Chambers UK 2016: Steven Kay QC “Has significant experience before the International Criminal Court in matters involving crimes against humanity and war crimes. He is also sought after to counsel governments, corporations and membership organisations on best practice and compliance matters”. Expertise: "He has a stellar international crime law practice and he is great in court."
Recent work: Succesfully defended President Kenyatta of Kenya at the ICC who was charged with crimes against humanity for his alleged role in violence following the 2007 national elections in Kenya. The Prosecution withdrew the charges in 2015.
Steven’s experience in complex and demanding cases has seen his return to practice in England and he is currently instructed by Vincent Tchenguiz, Rawlinson & Hunter Trustees SA, Vincos Ltd, Euro Investments Overseas Inc in a civil fraud claim against Grant Thornton UK LLP, Kaupthing Bank Hf. See link here. Gary Summers and Lennart Poulsen of 9BR have joined him on this case. The use of criminal expertise in commercial fraud cases is a recognition of the skills available at 9BR.
Steven Kay QC leads 9 Bedford Row’s International team. He is a leading international criminal lawyer with a global reputation who has been in many of the landmark cases that have established modern international criminal law and led the 9 BRi team that successfully obtained the withdrawal of the case at the ICC against President Uhuru Kenyatta. His cases below demonstrate the depth of experience and the quality of the work for which he has been hired. 9 Bedford Row’s other international lawyers have been involved in most of these cases with him and they have developed together an impressive team to meet the unique challenges these cases present in whatever part of the world they may arise.
Steven is experienced in advising clients at the crisis stage of an international situation by setting out their options and guiding their responses, whilst also making the preparations necessary for future litigation. International cases are complex and demanding, they require a careful exercise of judgment and a thorough understanding of the issues involved so that a case is ready by the time you arrive in court. Experience has shown that good systems for the collection and management of evidence are necessary and he assembles highly able team members to perform these tasks. The presentation of that material in oral or written form is crucial and it is here where his advocacy and presentational skills are able to make the difference in a clear, understandable and accurate presentation of a case either through the questioning of witnesses or speeches.
He is Co-Chair of the IBA War Crimes Committee, a founder member of the ICLB www.internationallawbureau.com and ranked as a leading practitioner at the UK bar.
Chambers UK 2015 Commentary: Steven Kay QC 'Has significant experience before the International Criminal Court in matters involving crimes against humanity and war crimes. He is also sought after to counsel governments, corporations and membership organisations on best practice and compliance matters. Expertise: "He has a stellar international crime law practice and he is great in court." Recent work: Defended President Kenyatta of Kenya, who was charged with crimes against humanity for his alleged role in violence following the 2007 national elections in Kenya.
The Prosecutor v Uhuru Kenyatta 2010-2015
International Criminal Court proceedings commenced in December 2010 against President Uhuru Kenyatta of the Republic of Kenya, and son of the first President of the nation, Jomo Kenyatta, alleging a leading role in the post-election violence of 2007 - 2008 for which he was charged with crimes against humanity.
At the confirmation of charges hearing, the Defence challenged the Prosecution case theory comprehensively and called Uhuru Kenyatta to give evidence in his own defence. The Defence evidence and submissions to the court clearly established the strong foundations of the defence case. Although the Pre-Trial Judges confirmed the charges, it was subsequently established that the Defence contentions at the hearing had been correct. Furthermore, an alternative case the Prosecution had tried to create against Uhuru Kenyatta after confirmation of charges was also successfully challenged. In December 2014 the charges were finally withdrawn by the Prosecution, having admitted there was an insufficiency of evidence upon which to proceed to trial.
To read a report on the failure of that case and the work of the 9 Bedford Row Defence team go to:
The Prosecutor v Ivan Čermak 2007-2011
Acquittal of General Cermak at the International Criminal Tribunal for the Former Yugoslavia which undertook the prosecution of three Croatian Generals arising from the conduct of military forces in Operation Storm in August 1995 that resulted in the liberation of territory from the RSK. Gillian Higgins of 9BRi was co-counsel in this case that has been described as the most important trial in the history of the State of Croatia. The essential evidence to be challenged in this case principally arose from UN witnesses who had their own view of matters on the ground, as opposed to the reality of Cermak’s position in fact. Detailed review of military regulations and orders was necessary to persuade the court of the actual and exact unfolding of events at the time, not apparent from the Prosecution case. Expert evidence from internationally respected witnesses upon the Croatian military and powers of the police underpinned the truth of the Defence case.
