Where sexually charged text messages between an accused and complainant are admitted as context or relationship evidence in a sexual offence trial, there may be substantial and compelling reasons under s 16(1) of the Jury Directions Act 2015 requiring the trial judge to give an anti-propensity warning under s 29, even absent a request from counsel. The risk of impermissible tendency reasoning from documentary evidence such as text messages may be greater than from oral evidence of uncharged acts, because text messages 'speak for themselves' and have 'enormous potency'. A text message exchange constituting a virtually complete confession may render conviction on the relevant charge inevitable, such that the failure to give the warning does not occasion a substantial miscarriage of justice in respect of that charge.
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