IT is a common misconception that double jeopardy, whereby a defendant can be tried for the same offence twice, is a recent addition to the statute books.

Witness the case of Robert Raey, who appeared at the Hampshire Summer Assizes in 1844, charged with killing and murdering John Harrison by shooting him on a brig called Chieftain in a drama in the Mediterranean.

The defence immediately challenged the court’s authority to hear the case on the basis that it had happened on the high seas outside its jurisdiction but Mr Justice Wightman swiftly overruled that objection after it had been established the Chieftain was a British-registered ship.

However, Andrew Cockburn raised a second point that Raey had already been tried in a

specially convened court at Spalato – in what is now Croatia – on the same charge. He had been found guilty and jailed for six years.

“But he appealed against that conviction and it has been reversed,” he revealed. “He now stands before you as a free man.”

Mr Sewell, who was appearing for the Crown, was evidently caught out by the move and asked for some time to consider the situation.

But Cockburn countered: “My application cannot have taken the prosecutors by surprise because the same defence has already been laid before the magistrates in Southampton and the documents surrounding it have been produced.”

The judge accordingly adjourned proceedings for a couple of hours while he took other cases in his list.

On its resumption, Cockburn then produced – and proposed to put in – a record from the Imperial and Royal Tribunal of the Austrian Empire of the original sentence.

The document bore the seal of the Spalato court and testimony confirmed Raey had been confined in prison on February 13 and 14 but the following day he had been returned to the brig.

It also proved that on January 21 the Chieftain had been anchored in the bay off the Croatian coastline when Harrison, the cook, was killed.

Raey was initially convicted and jailed, but for some reason – either never revealed to the Winchester court or not reported by the press – the same witnesses were re-interviewed and as a consequence he was ultimately cleared.

Establishing the document as exhibit one, the lawyer was adamant: “It states that he has been acquitted for want of legal


The judge, however, was not entirely persuaded by the strength of his argument: “There is nothing to show that there is an acquittal on the merits.”

However, he would confer with Mr Justice Patteson.

Returning to court, he upheld the submission.

“We consider this a question of law and not a case for the jury. It ought to appear that the sentence was final and the party cannot be tried again. The literal translation of this document means we suspend process for want of legal proof.”

No sooner had the jury taken their oaths to try the case, the judge explained to them what had happened, and accordingly Raey was found not guilty.