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(1998) unreported, CA. The defendant, who was charged with indecently assaulting his step-daughter, was cross-examined on semen stains found by the police on her nightclothes. He had not been questioned on this specific finding by the police. He speculated that the stains could have got onto the girl's clothes in the bathroom. The trial judge determined that s.34 of the criminal justice and public order act (1994) was engaged, and he directed the jury that they could draw adverse inferences from the defendant's failure to mention 'the matter' during questioning.

The Court of Appeal held that the judge was wrong to give this direction. Since the defendant was unaware that he would be questioned about this evidence, he had no reason to offer any explanation to the police. Consequently it was not reasonable to expect him to do so. Moreover, being invited to speculate about some finding during cross-examination did not amount to relying on 'some fact'.

The Court of Appeal also pointed out the incogruity between the relatively precise statutory language of s.34, which refers specifically to 'some fact', and the much wider wording of the official caution:

...it may harm your defence if you do not mention when questioned something which you later rely on in court.

See right to silence.