Way way back a thousand days ago before Brexit, in a time when the tragedies of individual lives seemed to matter, Ben Butler was convicted of the murder of his daughter Ellie. It was a massive news story that has been swallowed up like everything else by the referendum result. When that storm passes, it will still be important and the public interest in the story being told will be just as great as it was before the vote.
But it isn’t Brexit that has stopped me blogging about it before now. It is the lack of information about what may and may not be reported which has effectively prevented me from writing an explanatory post for The Transparency Project, and from offering you a few thoughts of my own. And this is, in itself, something I feel I ought to write about.
So here is the story of why I’ve been unable until now to write about such an important and heartbreaking case (I was on Radio 4 earlier this week but had to be very circumspect about what I covered). You tell me once you’ve read this post if you think our justice system is managing to make transparency a reality. I think it’s a shambles.
After the verdict reports began to appear : emotional accounts from the grandfather, who has survived both his late wife and murdered granddaughter, and whose account of his graphic warnings to the judge that she would have “blood on her hands” have been a significant motif in the emerging media narrative. Accounts from individuals involved in the Serious Case Review, selective citation from the Serious Case Review – all tending to point the finger at the judge, sometimes at the independent social work agency she granted permission to be instructed. There is criticism that Mrs Justice Hogg refused to participate in the SCR, the grandfather calls for a public inquiry – he wants it all to come out, the story of why social workers and the judge, the judge, the judge failed his family.
So I’ve seen the judgments of Mrs Justice Hogg from 2012. There are two of them. I’ve read the first one before – it was widely read in legal circles when published, and passages in it are often relied upon as a reminder to judges asked to make findings of inflicted injury of the limits of medical and scientific knowledge. It is reported in the law reports. But these two judgments were removed from BAILII where they were initially freely available in unanonymised form, to avoid prejudicing the criminal trial. Well, the criminal trial is over and the clamour to know how this could have happened is understandably great. But still the judgments have not been republished. And still the public are dependent on the perspective of the participants in the SCR and the grandfather, and the selective reporting of the press.
The judiciary will have known this verdict was coming, and that it was due. They will have known that in a case where a judge has positively exonerated a father once convicted of seriously harming his child of the matters that led to his conviction, and where that same child has then suffered fatal injuries only months after being returned to his care there will be questions and concern – and questions of huge public importance at that. They will have had plenty of time to prepare a strategy, a response. Plenty of time to anonymise or redact judgments so that they could be republished and read and referred to, plenty of time to prepare a press statement or summary perhaps explaining the (sound) constitutional reasons for not participating in a serious case review, to nominate a point of contact to deal with enquiries.
Earlier this week I tweeted my frustration at the @judiciaryuk twitter account that the judgments had not gone back up. To give credit to the Judicial Press Office they emailed me in reply and provided me with a copy of the two judgments, provided a link to the court of appeal judgment (the appeal against conviction) that remains online, and a copy of a recently made reporting restriction order (for anyone thinking of doing the same I suspect they would not dish these out to anyone, but only those with a journalistic purpose who was demonstrably aware of how reporting restrictions work and the importance of them). The nice man at the Press Office told me
We have been supplying them to media on request for some time but don’t intend to publish because there is now a reporting restriction.
I thought at this stage that this proactive response was good (although I’d have preferred simple publication of the judgments) – but this it turns out was the high point.
The judgments both offer a standard rubric :
This judgment is being handed down in private on 12 October 2012. It consists of x pages and has been signed and dated by the judge. The Judge hereby gives leave for it to be reported.
What is the significance of the removal from BAILII? Is there an order preventing the republication of the judgments or the contents of them? The reporting restriction order I was sent prohibits publication of certain details contained in those judgments but the vast majority of them does not appear to be covered by the restriction, and there were specific parts of the judgments that have – inexplicably to my mind – just not been reported. I wondered if there were some broader order that was prohibiting this publication and so I set about trying to obtain clarification from my contact in the Judicial Press Officer who had provided me with the original information.
So I asked : are there any other reporting restriction orders? The one I had, referred to an order in the criminal court – did it still apply and what did it say? I knew that there were recent reports of a refusal by Mrs Justice Pauffley to release a 2014 judgment of Mrs Justice King (as she then was) in connection with the family, because of (it was reported) the risk of prejudicing any retrial if Ben Butler were to successfully appeal (I know, seems ridiculous but there we are) – was there a reporting restriction order I needed to be aware of from that hearing?
The reply contained a (fair) reminder that the Press Office could not give legal advice on the meaning of the RRO that I had been provided with (this arose from the phrasing of my request). The Press Office, I was told, get sent some orders and judgments – but this was all they had. This seems rather ad hoc, but the court is the repository of full information, he said. Superficially the suggestion I should contact the court seems easy – but in fact it is difficult to know which court, or which office, or which HCJ Associate should be approached – particularly when one judge has retired and another seems to have had more recent involvement but I don’t know if another RRO has been applied for or granted, and I don’t know when or by whom. So I went back to the Press Office again – who should I contact? I was given an address at the RCJ and an email address.