Bangladesh International Crimes Tribunal 2010
January 2011 instructed with Toby Cadman and John Cammegh of 9BRi by Jamaat E Islami to represent their members prosecuted by the Bangladesh International Crimes Tribunal for war crimes alleged to have taken place in the conflict to create the state of Bangladesh in 1971. Steven challenged the fairness of the Bangladesh International Crimes Act and its Rules at a human rights conference in Dakhar, in October 2010 attended by many leading politicians and lawyers and exposed in a public forum the flaws of the ICTA 1973 to start the Defence campaign to challenge the fairness of the ICT.
The 9BRi team on the case worked with local lawyers to put together trial strategies and build the Defence cases to challenge the Prosecution’s evidence. The further brief to the team was to attempt persuade the Government of Bangladesh to reform its laws that have been internationally condemned as unfair and to seek international support to pressurize for reforms.
The Prosecutor v Slobodan Milosevic 2001-2006
U.N. International Criminal Tribunal for the Former Yugoslavia appointed Steven in September 2001 as amicus curiae with responsibility for defence issues in the trial of the ex-President of Serbia. In September 2004, he was appointed the Court Assigned Defence Counsel for Slobodan Milosevic. Gillian Higgins of 9BRi was also counsel in this historic case that was the first international trial of a Head of State. The trial was upon 3 joined indictments concerning the wars of the 1990s waged in Kosovo, Bosnia and Croatia by the Serbian forces and was the largest international criminal trial in its scope. This trial involved political, historical and factual issues of a highly complex nature and legal argument that has been referred to ever since.
The Prosecutor v Alfred Musema 1998-2001
U.N. International Criminal Tribunal for Rwanda. This was the first trial of a civilian alleging command responsibility for genocide and it took place in Arusha, Tanzania. The Defence team included Gillian Higgins of 9BRi and they were the first U.N. Defence counsel to enter Rwanda to conduct investigations in the field. These investigations produced important and critical evidence for the case that had been overlooked by Prosecution investigators who had been established in the field.
The Prosecutor v Dusko Tadic 1996-1997
U.N. International Criminal Tribunal for the Former Yugoslavia. This was the first international war crimes trial since the Nuremberg and Tokyo trials of the 1940s. This landmark trial in 1996 established the foundation for modern international criminal law. Tadic was charged with war crimes and crimes against humanity. The case had many legal arguments that set the foundations for the future conduct of international trials. This case started with enormous emotional hostility against the accused and through the careful presentation of the Defence case, there was a sea-change of interest into the merits of the case which seemed inconceivable at the start.
In the International Court of Justice
Application of the Republic of Liberia concerning an international arrest warrant for President Charles Taylor, issued on 7 March 2003 by the Special Court for Sierra Leone.
Advised suspects held in US Army captivity on ways and means to exercise their human rights.
With John Traversi of 9 BRi training Defence and Prosecution counsel in Kazakhstan how to deal with the introduction of jury trials into the criminal justice system in January 2007.
August 2008 – 2009 advisor to the government of Sudan re: referral by UN Security Council of Darfur situation to the International Criminal Court and the arrest warrant issued for President Bashir.
December 2005 – 2007 advisor to the Syrian Government and individuals concerning the investigation into the assassination of Lebanese ex-Premier, Rafik Hariri and 14 related terrorist explosions that are the subject of the jurisdiction of the Special Tribunal for Lebanon.
Beslan Victims Complaint v Russia ECtHR 2011
Steven Kay QC and Eeva Heikkila undertook pro bono the case of the siege at the school in Beslan by Chechen terrorists in September 2004 and in 2013 received notice from the European court of Human Rights it had been referred to the Russian Government for observations. This landmark case has taken its first step in seeking justice for the victims against the Russian Government which now has to explain why it stormed a school full of children and civilians using tanks, flamethrowers and grenades on the third day of the hostage crisis. Many of the children were burned alive in the school gym, as the roof caught fire under the attack by the security forces. The case before the Court is that the deaths of the 334 hostages were as a result of the excessive and indiscriminate use of lethal force by the Russian security forces. After the storming of the school, the hospitals in the area were sealed-off by the Government and the victims’ families denied access and information. Many parents still don’t know how their children died. Many parents have also not been told where the remains of their children are located. The complaint to the ECHR also charges the Russian Government with failure to investigate where the responsibility for the deaths lies and for the failure to bring those responsible to justice. The case they will present to the ECHR is not only that the assault upon the school violated the rights of the children and innocent civilians inside the school, but also that the persistent denial of justice and lack of accountability for this crime constitute individual breaches by the Russian Federation of the European Convention on Human Rights and Fundamental Freedoms.
