He's my client, and I'll do my best for him
The Times (London) - September 21, 2004, Tuesday

By: Frances Gibb

Defending a notorious ex-dictator against charges of genocide is just another job, Slobodan Milosevic's QC tells Frances Gibb.

THE British barrister who has landed the brief of defending Slobodan Milosevic asked for the sack -after just one week in the job.

Steven Kay, QC, took on what many call the brief from hell -defending the former President of Yugoslavia against 66 counts of genocide, crimes against humanity and war crimes -at the request of the judges trying the case.

But, having been appointed against Milosevic's wishes, he says that his first duty is to have himself removed -as that is what his client wants. He also believes that Milosevic has a right to act for himself.

In his first interview, Kay, 50, told The Times: "We argued from the start for his right to represent himself and still argued this right up to our appointment. He didn't want any lawyer at all -not even his own. When medical reports stated he was too ill to go on acting for himself, we suggested to him -through his advisers -that he appoint someone. But our view was, and still is, that it's a matter for him."

Kay and his junior barrister colleague, Gillian Higgins, who is instructed with him, have been at the UN war crimes tribunal for the former Yugoslavia as neutral "friends of the court" since it began in February 2003, often putting points on Milosevic's behalf that he had failed to put himself. So they were obvious choices when the court ruled that, if he would not appoint a lawyer, it would do so for him.

Milosevic's stance is just one of the problems with Kay's latest brief. His client does not speak to him so he cannot take instructions. He also has to call evidence from 1,631 witnesses listed by the accused in 150 days. Above all, he has the unenviable task of representing one of the most vilified defendants in history.

"My duty is to act in his best interests," he says. "I will do the job as best I can."

A strong believer in the "cab rank" principle -that barristers should take whatever briefs are offered to them -he adds: "Milosevic pleaded not guilty. I don't think any brief should be refused because of one's personal opinions. It's your job to represent someone and when I took my QC oath, that was one of the requirements. An advocate is just doing his job -not identifying with the case."

But he admits it was a tough decision. In his role at the court as "amicus" with two other lawyers, he had to ensure that the trial was fair and that all points to counter the prosecution were put. With Milosevic starting his defence, the job was winding down and Kay, a former secretary of the Criminal Bar Association, was preparing to resume his busy London mixed criminal practice at 25 Bedford Row. "I was booked for a big fraud trial in September." Then medical reports indicated that Milosevic could not continue unaided (he has high blood pressure and 66 trial days have been lost through illness) and Kay was asked to take on the brief.

Speaking at his Surrey home during a weekend break with his family, he says: "I thought long and hard. I had to discuss it with my wife, who's very supportive.

And we have a four-year-old daughter. I also enjoy my work at the Bar and wanted to keep it going -not be pigeon-holed in one kind of case."

Then, though, his fraud trial was adjourned. "I felt duty bound to admit that I was available after all." There was also considerable pressure to agree. "The court was going to appoint someone. Hundreds of lawyers have offered their services. But someone completely new would mean a delay of six to nine months while they got to grips with the case. It would have been a tremendous waste of international resources. That bore very heavily. People might have said: 'You walked away from it.' " Kay was also the obvious choice because of his wide experience in war crime cases.

His advocacy skills are highly regarded. He was defence counsel for Dusko Tadic, the first defendant before this tribunal, and also Alfred Musema, a defendant at the UN international criminal tribunal for Rwanda.

He suggested that the court might like to appoint other lawyers for Milosevic.

"But they said we were the people for the job -partly because we'd been present but also, one hopes, for the quality of our work."

The trial is set down for two more years. Kay is paid a lump sum to include Higgins's fees and the administrative costs. His own salary is estimated at £250,000 a year, for which he does the work of a barrister and solicitor, "obtaining all the witness statements and so on".

During the prosecution case he enjoyed good relations with Milosevic, often putting arguments for him and even chatting during breaks. "We did some cross-examination, although he did it as well, and we handled all the legal issues. At the close of the prosecution case we also filed a motion for some charges to be dismissed -certain allegations relate to times or places not specifically within the tribunal's remit."

Now, though, Milosevic is not communicating. "We are encouraging him to do so, and he's not obstructed access to witnesses. We have to try to work out what his defence is -in his best interests. The defence is complex but broadly it's that he did not enter into a joint criminal enterprise to commit crimes against humanity, and wanted peacefully to keep Yugoslavia and its different ethnic peoples together as far as possible."

Pending a decision on whether he must go on with the job, Kay has set the ball rolling and called several witnesses. "We want to show that we mean business, so the word goes out to other witnesses that we are here, and want to call them for the defence. Now I just have to point myself in the right direction and start moving. It's a very English phrase, but you just have to get on with it."

SECTION: Features; Law; 3

Copyright 2004 Times Newspapers Limited
Posted for Fair Use only.