England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		22nd June 2016

MRS. JUSTICE PAUFFLEY:

1. This is an application made on behalf of Guardian News and Media Limited, the British Broadcasting Corporation, Independent Television News, Associated Newspapers, Sky News, Times Newspapers and the Telegraph (the media) for publication of the judgment of Eleanor King J, as she then was, dated 30th June 2014. It is an application brought just the day after the convictions at the Central Criminal Court of Ben Butler and Jennie Gray resulting from the tragic death of Ellie Butler; and it is made, I would observe, with a powerful element of public interest behind it.
2. In ordinary circumstances, Eleanor King J would be confronting this application. She does not do so in circumstances where she has been elevated to the Court of Appeal and in the belief that it was most appropriate for a judge of the Division to deal with the matter.
3. The application is made on behalf of the media organisations on the basis that there is a profound public interest in reporting the story of Ellie's death, including, in particular, the history of the care proceedings relating to Ellie's younger sibling. It is said that the judgment of Eleanor King J should be published so as to ensure that the media can properly report both the story of Ellie's death and the story of the care proceedings.
4. It is unnecessary for present purposes to deal with the facts which lie behind the application. They are well-known and already in the public domain. The history, though, in relation to reporting restrictions orders is of some relevance; and I shall therefore deal in just a little detail with what has happened in so far as restriction on publication is concerned.
5. Reporting restriction orders have been in place continuously since Ellie's death. The order made by Eleanor King J on 13th March 2014 continued, and was in similar terms to, the first order made on 30th October 2013 by, I believe, Hogg J. The final hearing of C's care proceedings was listed before Eleanor King J on 9th June 2014. On 30th June at their conclusion, Eleanor King J made a care order and gave a full judgment. She found that Mr. Butler was responsible for having caused Ellie's death and that Miss Gray had failed to protect the children from him.
6. On 11th July 2014 Holman J made a further reporting restriction order in the care proceedings relating to C. On 29th July, again in 2014, Eleanor King J considered and reiterated the order of Holman J. Her order provided, materially for present purposes at paragraph 7:

"The matter shall be listed for a further hearing, on notice to any person or organisation affected by any of the restrictions above, within seven days of the verdict in the criminal proceedings in which the First and Second Respondents are defendants, before Mrs Justice Eleanor King (if available)."

7. On 8th June 2016, Moor J considered an application made by the BBC and the Guardian for the provision of copies of all orders made in the care proceedings leading to the judgments of Hogg J. There was a contest. Moor J directed that redacted orders should be released to the media. Moor J recognised the considerable public interest in the care proceedings.
8. Last week, on 13th June, the applicant media organisations applied for a revised reporting restriction order. The purpose of that was so as to relax the previous orders to permit the reporting of the fact that Ellie Butler had a younger sibling whilst still protecting C's identity.
9. The applicant conceded that the media should be provided with a lightly redacted version of the final order of Eleanor King J; and Bodey J gave permission for the redacted order to be provided to the media. Bodey J approved and agreed a revised reporting restriction order which permitted the publication of paragraph 122 of the judgment of 30th June. I am unclear as to why it was that Bodey J gave liberty to apply but he did; and it is, in part, as a result of that liberty to apply that the application comes before me today.
10. 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.
11. 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) [2014] 1 WLR 230. All of that I altogether accept.
12. 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.
13. 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.
14. 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.
15. That is where I begin to depart from Mr. Bunting in his analysis of the operative factors in play and the proper balance to be struck between the competing interests of withholding on the one hand the judgment and on the other, the public interest in allowing there to be publication.
16. Before I come on to explain my reasons for my dissent with Mr. Bunting's overall proposal it is right that I should just reflect upon the positions of the other parties.
17. The London Borough of Sutton, represented today by Mr. Dean, was initially, as was the guardian's representative, Mr. Braithwaite, in favour of their being publication of the judgment subject only to the question of redactions so as to protect C's interests. That exercise was said to be a process in which all the parties represented at this hearing could have involved themselves so as to devise a redacted version that I would then simply have approved.
18. Mr. Dean, when he heard my earlier indications as to my principled objection to the release juncture of the judgment said, and I quote, "It would be horrific if these parents were to avoid a retrial on the basis of publication at this stage". This afternoon he has brought along the results of his research into the law relating to contempt and drawn my attention to various passages within the section entitled Publications After the Trial Pending an Appeal which are of some relevance.
19. Mr. Braithwaite adopts a neutral position. He does not seek to persuade me to one course or another.
20. I should also say that the court received an email yesterday afternoon indicating that Miss Gray wanted to instruct Bill Bache of G T Stewart to represent her in opposing the application. I was asked, therefore, to adjourn this application until both parents had a chance to appoint representatives.
21. When I come to consider the appropriate outcome, I have in mind everything that has been said so very fully and relevantly by Mr. Bunting on behalf of the applicant. He produced additional written submissions over the lunch adjournment relating to the law on contempt reminding me that section 4(2) of the Contempt of Court Act 1981 provides:

"In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."

22. He took me as well to the decision of R v. Sherwood. He referred me to the three-stage assessment process outlined by Lord Judge at paragraph 13 of that decision. Mr Bunting argued that it is necessary to have regard to three matters, in particular, when assessing whether there is a substantial risk of prejudice. First, that jurors can and should be trusted to remain true to their own passionate and profound belief in and commitment to the right of a defendant to be given a fair trial; and the importance of trusting a criminal jury to comply with directions made by the trial judge.

22. Second, that broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice.
23. Third, that the 'fade factor' will apply here as it does in news cases. It is recognised that the staying power of news reports is very limited. Mr Bunting drew my attention to the very high threshold exemplified by the recent judgment of the European Court of Human Rights in Abdulla Ali v. The United Kingdom.
24. So, says Mr. Bunting, there is no jurisdiction to restrain publication on contempt grounds. The proceedings are not active, no notice of appeal has been lodged. There are, he says, no extant appeal proceedings. Even if there were, it does not follow they would succeed. The CPS is on notice of the current reporting restriction orders of Bodey J and Wilkie J and it is difficult to see, says Mr. Bunting, how the publication of King J's judgment could create a separate substantial risk of prejudice given that the press is already freely reporting Mr. Butler's conviction. Moreover, the media is already reporting the finding of Eleanor King J that Mr. Butler was responsible for Ellie's death as well as the findings of the serious case review released overnight which makes a number of critical comments about Mr. Butler's credibility, his history of lying and concealing matters from professionals.
25. Mr. Bunting urges me, in the exercise of my discretion, to release King J's judgment and revoke the section 4(2) order. He says it is wrong in law, unnecessary and wholly disproportionate.
26. 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".
27. 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.
28. 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.
29. 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.
30. 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.
31. 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.
32. It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2 [2015] 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 ...".

33. 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.
34. 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.
35. 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.