Secrecy surrounding ruling over Ellie Butler’s murder to be reviewed

The second most senior judge in England and Wales has been asked to decide whether a family court judge’s behind-closed-doors ruling relating to the murder of six-year-old Ellie Butler should be made public.

Lord Dyson, the Master of the Rolls and the head of civil justice in England and Wales, will head a panel of senior judges scheduled to analyse issues surrounding publication of the ruling at a Court of Appeal hearing in London on Friday.

The ruling was made by Mrs Justice Eleanor King following a private hearing in the Family Division of High Court in the summer of 2014 – after Ellie had died but before her father, Ben Butler, had been convicted of murder.

Another family court judge has decided that Mrs Justice King’s ruling should not be published in case reporting prejudices any re-trial if Butler mounts an appeal.

Mrs Justice Pauffley, who is based in the Family Division of the High Court, last month rejected an application from several media organisations who argued that publication of Mrs Justice King’s ruling would be in the public interest in the wake of Butler’s conviction.

Editors have now challenged Mrs Justice Pauffley’s decision and are preparing to ask Lord Dyson, Lord Justice McFarlane and Lord Justice Burnett to allow publication at Friday’s appeal court hearing.

In June, following a trial at the Old Bailey, Butler was convicted of murdering Ellie and given a minimum 23-year jail term. Ellie’s mother, Jennie Gray, was given a 42-month term after being found guilty of child cruelty – and admitting perverting the course of justice.

A number of family court judges – including two High Court judges based in the Family Division of the High Court in London – had overseen private hearings about Ellie.

The little girl had been placed in the care of her grandparents after Butler was accused of shaking her when she was a baby.

But she was returned to the care of Butler – and her mother – following a ruling by Mrs Justice Hogg in 2012.

Mrs Justice King analysed issues in 2014 following Ellie’s death.

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.

Mrs Justice King, who is now a Court of Appeal judge, concluded that, on the balance of probabilities, Butler had been ”responsible for Ellie’s death”. The judge said the little girl had suffered a skull fracture.

But her full ruling has not been revealed.

Mrs Justice Pauffley forecast that Mrs Justice King’s ruling would make make ”front page news” if published.

The judge said arguments in favour of Mrs Justice King’s ruling being published were ”powerful and strong”.

But she said publication was likely to generate ”very extensive” reporting – and said she had decided that it should remain under wraps if there was ”any potential for a re-trial”.

”All the signs are that the criminal processes involving Ben Butler are not yet over,” said Mrs Justice Pauffley in her ruling on the media organisations’ application for publication of Mrs Justice King’s judgment.

”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’.”

Mrs Justice Pauffley added: ”The reporting of Mrs Justice King’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.”

The judge said she was ”fully aware” of the extent of public interest in the circumstances of the case.

She said she accepted that family courts had been placed under a ”spotlight”.

But she said while there was ”any potential for a retrial” Mrs Justice King’s ruling should not be published.

Editors from the Guardian, Daily Mail, Telegraph and Times newspapers plus bosses from the BBC, ITN and Sky News had applied for Mrs Justice King’s judgment to be released.

They had been represented at a hearing before Mrs Justice Pauffley – in the Family Division of the High Court in London in June – by barrister Jade Bunting.

Barrister Jacob Dean had represented the London Borough of Sutton.

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