Case Summary and Outcome

The U.K. Court of Appeal reversed a decision by the Family Court to dismiss the applications of various media organizations to release for publication a judgment relating to the care proceedings of Child C, whom the Court had held to have been the victim of physical and emotional abuse at the hands of her father who was found guilty of the murder of C’s older sister. The Court of Appeal instead held that the publication of a judgment in care proceedings should not be delayed in order to protect any potential appeal by C’s father against his conviction for the murder of C’s elder sibling and allowed for a redacted version of the fact-finding judgment to be published. The Court reasoned that, because the jury would be directed not to take any account of prejudicial material and media organizations could be trusted to behave responsibly and that it would be many months before any retrial would take place, the risk of prejudice to the fairness of any retrial was negligible and should have been given little or no weight in the balancing exercise.

Facts

C was the younger sister of Ellie Butler, who was murdered by her father, Ben Butler. In 2014 the Family Court found that Butler had caused Ellie’s death, that Ellie’s mother (Jennie Gray) had failed to protect her from Butler, and that C had been the victim of physical and emotional abuse.

The family court proceedings and judgment were subject to certain reporting restrictions to protect the identity of C and to ensure a fair trial of the parents in their criminal proceedings. Following Butler’s criminal conviction in June 2016, media organizations then sought the release of the judgment but the application was dismissed by the Family Court on the grounds that there was a possibility that the release of the judgment might prejudice Butler’s right to a fair retrial.

The media organizations appealed this decision and at issue before the Court of Appeal in the case, referred to as, “C (A Child)”, was the tension between freedom of expression under Article 10 of the ECHR and the right to a fair trial under Article 6.

Decision Overview

The Master of the Rolls (Sir Terence Etherton) delivered the judgment with which Lord Justice Burnett and Lord Justice McFarlane agreed.

The Court allowed the appeal and granted permission for a redacted version of the fact-finding judgment to be published. It was held that the risk to a possible retrial was so negligible it ought to have been given little or no weight by the Family Court especially when taking into consideration the important public interest in scrutinizing the work of the Family Court. The Court went further, “even if there were a retrial of Mr Butler, his article 6 rights would not outweigh the article 10 rights of the applicants”.

The Court found that the Family Court judge had failed to take into account (i) the fact that the jury would be directed to ignore anything they read or heard outside the trial and that it should and would be trusted to follow the directions given by the trial judge; (ii) the fact that broadcasting and newspaper editors should be trusted to behave responsibly; and (iii) that it would be many months and possibly more than a year before a retrial would take place (the fade factor). The Court said that had she done so, the Family Court judge would have concluded that the judgment could enter the public domain.