Feigning Psychosis as a Serious Aggravating Factor and Its Effect on Guilty‑Plea Credit in Murder Sentencing — R v Van‑Pooss [2025] EWCA Crim 1240

Court: England and Wales Court of Appeal (Criminal Division)

Judges: Judgment of Lord Justice Edis

Date: 25 July 2025

Neutral Citation: [2025] EWCA Crim 1240

Procedural Posture: Reference by His Majesty’s Solicitor General under section 36 of the Criminal Justice Act 1988 (unduly lenient sentence)

Introduction

This case concerns a reference by the Solicitor General challenging the minimum term imposed for a sexual‑motivated murder. The offender, aged 21 at sentence (20 at the time of the offence), pleaded guilty to murder and to a (separate) sexual offence of operating equipment under clothing to observe another (section 67A Sexual Offences Act 2003). The murder followed a violent sexual assault on a lone woman walking on an isolated footpath, and involved extreme blunt force head injuries, restraint, and disposal of the still‑breathing victim’s body into water, with drowning as a partial cause of death.

Central to the appeal were three interrelated issues:

How to weigh aggravating and mitigating factors when the statutory starting point is already the “particularly high” 30 years (Schedule 21).
Whether an offender’s deliberate feigning of psychotic symptoms post‑offence is a distinct and serious aggravating factor.
How late plea credit should be assessed in a murder case where psychiatric issues have been explored, particularly where the offender feigned psychosis and advanced an “outrageous” narrative inconsistent with the evidence.

The Court of Appeal quashed the minimum term of 24 years 47 days and substituted a minimum term of 31 years, less 501 days spent on remand, yielding a new term of 29 years and 229 days.

Summary of the Judgment

The original sentencing judge adopted the 30‑year Schedule 21 starting point for murder involving sexual conduct and held that aggravation and mitigation balanced out before plea. He then allowed a 15% reduction for the late guilty plea.
The Court of Appeal held that the aggravating factors clearly outweighed the mitigation and that the judge had erred in treating them as in balance. It emphasized, in particular, the serious aggravation inherent in the offender’s calculated feigning of psychosis intended to achieve an unjust outcome (manslaughter via diminished responsibility), which also complicated and prolonged the proceedings.
The Court raised the pre‑plea starting term to 33 years. It then limited guilty‑plea credit not by a strict percentage but by an absolute deduction, stating that “the most credit” warranted by the late plea was two years, producing a minimum term of 31 years before deducting remand time.
Leave to refer was granted; the sentence below was quashed as unduly lenient; and a substituted term of 31 years (less 501 days) was imposed.

Factual and Procedural Background (Concise)

August 2023: After discovery of an upskirting incident at his workplace (leading to dismissal and police involvement), the offender secluded himself nearby with a backpack containing a chef’s knife.
Later that day: The offender attacked, sexually assaulted, and murdered Ms Claire Knights on an isolated track as she returned from swimming; he then disposed of evidence and feigned incoherence.
Arrest followed for the upskirting offence; the body was recovered two days later; the offender later admitted killing under caution.
Over a prolonged period, psychiatric and psychological evidence was gathered; suspicions of malingering emerged amidst inconsistent accounts. No expert ultimately supported diminished responsibility.
17 December 2024: Guilty plea to murder and to the upskirting offence.
28 February 2025: Minimum term of 24 years 47 days imposed (life sentence with 30‑year base, “balanced” aggravation and mitigation, 15% plea credit, and deduction for remand time).
Solicitor General referred the sentence as unduly lenient under section 36 CJA 1988.

Legal Framework and Authorities

Section 36 Criminal Justice Act 1988 (Unduly Lenient Sentence references): The Court may increase a sentence if it is unduly lenient—i.e., it falls outside the range of sentences a judge could reasonably consider appropriate.
Schedule 21 (statutory starting points for murder): Murder involving sexual conduct is classified as of “particularly high” seriousness, with a 30‑year starting point for the minimum term.
Sentencing Council guideline: Reduction in Sentence for a Guilty Plea: Ordinarily, percentage‑based reductions apply; in murder cases, the guideline reduction is conventionally treated as half the equivalent determinate‑sentence percentage. The guideline also recognises an “exceptional” allowance (para F1) when it was reasonable to delay plea pending key evidence (here, psychiatric assessment), but the extent is case‑specific.
Sexual Offences (Amendment) Act 1992: Anonymity for the living complainant on the upskirting count (not named in any reporting).
Homicide mental capacity defences: Diminished responsibility (now under the Homicide Act 1957 as amended) reduces murder to manslaughter where an abnormality of mental functioning substantially impaired responsibility. No expert supported that defence here.

