Government House silent on absence of Supreme Court judge
The Governor has stonewalled questions about the status of a judge who was ordered to recuse herself from a case owing to a concern about bias and who has not been seen in court for months.
Multiple sources in the legal field say it is understood that Puisne Judge Nicole Stoneham, the head of the Bermuda judiciary’s matrimonial jurisdiction, has been suspended after a highly critical Court of Appeal ruling about her behaviour.
However, neither Rena Lalgie, the Governor, nor Larry Mussenden, the Chief Justice, has issued any public announcement.
A recent Family Court ruling referred to the judge as having been “out of the office to address a private matter” since July 12, with a return-to-work date “unknown at this time”.
The Royal Gazette approached Government House for comment on October 8 and has asked several times since, but nothing was forthcoming by press time.
Sources say Mrs Justice Stoneham was ordered to stop working by Ms Lalgie in July, in what may be an unprecedented situation of a judge being suspended in Bermuda.
The former magistrate, who was appointed a Supreme Court judge in 2016, deals solely with Family Court matters.
The sources believe her suspension might be linked to a Court of Appeal judgment last year that ordered her to recuse herself immediately from a continuing legal case between an unnamed couple at loggerheads over schooling arrangements for their teenage son.
The May 15, 2023 ruling was damning, finding that Mrs Justice Stoneham failed to disclose in an August 22 judgment that she intervened in December 2018 to secure the release of the father from police custody after he was arrested for an alleged breach of a domestic violence protection order, and failed to explain her connection to his family when ruling on the question of her own recusal.
Appeal Justice Dame Elizabeth Gloster wrote: “On any basis, a puisne judge’s intervention to obtain the release of a person arrested under the 1997 [Domestic Violence — Protection Orders] Act would appear to be irregular at best and unlawful at worst.”
The mother who successfully brought the appeal proceedings, after the judge refused an application to recuse herself from the matter, said she had written to Government House several times to ask how it planned to deal with Mrs Justice Stoneham’s conduct, but got no response.
“No one has said anything to me about my letters,” she told The Royal Gazette. “She [Mrs Justice Stoneham] was working for a whole year after the ruling.
“I have written to Government House maybe five times. If it [the suspension] has anything to do with me, that’s strange that they have not told me.”
Bermuda’s constitution says a judge can be removed from office only by the Governor, who must first appoint a tribunal to decide if the matter should be referred to the Judicial Committee of the Privy Council.
Once referred, the Committee of the Privy Council can advise that a judge be removed from office for inability or misbehaviour.
A spokeswoman for the Privy Council in London told the Gazette: “Our understanding is that this would have to be investigated by disciplinary tribunal in Bermuda first, and then could be referred to us for advice.
“We can confirm we have not been contacted about this and have never dealt with a case like this before.”
One source, who asked to remain anonymous, said they believed a tribunal for Mrs Justice Stoneham’s case was under way and a hearing before the judicial committee could take place before the year’s end.
“It’s all in train,” they said. The source said they had “never” heard of a judge in Bermuda being suspended and facing a disciplinary hearing in the past.
“It’s extraordinary,” they said, adding that little was known about the “complicated process” for disciplining a judge because it was so rarely used.
Another source said lawyers with cases before Mrs Justice Stoneham were told by the court that she was “on leave and the reasons are both private and confidential”.
They added: “The divorce court of the Supreme Court is managing to keep its head above water, with Supreme Court Registrar Alexandra Wheatley covering the disputed hearings.”
A further source suggested the bias accusations raised in the Court of Appeal judgment had not been investigated to date.
“If a career is derailed on inference, that’s wrong,” they said. “How do you live an entire career on [assessing] evidence, to have it undone by inference that has not been substantiated. That’s the truly horrible thing.”
The Court of Appeal judgment required Mrs Justice Stoneham to recuse herself from the case concerning the teenager and for it to be assigned to another judge.
The Gazette asked former Chief Justice Narinder Hargun in September last year if that had happened.
He said the judicial department’s longstanding policy was not to comment on individual cases, adding: “I do not believe it would be appropriate for the Chief Justice to depart from this policy in this case, other than to say that the Supreme Court will always follow and implement orders of the Court of Appeal in an individual case.
“Any additional comment in relation to this matter must come from Her Excellency The Governor, if H.E. considered it appropriate to do so.”
An application for Mrs Justice Stoneham to recuse herself from a different Family Court matter was heard on July 9 this year, according to a September 30 Supreme Court judgment from Mrs Justice Wheatley.
That judgment said a decision was reserved at the end of the hearing and Mrs Justice Stoneham went out of office three days later, leading to the matter being reassigned to the Registrar.
Along with the Governor, there was no response to a request for comment from the Chief Justice or the Registrar. The Gazette tried repeatedly to reach Mrs Justice Stoneham but was unsuccessful.
Puisne Judge Nicole Stoneham intervened to secure the release of a man from police custody after he was arrested for allegedly breaching a domestic violence protection order.
Appeal court judges obtained records from the Bermuda Police Service that showed the man was bailed on December 23, 2018 to attend plea court the next day “at the direction of Justice Stoneham”.
The Department of Public Prosecutions decided early on December 24 not to proceed with charging him, which a Court of Appeal ruling said gave “rise to some concern” about whether Mrs Justice Stoneham “had expressed any views to the relevant authorities as to the strength or weakness of the evidence allegedly supporting” the complaint by his former partner.
The DVPO had been obtained by the former partner of the man after she accused him of sexual assault. He was later cleared of that charge in Magistrates’ Court but found guilty of shoving her.
Mrs Justice Stoneham presided over a family court case brought by the woman in 2021 over child maintenance for their teenaged son.
The judge ordered the father to provide an interim payment for maintenance but an issue about which school the boy should attend remained in dispute.
The mother, aware that Mrs Justice Stoneham’s brother, Mark Clarke, a retired police inspector, was friends with her former partner’s father, asked the judge to recuse herself.
Mrs Justice Stoneham declined, writing in an August 2022 judgment that the woman’s perception of the family connections was “just that — her perception”.
She did not disclose her involvement in the man’s 2018 release from custody and did not explain what connection she had to him.
The woman complained to Government House but got nowhere, so successfully appealed the judge’s refusal to recuse herself to the Court of Appeal, with the help of lawyer Jeffrey Elkinson.
The woman said in an affirmation to the court: “I now understand that a judge's intervention in relation to a DVPO to release/bail someone from police custody is most extraordinary given the nature of my DVPO was to protect me from further domestic abuse from [the father].”
Appeal Justice Dame Elizabeth Gloster wrote in the May 2023 Court of Appeal ruling that the judge’s “failure to give any explanation as to the true extent of her connection [if any] with the father’s family, and of her participation in the release of the father on bail” provided “support for a real concern of bias”.
The appeal judge wrote: “Absent a transparent account of the extent of the connection, the objective observer is left fearing the worst.”
She added that in such circumstances the judge should have recused herself.
The mother, who cannot be named for legal reasons, told The Royal Gazette she was furious at being forced to launch the legal appeal to get the judge taken off the case, after flagging up her concerns about bias to the Governor in 2022.
“I am $30,000 out of pocket; that was borrowed money,” she said, adding that the figure would have been higher had Mr Elkinson not done much of the work for free. She said the child-maintenance issue with the father remained unresolved and accused Mrs Justice Stoneham of delaying proceedings.
The woman criticised Government House for not responding to her letters or informing her that the judge was suspended.
“I just know that I have complained to the Governor several times and I haven’t heard anything back,” she said. “The system is broken.”
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