Drafting with David Hammond of 9BRi the 100 Series Rules for the Use of Force for a Flag State and SAMI for submission to the IMO. Advising upon the liabilities of security companies, insurers, charterers and individuals in the use of force to protect a vessel and all aboard from piracy or armed robbery at sea. Advising upon the impact of the Corporate Manslaughter and Corporate Homicide Act 2007 upon companies employing armed guards or providing armed guards for the protection of merchant vessels. The 100 Series RUF has now received international recognition.
Drafting a report for the ABA ROLI on the effectiveness of the Defence in the criminal justice system of the Kingdom of Bahrain as part of the programme aimed at implementing internal justice reforms. Devising an 8-stage training programme manual to improve the quality of the Defence counsel which was followed by delivery of the training programme to lawyers and trainers in 2013.
Sri Lanka 2014
Providing submissions to the OISL of the UNHCHR on behalf of 3 Sri Lankan NGO’s upon the 30 years conflict between the Government of Sri Lanka and the LTTE (Tamil Tigers) that resulted in the final defeat of the LTTE in 2009. Steven led the team at 9BR that submitted detailed reports upon various aspects of the conflict and to support these with evidence. With documents originating from Sri Lanka, and extensive media reports from open sources, comprehensive and persuasive reports were compiled to challenge the extensive media campaign that had built up to prosecute Sri Lanka.
Virunga National Park Democratic Republic of Congo 2012
Pro-bono project to challenge on behalf of the Virunga National Park in DRC a UK FTSE 200 company, prospecting for oil and gas in the famous UNESCO Heritage site and home to the last species of mountain gorillas. This matter involved consideration of international environment law, the national laws of DRC and national laws of the company. Steven’s team at 9BR were determined to protect the local people and wildlife under threat from the commercial activities of the company.
- Queen’s Counsel 1997
- Recorder of the Crown Court 1997
- Co-Chair IBA War Crimes Committee 2012
The Role of the Defence – Commentary on The Rome Statute of the International Criminal Court ed. Casese, Gaeta, Jones OUP 2002
International Criminal Justice – Westlaw online
Cases that Changed our Lives – The First Nuremburg Trial And Its Enduring Legacy “Even Rulers Are Under God And The Law”
Secretary of the Criminal Bar Association of England and Wales 1993-1996
Prime Minister’s Special Committee on Victims in the Criminal Justice System 1995
Founder Member of the European Criminal Bar Association 1997
Founder member of the International Criminal Law Bureau 2008
Lectures throughout the world on issues concerning the International Criminal Tribunals and the International Criminal Court (i.e. Berlin, Amsterdam, New York, Johannesburg, Salzburg, Geneva, London, The Hague, Sarajevo, and Arusha)
Training courses in advocacy and law to enable counsel to have the skills necessary to appear before international courts.
Notable National Cases
- R v Winzar: An allegation of murder by insulin injection.
- R v Lomas: A European agricultural regulations fraud referred to the EEC Court of Justice, Luxembourg.
- R v Hannon: An international time share fraud involving the companies of John Palmer tried at the Old Bailey in London.
- R v Clemente: An international money laundering case involving the U.S, Netherlands, Switzerland, Spain and Austria. It was the largest case of its type tried in the U.K.
- R v Dass: A revenue fraud involving corruption of an HM Customs Officer.
- R v Simmonds: The manufacture of pharmaceuticals in Hong Kong listed as controlled drugs in the UK and their illegal import and export through the UK to the Middle East and Africa.
- R v Amani: A murder within a prison.
- R v Harrington: Money laundering through a police sting operation involving a fake bureau de change.
- R v Munshi: Arson of a dwelling by a group of young people in which 3 children died.
- R v Shakespeare: A case involving multiple sexual attacks by the use of a date rape drug.
- MPS v. Dariye : Civil and criminal proceedings against the Governor of Jos State in the Federal Republic of Nigeria and England for corruption and money laundering.