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Let us say someone (D) commits an offence under an Act of Parliament applicable to both England & Wales and Scotland, and the circumstances mean that both England & Wales and Scotland have jurisdiction (such as perhaps a cross-border fraud crime).

  1. The (Scottish) Crown Office and Procurator Fiscal Service (COPFS) charges D, and D is acquitted. Subsequently, the (English & Welsh) Crown Prosecution Service (CPS) charges D for the same offence under the same Act and the same set of facts.
  2. The CPS charges D, and D is acquitted. Subsequently, the COPFS charges D for the same offence under the same Act and the same set of facts.

In either case, can the second prosecution against D be stopped on the grounds of double jeopardy, under English and Scots law, respectively?

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Yes, double jeopardy applies

The common law pleas of autrefois acquit and autrefois convict apply equally to foreign offences; this is black letter law in Halsbury's Laws of England. Scotland is "foreign" for these purposes. There is no analogue to the odd US dual sovereignty doctrine.

The general exception to double jeopardy regarding the re-trial of serious offences under Part 10 of the Criminal Justice Act 2003 does not apply here, because of an odd anomaly created by the statute due to criminal justice being devolved to the Scottish Parliament. As a result, according to the Crown Prosecution Service:

There are no provisions dealing with qualifying offences [for retrial after acquittal] in Scotland as criminal justice is a matter for the Scottish Parliament. At present, the law in Scotland has not been changed so that these provisions do not apply to acquittals that take place in Scotland.

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  • While it is a kludge, the doctrine of dual sovereignty in the U.S. basically operates as a backdoor way to re-try serious offenses that could be retried in England under the Criminal Justice Act of 2003 or when a seemingly unjustified acquittal leads to mass public unrest (as in the LA riots police officer acquittals). So, the difference in practice is much smaller than the differences in the law books.
    – ohwilleke
    Aug 11 at 20:24

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