Ben Butler & Jennie Gray sentenced in relation to death of their...

Ben Butler & Jennie Gray sentenced in relation to death of their daughter

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Photo from the BBC

Introduction

On 21st June 2016 Ben Butler, and his partner Jennie Gray, were convicted of offences relating to the death of Ellie, their six year old daughter, who had died on 28th October 2013.

Mr Butler was sentenced to life imprisonment with a minimum term of 23 years for murder. Ms Gray was sentenced to a total of 3½ years in prison.

 

Background

Ellie Butler was born was born on 30th December 2006. At the time her father, Ben, and mother, Jennie Gray, were in a ‘casual relationship’ and living apart.

Six weeks later Ellie was at her father’s house when he noticed that Ellie “had gone “floppy and sheet white”. They rushed to hospital where she was treated and made a full recovery.

Mr Butler was charged with causing grievous bodily harm relating to this offence, he was convicted and sentenced to 18 months imprisonment.

However, this conviction was later quashed – the judgment can be read here – R v Henderson & Others [2010] EWCA Crim 1269. In essence, there is a lot of areas of dispute in relation to baby shaking cases, with a mass of complex and sometimes contradictory medical evidence.

No re-trial was ordered. However, there were family proceedings which resulted in Ellie being returned to her parents. In fact, the High Court Judge having heard from over 20 medical experts ““exonerated” Butler – going further than the Court of Appeal, which had quashed his conviction“.

After that, social workers were monitoring the family and saw no sign of abuse.

 

Ellie’s death

On 28th October 2013 Ellie suffered a massive head injury from which she unfortunately died.

It was alleged that when Ellie died Mr Butler called Ms Gray back to their home and did not call 999 for two hours. In this time they planned a ‘cover up’ relating to Ellie’s death (this is what the Perverting the Course of Justice relates to), going to some lengths to set up a scene that was consistent with Ellie’s death being an accident.

This original account seems to have unravelled, and was to be replaced with another – still saying that the death was an accident, but changing the details. This account was rejected by the jury in 2016.

Meanwhile the Family Court again got involved, and made an order in relation to Ellie’s sibling.

The High Court Judge concluded that “Ellie died as a result of the 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.

Mr Butler denied any wrong doing in relation to Ellie’s death, saying that when he found her dead he was overcome by shock. In addition, he and Ms Gray were concerned that he would be blamed for Ellie’s death given that he was previously wrongly convicted of offences relating to her.

 

Conviction

On 21st June 2016 Mr Butler was convicted of Ellie’s murder. His wife, Jennie Gray, had previously pleaded guilty to perverting the course of justice.

In addition, both were convicted of child cruelty relation to an earlier shoulder injury inflicted on Ellie.

When he was convicted, Mr Butler shouted – “I’ll fight for the rest of my life – unbelievable … I will fight forever to prove this wrong. My daughter was jumping in the house. I’m 100% not guilty.

This is a bit of a side note, but I am always surprised that there is not more of this when people are convicted. But either way, it is probably not possible to read too much into it in terms of an individual’s guilt or innocence.

 

Sentence

The only sentence for murder is life imprisonment (our factsheet on how a Judge approaches sentencing is here).

The Sentencing Remarks of Wilkie J have been published. This is, as always, vital reading. It is fair to say that he took a (perhaps understandably) dim view of Mr Butler.

He was described as “self absorbed, ill tempered, violent and domineering man who, I am satisfied, regarded your children and your partner as trophies having no role other than to fit in with your infantile and sentimentalised fantasy of family life with you as the patriarch whose every whim was to be responded to appropriately.

Mr Butler received a life sentence, with a tariff of 23 years. The Judge took a starting point of 15 years, and then increased by nearly fifty per cent to account for the aggravating features and the other offence of child cruelty (for which there was a concurrent sentence of 5 years).

There were some mitigating factors – no intention to kill, no premeditation, and the stress that he had been under for a number of years. The Judge concluded that these were far outweighed by the aggravating factors.

