as a technical argument for that Mr Butler could not get a fair trial at any such re-hearing.
- My starting point is the President’s guidance of 16 January 2014 – ‘Transparency in the Family Courts: Publication of Judgments’ and particularly paragraph 19 where he makes clear that in deciding whether and, if so, when to publish a judgment, a judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention, particularly Article 6, respect for private and family life, Article 8 and Article 10 freedom of expression. The guidance then, materially, continues thus, “And the effect of publication upon any current or potential criminal proceedings”.
- All the signs are that the criminal processes involving Ben Butler are not yet over. Yesterday, as is reported on the BBC website, after the guilty verdict, Mr. Butler shouted out, “I’ll fight for the rest of my life. Unbelievable” before adding, “I want to be sentenced now so I can fight in the appeal court”. He added, “I’ll fight for ever to prove this wrong. My daughter was jumping in the house. I am 100% not guilty.” Miss Gray added, “Big mistake. Spend another ten years proving you wrong”. Those expressions of view, albeit uttered in the heat of the moment and immediately after the verdict, give some solid indication that the criminal proceedings are likely to extend to the making of an application for permission to appeal and to a submission that his conviction should be overturned.
- The reporting of King J’s judgment, were I to give permission to release it to the media, is likely to be very extensive indeed. It will be, if I am able to forecast anything, front page news. I am fully aware of the extent of public interest in the circumstances of this case, the background, the extent to which the Family Court has been involved as well as to the many legal processes leading to yesterday’s verdict.
- It is instructive, to my mind, to recall the manner in which there was reporting of the very sad circumstances of Khyra Ishaq’s pitiful life and terrible death in the aftermath of her mother’s conviction for causing that child’s death in about February 2010. There was, in the immediate aftermath of the criminal trial widespread front page, very prominent and extensive references to the judgment given many months, even perhaps years, previously by Eleanor King J.
- There is a very high likelihood, indeed it is inevitable, in my assessment, that there would be the most widespread and extensive reporting of the content of King J’s judgment in this instance. Would there be repercussions for the criminal appeal’s process? Mr. Bunting invites me to significantly doubt that there would be prejudice. He says there is a long way to go before any retrial. It is unclear as to whether one would be ordered. There may be a slender prospect, he argues, and it may be in the distant future and it is insufficient to outweigh the public interest in favour of publication.
- I would suppose that three options exist for the appeal which Ben Butler made clear yesterday he is intent on pursuing: firstly, that it is dismissed; second, that it is allowed and the conviction quashed; and, third, that the appeal is allowed to the extent that a retrial is ordered. I have no means of forecasting, no one has any means of predicting with any degree of accuracy, or at all, what will happen in connection with the proposed appeal. If there is any potential for a retrial then it seems to me that for exactly the same reasons as underpinned the decision of Eleanor King J not to release her judgment in 2014, I must do likewise.
- It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2  EWHC 2630 when he said, albeit in a slightly different context:
“In the age of the Internet, … today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms …”.
- We are, I would observe, in a very different environment to that which existed even ten years ago. There is the potential for prejudice to, even the derailing of, the criminal process. That, to my mind, is manifest. The risk may be, as Mr. Bunting suggests, small but the consequences for the criminal process could be incalculable.
- One scenario, quite obviously, is that Mr. Butler might seek to argue that consequent upon the publicity accompanying the publication of Eleanor King J’s judgment, which is bound to contain a great deal more material than is currently in the public domain, he could not be assured of a fair trial. That possibility, the potential for that eventuality, inevitably compels me to dismiss this application.
- One thing though should emerge and be made abundantly clear. The arguments in favour of the release of King J’s judgment are powerful and strong. They will remain so. I fully expect that so soon as the criminal appeals’ process is at an end a full, suitably redacted version of the 30th June 2014 judgment will be published. That is my judgment.
Unless an appeal is brought on fresh evidence, a criminal appeal must be lodged within 28 days of conviction (if appealing against conviction) or 28 days of sentence (if appealing on sentence), so the appeal window expires at the end of July. If Mr Butler does not lodge such an appeal, I would expect the Press to revive their request to see the judgments and to be able to publish stories that provide detail from them. If an appeal IS lodged, then the publication and release of the material will have to wait until that appeal runs its course, which could be many months.
Frustrating, particularly given how much material came into the public domain after conviction (for example Mr Butler’s previous convictions, which a jury would not normally see or hear about) but absolutely nobody would want this case to be determined on a technicality. If Mr Butler does appeal and gets a re-hearing, it must be decided on the facts of the case and its merits, not by a technicality.