Pauffley WRONG

Judge wrong to bar publication of Ellie Butler ruling

Lord Dyson says reporting will not impact on any potential retrial after application by Guardian and other media organisations

Ben Butler was jailed for life for the murder of his daughter Ellie
 Ben Butler was jailed for life for the murder of his daughter Ellie. Photograph: Ken McKay/Rex/Shutterstock

A high court judge was wrong to bar publication of a behind-closed-doors ruling relating to the murder of six-year-old Ellie Butler on the grounds that her father might appeal against his conviction.

Lord Dyson, the master of the rolls and the second most senior judge in England and Wales, said on Friday that Mrs Justice Pauffley had “reached the wrong conclusion” when deciding that the ruling, made in the family court in 2014, should stay under wraps.

After Ben Butler was jailed for life, the Guardian and six other media organisations – the BBC, ITN, the Times, the Daily Mail, Press Association and the Daily Telegraph – applied to see the ruling.

Ellie had been killed in a brutal assault 11 months after another high court judge had ordered that she and a younger sibling were reunited with Butler and his partner, Jennie Gray, who had lost custody of Ellie when she was seven weeks old.

The ruling, sought by the media, was made by Mrs Justice Eleanor King after a private hearing in the family division of the high court in summer 2014, after Ellie had died but before Butler was convicted of her murder.

But Pauffley, who also sits in the family division of the high court, rejected the media organisations’ application, saying King’s ruling would be extensively reported because of the high-profile nature of the case.

She told those present in court that she had read on the BBC website that Butler had shouted from the dock that he would appeal against his conviction and she was “troubled” by the impact of any reporting on a potential retrial.

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Appealing against her ruling, the Guardian and others argued that media reporting laws limit reporting to active cases. Butler had not been granted permission to appeal and any potential trial could be years away, said barrister Jude Bunting.

The three court of appeal judges have now overruled Pauffley’s conclusion.

Lord Dyson, who headed the appeal panel and is the head of civil justice in England and Wales, said there was “no real possibility” that publication would prejudice Butler’s right to a fair retrial. “(Pauffley) reached the wrong conclusion,” Lord Dyson said in a written judgment.

“Even if there is a retrial, there is no real possibility that the publication of the [King ruling] will prejudice the rights of Mr Butler to a fair trial.”

He added: “[Pauffley] acknowledged that, in the event of a retrial, the risk of prejudice to its fairness occasioned by the publication of the (King ruling) was ‘small’. In my view, it was so negligible that it should have been given little or no weight.”

The other two appeal judges, Lord Justice McFarlane and Lord Justice Burnett, agreed. The King ruling is expected to be released to the media on Friday.

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