Royal Courts of Justice
The Strand
London
WC2A 2LL
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
R E G I N A
- v -
GARY ANTHONY COOPER
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
Mr R Wormald appeared on behalf of the Appellant
Miss J Cutts QC appeared on behalf of the Crown
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:
We refuse the appellant's applications.
On the application of the Crown we certify that the following questions are of general public importance:
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?
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?
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.