Again I explained I was a practising lawyer who understood the importance of adhering to court orders. Again I asked to be told what RROs may be in place so I could be sure I did not breach them when reporting this case on behalf of The Transparency Project. Again I asked for links to any judgments in relation to RRO applications or the RROs themselves if they were on the judiciary website (as they sometimes are, impossible to find due to the poor search functionality). Here is the reply :
Dear Lucy Reed, Please make an application to the court regarding your request, this will be forwarded to a high court judge for consideration. Many thanks High Court of the Family Division
It was at least more prompt than the 5 day response time promised in the auto reply.
Dear Sir / Madam, Thank you for your reply. I wonder if there is some confusion - I am not seeking to vary any order or applying to report anything I currently cannot. I am asking for information about what the court has already prohibited from being published. If I am to ensure I do not breach an order I will need to know what is in it. I have also asked for a copy of the 2014 judgment for information purposes and of any existing judgment that deals with the making or refusal of RROs. I appreciate that these may be in a separate category, but are you able to provide a copy of any reporting restriction orders please? It seems very onerous to expect a member of the public to have to pay a court fee and make a formal application simply to find out what may lawfully be reported. Many thanks Lucy Reed
Another reply came :
Dear Lucy Reed, All family proceedings are confidential, unless you are a party in the matter we can not disclose any information to yourself. This is why we propose to you make an application to seek the information you require. Regards High Court of the Family Division
Indeed they are confidential. Except that in this case the judgments have previously been published yet are now removed without public explanation. And except that in this case there was in 2012 on exoneration a vast amount of material in print and broadcast media, the parents going on daytime TV shows to tell about the “miscarriage” that had befallen them. Except that since the conviction of Ben Butler and Jennie Gray there has been an avalanche of information, speculation, allegation and emergent finger pointing. But no judgments. And no judicial engagement or explanation. And a few bizarre reports of a separate judgment from 2014 from which the press are desperate to report, but from which a single passage may be reported. So, with respect to the nameless person from the High Court who sent me these emails – what meaning does this generic mantra about confidentiality have? Computer ses no.
The situation is this : the press know what is in those judgments. I can tell you now they haven’t told you all of it (that’s for another post). Maybe they don’t understand those judgments, maybe they choose to select out the bits that don’t fit their narrative. But the public don’t have those judgments to check. And people like me who want to report without the narrative or the imperative of “newsworthiness” cannot do so without paying a fee of £200 odd to apply to the court. What about the self employed journalist or the blogging citizen journalist – I’ve seen two instances of inadvertent breaches of the reporting restriction order this week (which have now been remedied only because I pointed them out) – but how are responsible bloggers to know what is and is not prohibited? Pay a fee to find out if an order ties our hands and our tongues?
What sort of transparency is this?
I can write this post with confidence now not because I’ve got an answer from the court, but because a kind person at the Press Association who I trust, has told me what reporting restriction orders are and are not in place. As it happens the only RRO in place is the one I’ve got. But the Judicial Press Office didn’t know that (or declined to confirm it) and the High Court wouldn’t tell me unless I stumped up. I was ready to make that application on Monday to make a point, but this is not a good use of my time or that of a High Court Judge. Had I not happened to have a contact (and many bloggers would not have such contacts) I would have been forced to do so or to give up without reporting.
I could have, I suppose, used publicly available information about the identity of the advocates previously involved in this case to make enquiries of them as to whether they could help – but ultimately isn’t this the responsibility of the judiciary? The President’s Guidance on Transparency requires judgments concerning reporting restrictions to be published unless there are compelling reasons. That hasn’t happened in this case, and although there may be compelling reasons, based on the contents of the RRO I’ve seen (which I can’t divulge without defeating the purpose of the order) I don’t see it myself.
If the judiciary are to adopt (as I think they should) the position that constitutional reasons prohibit their participation in Serious Case Reviews they have to make a better fist of transparency than this – they make the judiciary an easy target of criticism, warranted or otherwise in a febrile atmosphere where professionals and families are looking for somewhere to lay the blame. There are good arguments in this particular case not just for the publication of (appropriately redacted) substantive and RRO judgments, but also for the release of key case documents like the various iterations of the threshold documents, opening and closing submissions, possibly even medical reports. The judgment is the authoritative record of the judicial process – and it is the articulation of its justification. It is what legitimises this private process. If judges cannot speak publicly about their cases without undermining the integrity of judgments then in cases of this sort there should be consideration of showing the records of what underpinned the decision once made.
And from a human point of view. Somewhere there is a retired High Court Judge who may have got this case wrong, or who may have made the right decision on the evidence at the time (or perhaps a bit of both) – but who is almost certainly feeling pretty awful right now. Her judgment is her account of why she did what she did. It is not Mrs Justice Hogg, now retired, who has embargoed her judgments, and whilst she is easily criticised her account, for better or for worse, is missing or at any rate incomplete, chopped up and served to us in snippets that serve the purpose of the person telling us how it was from their perspective. Read both of the judgments in full and then make your mind up. You may still feel she is to blame, you may not. But you will at least be basing your decision on evidence.
Tomorrow, if I have time, I will write the substantive post and highlight some of those things that I think the press coverage to date has missed or distorted. It will not be a complete account but it will I hope redress the balance somewhat and provide information so far missing from the debate. I will try and write a general explainer for the case too, on The Transparency Project. A useful summary in the meantime can be found here.