His smile is as grand as his forehead. He wears a tie that is knotted closer to his right ear than the centre of his neck and the collar of his suit is turned in. The nutty professor look fits neatly with someone who achieved a Congratulatory First in Greats and who initially thought he would become an academic. His voice is deep and easy on the ear. He sounds to me a little like Ed Stourton, less mellifluous perhaps, but more interesting.
Route to the Bar
How did he come to law? It seems it was Professor Kenny at Oxford who snared him with a series of eight lectures on the case of Hyam v DPP ( AC 55) and the meaning of intention; that and an early fascination with Dostoyevsky and Crime and Punishment. The young Fitzgerald was intrigued by Raskolnikov and the criminal mind. Is there reformation? Or redemption? How do we punish and treat criminals? It’s a subject he has been involved in ever since.
Yet his career was not certain for some years. He loved debating and signed up for the Bar, not doing particularly well he says (take this with a spray of salt), spending his spare time writing fiction. There is a hint that he might have quite fancied playing snooker with Barnes and Amis had things worked out that way, but he was too intrigued by crime.
After Bar School he decided that he had become “very effete and self indulgent” and so he went to work in what he describes as a borstal. It was in fact Kingswood Training School, an approved school for young offenders, where he taught drama and history for a year. Although full of liberal angst, it was the young offenders of that institution who told him bluntly that if he wanted to do any good he should go back to the Bar. So he did, working as a pupil with Stephen Sedley (now Lord Justice Sedley), Stephen Solley QC and Robert Owen QC, all men about whom he speaks highly—although in truth there are no bad words about anyone; he isn’t that type of barrister.
His early practice was guided by the thought that he might not stay at the Bar forever and he wanted it to be very exciting and interesting while it lasted. He can have few regrets. Sedley introduced him to prisoners’ rights cases and he developed a taste, but the following year he was off yet again, this time to the Cambridge Institute of Criminology to write a paper about …—he isn’t very sure what save that, he says, it had little academic merit. He spent time at Ashworth Mental Hospital and learnt a lot under the aegis of a “brilliant” doctor. He uses the word “brilliant” frequently and always to describe other people; pupil masters, academics, judges.
During the Cambridge criminology period the die was cast when Geoffrey Robertson QC invited him to work on some death penalty cases at Dr Johnson’s Buildings. He had held strong feelings about the death penalty from his teenage years and now he became “very gripped”. The grip has held him ever since.
Although a trial advocate at the start of his career, he found trials deeply stressful; for some time he felt a complete fraud in front of the jury. He settled far more naturally into arguing points of law, developing into a thorn in the side of successive governments. Michael Howard QC, when Home Secretary, in particular suffered from his lucid and skilful attacks on the Home Office, and famously greeted him at a function with the words: “Oh Edward, you’re a thorn in my side!”
Ground breaking work
His workload was broad and frequently ground breaking; he was in the vanguard as the courts started to exercise jurisdiction over matters that had previously not been susceptible to legal challenge, such as prison discipline, prisoners’ rights, parole and the judicial setting of tariffs for indeterminate sentences of imprisonment. The work was radical law in action and Fitzgerald’s impact on the developing jurisprudence was immense —perhaps unrivalled—Bingham, then LCJ, once turned to Edward’s opponent in a life imprisonment case and asked if he had any comments on Edward’s skeleton argument. When the answer came back “no”, Bingham said: “Then I’ll let it stand as my judgment”.
He shies away from accolades (although he has now been honoured with a CBE) and always has a self deprecating tale to tell.
The Death Penalty Project
Over the following years, his practice contained a roll call of clients very much in the public eye, if not quite the sort that the city titans would be fighting for: Mary Bell, Abu Hamza, Myra Hindley, Jon Venables, Maxine Carr to mention but a few. Yet although these characters may cause a stir in the street, more fundamental has been his work on what became the Death Penalty Project. He (with others) began a relentless series of challenges to the mandatory death penalty across the Caribbean which culminated in the Privy Council ruling the mandatory death penalty unconstitutional and, in Trimmingham ( UKPC 25), approving a very restrictive test set of criteria to be applied in discretionary death penalty cases. He describes the whole process in three slowly delivered words; “Really very interesting,” and surrenders a small smile as he reflects on the scale of the achievement.
In recent years the work has expanded to encompass much of the globe. Lately he has been very involved in with the Death Penalty Project in Africa, helping out on a successful challenge in Uganda. He has been active in Asia too, most recently in Singapore. In his eyes, “there is a tremendous momentum towards recognising that the mandatory death penalty is wrong. More and more countries are looking at abolition because the death penalty no longer accords with modern standards and approaches; it is out of date.” The fire has not left his belly.
Through all of this he has continued to do prison cases and appellate work for mentally disordered defendants. He has done a lot of extradition work in the past few years, especially cases involving deportation to torture regimes. The issues have been fascinating and absorbing: should we deport on the basis of assurances about torture and treatment to nations such as Algeria, Jordan and Libya? Can a returning Rwandan genocidaire receive a fair trial? And what about Chechens being sent back to Russia?
The next great step
For Fitzgerald, the development of universal jurisdiction in cases of torture and genocide is the next great step. Once again he will be at the forefront of this development, utilising his formidable skills on behalf of all sorts of different clients—unless of course he decides that his time is more interestingly spent elsewhere. But where might he go? The Bench? He has obviously toyed with the idea seriously but now he thinks, perhaps not. He is a fully qualified Recorder, but he has never actually sat. Why not? He smiles and says he worries that he might go through the wrong door or burst in on the wrong court or something like that. “Not my forte”’ he offers and then there is a long slow laugh. When it ends he is serious, slightly pained. “It wasn’t me. I am not sure I could put people inside. It’s a question of individual feeling rather than moral principle”. It is the only slightly difficult period in the interview. “I think my energies are best deployed in doing what I am doing”.
A good man doing a brilliant job.
Tom Allen is a barrister at 5 Paper Buildings