Court of Appeal allows publication of judgment in Ellie Butler case
The Court of Appeal has allowed publication of a family court judgment concerning the sibling of Ellie Butler, the child whose father was in June convicted of her murder after she was returned to her parents by the family court in 2012.
Seven national media outlets had applied to see a 2014 ruling on care proceedings for the sibling, referred to as C.
But this had been refused by Mrs Justice Paulfrey, who said such publication could prejudice any appeal that might be made by Ellie’s father Ben Butler against his murder conviction.
She held that his right to a fair trial under Article 6 of the European Convention on Human Rights outweighed the public interest in open justice and the applicants’ rights to freedom of expression under Article 10 of the convention.
But Dyson LJ said Paulfrey J had been wrong in how she weighed the potential effects of publication on an appeal that had not yet been lodged and might not be made.
He said: “In a case such as the present where the convicted person has not been given permission to appeal and a retrial is no more than a speculative possibility, the court should usually give little weight to the Article 6 rights of a person seeking to oppose the publication of private proceedings.”
The Master of the Rolls said that in balancing Mr Butler’s right to a far trial against the media’s rights to report: “I am in no doubt that the judge reached the wrong conclusion.
“If she had made a proper assessment of the risk that there would be a violation of Mr Butler’s right to a fair trial, she would have been bound to conclude that the risk was minimal and was plainly outweighed by the countervailing considerations.”
He added: “Even if there is a retrial, there is no real possibility that the publication of the judgment will prejudice the rights of Mr Butler to a fair trial.”
London Borough of Sutton social services was represented at the hearing but declared itself neutral on publication of the 2014 ruling though concerned to protect C’s interests.
Mark Smulian
