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Court of Appeal orders judge to recuse herself in divorce case

A judge is in the dock after taking steps to secure the release of a family friend from police custody — despite having no authority to do so.

Puisne Judge Nicole Stoneham, who oversees divorce cases in the Civil Court, was also criticised by Court of Appeal judges for failing to recuse herself from a subsequent divorce case involving the same family friend.

The senior judges found that Mrs Justice Stoneham’s “intervention to obtain the release of a person arrested … would appear to be irregular at best and unlawful at worst”.

They questioned why Mrs Justice Stoneham later refused to step down from the divorce hearing between the couple, despite requests from a lawyer representing the wife that she do so.

The case centres on a long-running dispute between the couple ― who have not been named ― and schooling arrangements for their teenage son.

The mother, a police officer, obtained a domestic violence protection order against her former husband in September 2018 ― after they had separated ― claiming that he had sexually assaulted her.

That order was allegedly breached by the husband three months later, and he was arrested and held in police custody on December 23.

According to the mother, Mrs Justice Stoneham, who knew the husband through her brother, a former police inspector, was instrumental in obtaining his release before he could appear before a magistrate.

At a hearing last August, Jeffrey Elkinson, representing the mother, argued that Mrs Justice Stoneham should recuse herself on the grounds that there was an appearance of bias because of her “connection” with the father.

That request was rejected by Mrs Justice Stoneham, who argued that “the mother's perception must not be confused with the fair-minded and informed observer, having considered the facts, 'connections' and the issue before the court in the context of Bermuda's geography, population size, cultural and social history”.

In a subsequent affidavit filed with the Court of Appeal seeking to have Mrs Justice Stoneham removed from divorce proceedings, the mother pointed out that her former husband's father was a close friend of Mrs Justice Stoneham's brother.

She wrote in part: "I am aware that Mrs Justice Stoneham released [the father] on bail to attend plea court on December 24, 2018. 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]."

Court questions why DPP dismissed woman’s complaint ‘so speedily’

The Department of Public Prosecutions also came under fire from the Court of Appeal for failing to pursue a complaint by the woman against her former husband.

In its ruling, the court questioned why prosecutors were so quick to drop a claim by the woman that her former husband had breached a domestic violence protection order.

According to information submitted to the court by Darrin Simons, the Commissioner of Police, the woman had claimed that her former husband breached the order on the evening of Friday, December 21, 2018.

He was arrested two days later, on Sunday evening, but was released less than four hours later — “on instructions of Puisne Judge Stoneham” — and ordered to attend Plea Court the following morning.

A file of evidence compiled by the investigating officer was sent to a police inspector “for his perusal and comments” at 3.30am on Monday, December 24.

The file, containing a summary of evidence, the complainant's statement, charge sheet and consent order, was then forwarded on to the DPP office via e-mail.

According to Mr Simons, senior Crown counsel Nicole Smith replied at 7.11am, “stating that the DPP's office is not proceeding with this matter due to insufficient evidence to conclude that [the father] breached any specific term of the consent order”.

Assessing that aspect of the case, Dame Elizabeth Gloster said: “The circumstances in which Crown counsel informed the police, in the early hours of Monday, December 24, 2018, stating that the DPP's office was ‘not proceeding with this matter’ also gives rise to some concern.

“It seems to me — without deciding the matter, since we have not received submissions in relation thereto — that it is highly questionable whether in such circumstances it was open to the DPP unilaterally to take the decision not to proceed with an alleged breach of a DVPO by the father, without actually bringing him before the court in compliance with the procedure under the 1997 Act.

“That would have given the mother an opportunity to present her evidence supporting the complaint, which in the event she was denied.

“The scheme of the 1997 Act, and the fact that DVPO orders are made inter parties between the complainant and respondent, strongly suggests that that is the correct approach.

“All this might well have raised questions in the mind of a fair-minded and informed observer as to: (i) why the DPP had so speedily decided not to proceed with the alleged breach against the father nor to require him to attend court, and (ii) whether Stoneham herself had expressed any views to the relevant authorities as to the strength or weakness of the evidence allegedly supporting the mother’s complaint.”

The mother also claimed that Mrs Justice Stoneham “offered no patience and was short and abrupt at the first hearing”, and had “attempted to circumvent the trial process by hoping to dispose of this matter in a nonconventional and unconstitutional manner through ruling on a blind report”.

She said: "I believe that it would have been appropriate for Mrs Justice Stoneham to recuse herself from having conduct of this matter. I believe, in no uncertain terms, that any innocent bystander observing would also agree that in the circumstances explained above … they too would conclude that there is an appearance of bias.”

In a ruling handed down recently, the Court of Appeal agreed.

In an 18-page judgment, Dame Elizabeth Gloster said that Mrs Justice Stoneham’s conduct had been “unsatisfactory”.

Dame Elizabeth wrote in part: “In any basis, a puisne judge’s intervention to obtain the release of a person arrested under the 1997 Act would appear to be irregular at best and unlawful at worst.

“Because we have not had any submissions on the issue to the contrary, whether from the father or from the judge, I refrain from reaching any conclusion on that matter.

“It would appear that Stoneham had no jurisdiction or power to direct the release of the father on bail to appear before the Magistrates’ Court the following day.

“Mr Elkinson, upon being asked by this court, informed us that, as far as his researches showed, there was no power in a puisne judge to exercise the powers of a magistrate, whether under the constitution or otherwise. In any event, the 1997 Act is mandatory in that it requires the arrested person actually to be brought before the court.

“Presumably this is to enable the beneficiary of the domestic violence protection order, who has complained to the police about the alleged breach, to attend court.

“In this case, in my judgment, Stoneham’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, does indeed provide support for a real concern of bias.

“Absent a transparent account of the extent of the connection, the objective observer is left fearing the worst. Accordingly, in such circumstances, I have no doubt that Stoneham should have recused herself and that, in the light of her refusal to do so, this court should allow the appeal and accede to the mother’s application.”

Referring to Mrs Justice Stoneham's explanation as to why she would not stand down, Dame Elizabeth wrote: "It is wholly unsatisfactory as a response in the circumstances of the recusal application.

"She has avoided addressing the extent, if any, of her connection with the father’s family, and, most importantly, she has not addressed the issue of whether she did indeed intervene ― apparently by telephone ― to release the father from prison, and, if so, the circumstances in which she did so.

“Accordingly, I would direct that Stoneham should stand recused from this case and that another judge should be assigned to the case urgently. Thereafter that judge shall schedule a hearing at the earliest opportunity to hear all remaining issues in the case.

“There has been considerable unnecessary delay to date and no further delay should be permitted.”