This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from a comparison of U.S. and U.K. law that might serve to rationalize and clarify the U.S. Supreme Court's jurisprudence by supplementing the narrow same-elements interpretation of the Double Jeopardy Clause with a due process or supervisory-power protection against oppressive multiple prosecutions.
Lissa Griffin, Two Sides of a "Sargasso Sea": Successive Prosecution for the "Same Offence" in the United States and the United Kingdom, 37 U. Rich. L. Rev. 471 (2003), http://digitalcommons.pace.edu/lawfaculty/471/.