| dc.description.abstract | The History of Double Jeopardy and Criminal Jurisdiction: US v. Gamble (2019) and R. v. Hutchinson (1677) 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. This article sets out a fuller and more accurate account of Hutchinson than was available to the Court. Drawing upon a range of sources, including manuscript letters, state papers and plea and controlment rolls, it identifies the actors, from powerful families, and explains the relevant law on jurisdiction and the procedure that was adopted. It shows that there is overwhelming evidence 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 (1736), and it draws attention to a contemporary (1678) manuscript report by Northey of the decision of the judges. If the English position in 1791 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 the interpretation of the US Constitution, 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. | en_US |