Notably, the judgment did not rely on named case precedents; it reasoned from the statutory scheme and sentencing guidelines, applying established principles to the facts.

Analysis

1) Precedents and Authorities Applied

Although no specific earlier cases are cited by name, three pillars anchored the court’s approach:

Schedule 21 starting points and the court’s longstanding warning against “double counting.” Even when the starting point reflects inherent gravity (here, sexual conduct), additional case‑specific aggravation can justify an uplift beyond 30 years.
Unduly lenient references under section 36 CJA 1988: The court revisited the balancing exercise and found a clear error—placing this sentence outside the range reasonably open on the facts.
Guilty plea credit guideline: The court expressly considered the para F1 exception (delayed pleas owing to awaited reports) but emphasized that feigning psychosis materially undermined the plea’s value and therefore the credit.

2) The Court’s Legal Reasoning

(a) Aggravation versus Mitigation at the 30‑Year Starting Point

The sentencing judge adopted a 30‑year base for murder involving sexual conduct. He then held aggravation and mitigation in equipoise before applying 15% plea credit. The Court of Appeal disagreed, holding that the aggravation “clearly outweigh[ed]” mitigation. In reaching that conclusion, it reaffirmed two propositions:

No double counting: Many features typical of sexually motivated murders are baked into the 30‑year starting point. Courts must avoid uplifting for those same features again.
But genuine additional aggravation still counts: Where the case exhibits distinct, fact‑specific aggravation—here, calculated feigning of psychosis, significant concealment activity, extreme violence with terror and restraint, targeting a lone woman in isolation, and delay in discovery—an uplift beyond 30 years is justified.

Result: The court held that a 33‑year figure correctly reflected the overall seriousness before plea.

(b) Feigning Psychosis as a Serious Aggravating Factor

The court treated the offender’s post‑offence feigning of psychosis as a serious aggravating factor for two reasons:

Attempt to pervert the course of justice within sentencing: The conduct was “calculated, cynical and manipulative,” undertaken to secure an unjust outcome (manslaughter via diminished responsibility) and to frustrate or complicate the case.
Real-world impact on proceedings: It significantly complicated the investigation and prosecution, prolonged the case, and necessitated extensive clinical inquiry. The absence of a positive malingering test was not determinative; the judge’s factual findings—accepted by the Court—were grounded in the offender’s contemporaneous functioning and inconsistencies.

Importantly, this factor served a dual function in the appellate court’s reasoning: it warranted an uplift from 30 to 33 years and informed a marked curtailment of guilty‑plea credit.

(c) Guilty‑Plea Credit: From Percentage to an Absolute Deduction

The judge below allowed 15% off the 30‑year baseline (equating, the court observed, to 30% in a determinate sentence). Recognising the guideline’s flexibility (especially under para F1), the Court nevertheless considered that the late plea’s true utilitarian value was materially diminished by the offender’s manipulative conduct.

Crucially, rather than apply a further precise percentage, the Court exercised discretion to award credit as an absolute figure: two years off a 33‑year base, yielding 31 years. This reflects a notable, pragmatic approach—signalling that in appropriate murder cases, appellate courts may move away from strict arithmetical percentages to ensure the credit reflects the justice of the case.

(d) Youth and Mental Disorder in Mitigation

On mitigation, the court accepted the relevance of youth (age 20 at the time), absence of previous convictions, and a diagnosed personality disorder associated with difficult childhood trauma. However, it endorsed the judge’s finding that any impairment of self‑control was only “marginal,” and that these mitigatory features were outweighed by the case’s significant aggravation—especially the deliberate feigning of mental illness and the brutality of the offending.

(e) Outcome

Pre‑plea minimum term: 33 years (uplifted from 30 years to reflect aggravation).
Plea credit: Two years (absolute), not a percentage.
Final minimum term before remand deduction: 31 years.
Deduction for remand time (501 days): Minimum term of 29 years and 229 days.

