Double Jeopardy and Successive Prosecutions Based on the Same Prohibited Conduct: Equivalence of Approaches to Determining the Same Offence Dilemma in Comparative Perspective

Abstract

Post-acquittal retrials for substantially the same offence are possible in jurisdictions that have provided statutory modifications to the common law double jeopardy principle. The pleas in bar of prosecution, autrefois acquit (previously acquitted) and autrefois convict (previously convicted), are predicated on a final verdict of acquittal or conviction by a court of competent criminal jurisdiction for substantially the same offence. Differentiating similarities between the increasing volume of overlapping offences is the most litigated aspect of the double jeopardy principle. Seminal common law jurisdictions have adopted variations of the same elements approach that examines whether two or more offences arising out of the same prohibited conduct are the same based on an assessment of whether there is an element in one offence not in the comparable offence. Through doctrinal analysis of superior court jurisprudence in the Unites States, England and Wales, Canada, Australia and New Zealand, this article evaluates judicial formulations for determining the sameness of offences in comparative perspective. While the analysis is intrinsic to each jurisdiction, judicial formulations may nonetheless shed light on similar issues coming before courts of criminal justice in cognate jurisdictions.