The Solicitors Disciplinary Tribunal (SDT) refused to disclose the witness statements of three young women who gave evidence of sexual misconduct by City lawyer Oliver Bretherton to journalists, it has emerged.
The SDT said releasing the statements, along with those of the former Gowling WLG solicitor and his wife, “would only advance salacious reporting with the purpose of satisfying the prurient public interest as opposed to open justice”.
Earlier this month, Mr Bretherton was found to have committed multiple rule breaches, with the tribunal yet to consider mitigation, sanction and costs.
The first nine days of the hearing took place in early March, during which four non-party applications for disclosure were made by three journalists – from the Daily Mail, news agency Central News and LexisNexis’s Law360 – and a solicitor, Tim Bullimore, who takes a close interest in the operation of the SDT.
In a separate ruling on the applications, the SDT agreed to release redacted versions of the ‘rule 12 statement’ and schedules, which set out the allegations and facts relied on by the Solicitors Regulation Authority (SRA).
The tribunal said the rule 12 statement had been read at the hearing in the opening submissions, and its content was “already in the public domain”, and the details contained in the schedules had been put to Mr Bretherton “in lengthy cross-examination”.
However, Person A, an apprentice, and Person B, a trainee, objected to disclosure of their witness statements. Person C, another apprentice, and Mrs Bretherton did not respond when contacted by the tribunal.
Mr Bretherton “primarily opposed” the disclosure of all the documents sought, but said if any of them were released they should be redacted to avoid identification and the “sexually graphic details” removed.
The SRA did not oppose the disclosure of any of the documents, subject to redactions to avoid identification.
The tribunal said that open justice had been served in that the entire hearing so far had been heard in public, with remote access allowing an “unlimited amount of observers to attend”. On “any given day” there were up to 57 observers.
Restrictions were in place in the form of an anonymity order in respect of Persons A, B and C and reporting restrictions to safeguard against their identification.
Aged between 18 and 23, they were considered to be vulnerable witnesses by the SDT and protected by screens at the hearing. For those who followed the hearing remotely, they were not visible.
The tribunal described the evidence before it as “deeply personal and highly sensitive” and, if disclosed unredacted or at all, it “had the potential to violate the witnesses’ rights under the European Convention on Human Rights”.
In accordance with tribunal policy, the views of the witnesses needed to be sought, and it would have been “irregular and improper” to ask them about this before they had finished giving evidence. “Significant redactions” would need to be considered – Mr Bretherton’s witness statement and exhibits alone ran to 238 pages.
The SDT said each witness was “cross-examined at length in open court” and the public and press were able to follow the contentious issues.
“The tribunal considered that disclosure of the witness statements would only advance salacious reporting with the purpose of satisfying the prurient public interest as opposed to open justice.”
On Mr Bretherton’s witness statement, the SDT said the solicitor was “cross-examined extensively in open court”.
There was evidence in the statement which was not heard in open session, “a vast amount of which was sensitive and would require a disproportionate amount of redaction in compliance with the anonymity order”.
The tribunal determined that the article 8 privacy rights of Mr Bretherton and Persons A, B and C, together with the “disproportionate amount of tribunal resources required to redact those statements”, justified derogation from the fundamental principle of open justice.
The evidence contained in Mrs Bretherton’s witness statement “predominantly related to the impact of the allegations on her family, which was protected by article 8”.