In relation to Ms Gray, the offences were clearly far less serious. The Judge noted that she had been convicted of the child cruelty offence and set out the factual basis for sentencing (although with reference to a document that hasn’t been published).

He also noted that Mr Butler had been physically and mentally abusive to her prior to this offending, which was mitigation, but her offending was serious, and so the Judge sentenced her to 18 months for the child cruelty, to run consecutively to the 2 years for perverting.

 

Comment

All deaths are tragic of course, but there is something particularly tragic about the death of a child.

We expect that there will be an appeal by both parents, against conviction and sentence. We don’t have enough information to say anything about the conviction.

On the face of it, the tariff of 23 years is slightly higher than we would expect, but we doubt that an appeal would succeed.

Equally, although we would have anticipated a slightly higher sentence for Ms Gray, it cannot be said that there is anything to suggest that this highly experienced Judge went wrong.

But we will keep an eye out for an appeal and come back to it if there is one.

 

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

14 COMMENTS

      • Presumably opposition to concurrent sentences comes from a desire to see them made consecutive so that the overall tariff is longer. But I’m sure the judge takes totality into account so if concurrent sentences were done away with the judge would simply impose lesser consecutive ones, to arrive at the same final tariff, so it doesn’t really make any difference. That said, I don’t really understand the point of concurrent ones – unless it’s just to give each crime it’s “own” tariff to highlight which are the more serious charges?

  1. For me this cements how those who repeat the mantra innocent until/unless proven guilty and acquittal = innocent, are complicit in allowing the guilty not only to walk away free, it allows a manipulative abuser to play the system so much so it renders them untouchable. And those who should act afraid to do so.

    Secondly, by all accounts the grandparents were vilified and when they ran out of money were unable to fund a custody battle to keep her safe. The manipulator with previous form for violence against women got legal aid (I presume).

    What is clear is Ellie could have been saved and should have been alive except that the law allowed a professional manipulator to play it.

  2. If you mean he got legal aid for this trial, of course he did and of course he should. I believe that in the case of murder it is not even means-tested.

    Acquittal certainly does not mean not guilty: it only means that the evidence was not there. But the State cannot do other than release a person acquitted by the trial court or on appeal. The family court is not bound by the acquittal: it works on the balance of probabilities. The judge there probably got it wrong, but it’s perfectly possible that Butler did not commit the earlier assault.

    On any footing this is yet another horrible, tragic case, hot on the heels of the Ayeeshia Smith case and another one this year the name of which I forget. These cases make ghastly reading for anyone with children, grandchildren, siblings’ or friends’ children or grandchildren.

  3. …tut Andrew sometimes the world isn’t black and white. I hate the phrase “grey area” because rapists always try to apply it to get away with or justify rape. Sometimes you cannot prove that someone did something but when take a step back it’s apparent what happened but it cannot be proved beyond all reasonable doubt. Surely it’s wrong to say we can’t prove it therefore you get your child back without conditions.

    As a parent my heart is sick for what little Ellie had to endure with no-one to save her. I hope she’s happy now and playing with the angels. :-((

  4. Mommie dearest appears to have been treated very lightly. Perverting the course of justice seen as her main failing by the court. She chose to have a child with someone who she was in a casual relationship with and living apart from (unless she was raped and failed to report it). I suspect she was aware of his numerous convictions. Went along with him for years on end according to the reports, even telling him she loved him from the dock.

    Does anyone know why it took more than two years to come to trial ?

  5. 1) ‘Choosing’ to have a child or becoming pregnant with someone you are in a casual relationship with and live apart from does not break any laws. (You don’t know that she didn’t take the morning after pill and it failed, this happens, but I digress).

    2) Being aware, if she was, of his previous numerous convictions does not break any laws, plus they were HIS convictions.

    3) Went along with him for years, while this was extremely ill-considered it is not unheard of in abusive controlling relationships.

    4) Telling him she loved him from the dock, also poor judgement, but not unheard of in abusive controlling relationships. Does not break any laws.

