Double jeopardy

Mumford, Ann C. and Alldridge, Peter W., The History of Double Jeopardy and Criminal Jurisdiction: US v. Gamble (2019) and R. v. Hutchinson (1677) (October 31, 2022). forthcoming in the Law Quarterly Review, Queen Mary Law Research Paper No. 391/2022, Available at SSRN: https://ssrn.com/abstract=4262990

​In 2019, the United States Supreme Court decided the case of US v. Gamble, reaffirming the “dual sovereignty” exception to the double jeopardy protection of the Fifth Amendment. The Court considered the absence of definite information about the English case of R. v. Hutchinson (1677) to be crucial to its decision. Hutchinson has long been cited as authority for the proposition that an acquittal in a foreign court serves as a complete bar to a prosecution in England and Wales of a UK Citizen, for the murder abroad of another UK citizen. It was argued for Gamble that this was the common law of England in 1791, the date of ratification of the US Constitution, and it was incorporated into the meaning of the Fifth Amendment, so that he, having been convicted of an offence in Alabama, could not be tried for the same offence under Federal Criminal Law. The report of Hutchinson usually cited ((1677) 3 Keb 785) is only to a bail hearing and says nothing about double jeopardy. This article sets out a fuller and more accurate account of Hutchinson than was available to the US Supreme Court. Drawing upon a range of sources, including manuscript letters, state papers and plea and controlment rolls, and a contemporary (1678) manuscript report of the decision of the judges, it identifies the actors and explains the relevant law on jurisdiction and the procedure that was adopted. The killing was in Lisbon in December 1675. In 1676 there were two unsuccessful prosecutions in Lisbon. When the alleged killer was in England the victim’s father had him arrested and petitioned the King’s Council to issue a commission under the Criminal Law Act 1541 for Hutchinson to be tried in England. The Council referred to the judges the questions whether the murder in Portugal of an Englishman by an Englishman could be tried in England (and, if so, in which court); and if they could, whether the fact that he had been tried and acquitted in Portugal served as a bar. The judges held that the murder could be in principle be tried in common law courts, where a commission was issued under the Criminal Law Act 1541, but that the Portuguese acquittals were a bar to the proceedings. Far from being ‘feeble’ (as Alito J described it) the evidence is overwhelming that Hutchinson was decided by a meeting of the judges in exactly the manner set out in a footnote in Leach’s report, first published in 1789, of Roche (1775), and that this does represent English common law as it stood in 1791. If the state of English common law at that date is to be treated as dispositive of disputes as to the meaning of expressions in the US Constitution, which is the dominant “originalist” position on its interpretation, then the US Supreme Court should have closer regard to the history. English law on the relationship between double jeopardy and overseas trials should also be reconsidered.