Judge vetoes publication of Ellie Butler ruling as it may affect any re-trial

A High Court judge’s ruling relating to the killing of six-year-old Ellie Butler cannot be made public – another judge has ruled.

Ellie’s father Ben Butler was on Tuesday convicted of murder following a trial at the Old Bailey and given a minimum 23-year jail term.

Journalists say a ruling made by Mrs Justice Eleanor King in June 2014 – following private hearings in the Family Division of the High Court in London – should now be published.

But another High Court judge – Mrs Justice Pauffley – on Wednesday decided that Mrs Justice King’s ruling must stay under wraps.

The judge said she was concerned that publication may affect any re-trial if Butler mounted an appeal.

Social services bosses at the London Borough of Sutton, who had responsibility for Ellie’s welfare, had asked Mrs Justice King to make ”findings of fact” – to help staff take decisions about the future of a younger sibling – following Ellie’s death and Butler’s arrest.

Mrs Justice King concluded that, on the balance of probabilities, Butler had been ”responsible for Ellie’s death”.

The judge said Ellie had suffered a skull fracture.

She explained: ”I am satisfied so that I am sure that Ellie died as a result of (her) father either hitting her on the back of the head with the leg of (a) child’s table, or swinging her with such violence that her head came so forcefully into contact with the table leg that the leg broke and she sustained the skull fracture from which she died.”

The judge said her decision could not be reported while criminal proceedings were on-going – in case jurors were influenced.

And her full ruling remains undisclosed.

Mrs Justice Pauffley analysed issues surrounding reporting of Mrs Justice King’s ruling at a public hearing in the Family Division of the High Court in London.

She heard arguments from lawyers representing a number of media organisations, Sutton Council and a guardian appointed to guard the younger sibling’s interests.

The judge told lawyers that there was the “strongest public interest” in Mrs Justice King’s ruling being published – providing publication did not risk de-railing criminal proceedings.

Media organisations had asked Mrs Justice Pauffley to allow the ruling – or parts of the ruling – made by Mrs Justice King to be made public.

The judge said she had analysed the case because Mrs Justice King had been promoted to the Court of Appeal – and was now Lady Justice King.

Mrs Justice Pauffley dismissed the publication application.

The judge said Butler might appeal.

She said he had shouted from the dock after being found guilty at the Old Bailey, saying he would “fight for the rest of my life” and “I am 100% not guilty”.

“All those signs give some solid indication that this criminal process is likely to extend to the making of an application for permission to appeal,” said Mrs Justice Pauffley.

“Reporting of Mrs Justice King’s judgment is likely to be very extensive …

“Would there be repercussions for the criminal trial process?”

She added: “There is potential for prejudice – for de-railing of the criminal process. The risk may be small … but the consequences for the criminal process could be incalculable.”

Barrister Jude Bunting – who represented media organisations including the Guardian, the BBC and The Daily Telegraph – had argued that Mrs Justice King’s ruling, or parts of it, could and should be published.

He said:

• No appeal had been mounted and there were no criminal proceedings which reporting could threaten.
• Journalists were aware of the risks of being in contempt of court and could be trusted.
• Jurors at any re-trial could be trusted to follow a trial judge’s instructions.
• An appeal might fail and might not lead to a re-trial.
• In any event any re-trial was not likely to be staged for a long time.

Mr Bunting told the judge that the publication of Mr Justice King’s ruling would not substantially risk prejudicing any further criminal proceedings.

He said publication, and reporting, of Mrs Justice King’s ruling would be in the public interest.

Mr Bunting indicated that his clients would try to overturn Mrs Justice Pauffley’s decision in the Court of Appeal.

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