    She was convicted for perverting the course of justice and while I’ve no idea what makes a mother stay with any man (or woman) who would harm her child, unless it’s with a view to revenge, it appears on the day in question she was presented with a fait accompli and had no hand in the murder but I agree she shouldn’t have gone along with his harebrained scheme to save his own skin. If he can manipulate a judge and the courts she would have been easy fodder.

  6. She was also convicted of an offence of child cruelty for failing to get medical help after he had injured the child’s shoulder. She is obviously the less guilty of the two; whether the sentences stack up against each other none of us can really know who weren’t there to hear the evidence in full.

    Judge worthy: your remarks about her tell us more about you than about her. None of us – and I’m sure that includes you – whose internal wiring would not let us do what either of these charmers did can really understand what made her stay so along and go along so far with him.

    This poor child was unlucky in both her parents. As you say L-E-S it is heartbreaking for a parent of either gender to read of such cases.

      • Yes: for the reasons L-E-S has already set out hers was a wretched position. Yes, she is guilty, yes she had to go down and none of us can say whether the sentence was exactly right; in fact another judge might have given her (and indeed him) a bit more or a bit less

        But your remarks show a gross compassion deficit, and a complete lack of insight into how anyone, more often a woman than a man, gets into the place where she was. And that is what I meant about you, and I stand by it.

        • If the compassion tank appears empty to you perhaps it was all used up on the deceased child.

          Do you think Ben Butler was in a “wretched position” ? If so, you have not said. Am I showing a lack of compassion for Mr Butler ? You do not say.

          Let’s move on to Jennie Gray’s position. Gray was a divorcee when she met Butler. Eight weeks later, she was pregnant with Ellie. My previous comment was highlighting her lifestyle CHOICES. All those fish in the sea and she CHOSE Butler whose background, according to the reports, was known to her. She CHOSE, literally, to jump into bed with him and, presumably, CHOSE to get pregnant. She CHOSE to continue with the pregnancy after the couple had gone their separate ways. After Ellie was born, Gray CHOSE to welcome Butler back to the family home. Weeks later Ellie was rushed to hospital with brain injuries.

          As L-E-S quickly pointed out the CHOICES of Gray that I originally focused on were not breaking any laws. Indeed, most of today’s lifestyle choices are not illegal (and are often legislated for).

          During the early years of Ellie’s life, during which Butler was suspected and convicted of injuring her, Gray made the CHOICE of being the breadwinner and CHOSE to leave her daughter with Butler.

          She then CHOSE to become Butler’s corner man in his successful battle to overturn his conviction. When the family court awarded custody of Ellie in 2012 it would have been to the mother of the child not Butler. Gray made the CHOICE of being instrumental in taking Ellie away from her grandparents and put her at the mercy of Butler. Not only that but to also leave her alone with Butler as Gray made the CHOICE of being a breadwinner again.

          It seems the CPS do not lack my own compassion as they do not appear to have charged Gray with benefit fraud. It has been reported she CHOSE to claim £10,000 in benefits illegally during this period of breadwinning.

          Unless she is very unfortunate with her contraception methods Gray also CHOSE to become pregnant with Butler’s help on two further occasions. The first was taken into care because of Butler’s conviction despite Gray CHOOSING to lie and insist Butler had nothing to do with it. Gray made the (legislated for) CHOICE to terminate the third pregnancy.

          “I really do want U more than anything I ever wanted, even my kids x” was a message Gray CHOSE to send to Butler.

          On the evidence presented to me, I have reached the conclusion that Gray’s position resulted from her own CHOICES. Unfortunately a third party (a term intentionally lacking compassion) was involved in those CHOICES.

          • Immaculate conception and or absence of condoms absolving Ben of any responsibility for the child that he CHOSE to father.

  7. L-E-S It is not usually worth arguing with the mentality of the Daily Hate Mail. it’s like wresting with a pig: the animal will enjoy it and you’ll get crap all over you.

    I have to say, thought, that charging her with benefit fraud (for which she would have got a short and concurrent sentence) would have been like charging Sutcliffe with having stolen or was it false number-plates: it would have devalued the real charge.

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