No. 2007/02154/D3
Neutral Citation Number: [2008] EWCA Crim 1856
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Thursday  31  July  2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)

MR  JUSTICE  BEAN

and

MR  JUSTICE  WILKIE

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R E G I N A

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GARY  ANTHONY  COOPER
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Mr R Wormald appeared on behalf of the Appellant

Miss J Cutts QC appeared on behalf of the Crown
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JUDGMENT
HOUSE OF LORDS PRONOUNCEMENT 

Thursday  31  July  2008

THE LORD CHIEF JUSTICE:  On 23 April 2008 the court allowed the appeal of Cooper against his conviction and ordered a retrial.  Applications were referred to the court in relation to which we make the following order:

	1.  We refuse the appellant's applications. 

	2.  On the application of the Crown we certify that the following questions are of general public importance:

		i)	Were the Court of Appeal correct when stating that capacity to consent to or refuse sexual activity as set out in section 30(2)(a) of the Sexual Offences Act 2003 is solely issue specific and cannot be either person or situation specific?

		ii)	Were the Court of Appeal correct in stating that for the purposes of section 30(2)(a) of the Sexual Offences Act 2003 an irrational fear related to a mental disorder that prevents the exercise of choice cannot be equated with lack of capacity to choose?

		iii)	Were the Court of Appeal correct in confining the meaning of section 30(2)(b) of the Sexual Offences Act 2003 to circumstances where the complainant is physically unable to communicate her refusal to sexual activity. 

We refuse the Crown leave to appeal to the House of Lords.