Cooper, R v [2008] EWCA Crim 1856
[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.