3) Impact and Prospective Significance

This decision has several important implications for homicide sentencing and for case management where psychiatric issues arise:

Newly crystallised aggravation principle: Feigning mental illness with a view to securing an unjust verdict or frustrating the process can be treated as a serious aggravating factor. Prosecutors should be alert to this in submissions; defence teams must be aware of the adverse sentencing consequences of such conduct.
Plea credit in murder cases is context‑sensitive: While para F1 of the guilty‑plea guideline recognises that late pleas may be justified by ongoing expert evidence, where the delay is intertwined with manipulative conduct (e.g., feigning psychosis), substantial reductions in credit are justified.
Discretion to use absolute‑year deductions: Appellate courts may, in suitable murder cases, eschew rigid percentage discounts and instead apply an absolute deduction that better reflects the real utility and fairness of the plea.
30‑year starting point is not a ceiling: The judgment reinforces that the 30‑year starting point for “particularly high” seriousness murders does not preclude an upward adjustment for distinct aggravating features, provided double counting is avoided.
Evidential evaluation of malingering: The court endorsed the trial judge’s capacity to make robust factual findings on feigning, even where a single psychological instrument did not detect malingering, by weighing broader behavioural and contextual evidence.
Protection of women in public spaces: The court accepted “targeting a lone female” as an aggravating factor reflective of vulnerability and public concern, with appropriate caution against double counting given the high starting point.

Complex Concepts Simplified

Unduly Lenient Sentence (ULS) reference (s.36 CJA 1988): The Attorney General or Solicitor General may ask the Court of Appeal to increase a sentence that is so lenient it falls outside the range a reasonable judge could impose. It is not enough that the appellate court would have passed a different sentence; the original sentence must be “unduly” low given the facts and law.
Minimum term for life sentences: In murder cases, judges set a minimum term (tariff) the offender must serve before the Parole Board can even consider release. After the minimum term, release is not automatic; it depends on risk.
Schedule 21 starting points: Parliament prescribes starting points for murder. For murders with sexual conduct, the starting point is 30 years. Courts then adjust up or down for case‑specific aggravating and mitigating factors.
Double counting: If a feature is already accounted for by the starting point (for example, sexual conduct), the judge should not add extra years again for the same feature. Only additional, distinct aggravation justifies an uplift.
Feigned psychosis/malingering: Pretending to have psychosis to gain advantage (such as a manslaughter verdict) can aggravate the sentence. It may also reduce any discount for a guilty plea because it undermines the practical value of the plea and complicates proceedings.
Guilty‑plea discounts in murder: Credit for a guilty plea reduces the minimum term. The credit is usually lower than in non‑murder cases and can be reduced further for very late pleas. While percentages are typical, courts may instead specify an absolute number of years if that better fits the justice of the case.
Diminished responsibility: A partial defence that, if proved, reduces murder to manslaughter where an abnormality of mental functioning substantially impaired the offender’s responsibility. Here, no expert ultimately supported it.
Parole Board role: Even after the minimum term expires, the offender is only released if the Parole Board decides it is no longer necessary for public protection to detain them.

Discussion of the Aggravating and Mitigating Features

Principal Aggravating Features (as found)

Sexual assault contemporaneous with the murder (inherent in the 30‑year start but informing seriousness).
Extreme, merciless violence and terror; significant restraint while conscious; catastrophic head injuries; disposal into water while still alive.
Concealment and clean‑up efforts (bleach, disposal of clothing and possessions, removal of underwear, leaving boots near the body), and silence causing a distressing delay in locating the body.
Alcohol consumption prior to the attack.
Targeting a lone woman in an isolated area, causing substantial public concern about women’s safety, with an express judicial warning against double counting given the high starting point.
Feigned psychosis post‑offence designed to influence outcome and complicate proceedings (treated by the Court of Appeal as a serious additional aggravator).

Mitigating Features (as found)

Youth (20 at the time of the offence), lack of prior convictions.
Diagnosed personality disorder and traumatic childhood experiences, with the judge finding a marginal effect on self‑control and allowing only a modest reduction for culpability.

Why the Sentence Was Unduly Lenient

The Court of Appeal concluded the judge fell into error in two respects:

Balancing exercise: Given the distinct and powerful aggravation—most notably the feigned psychosis—the aggravating factors clearly outweighed mitigation. A 30‑year term pre‑plea did not sufficiently mark the seriousness; 33 years was appropriate.
Plea credit: A 15% reduction unduly rewarded a late plea whose utilitarian value was diminished by manipulative conduct. The Court substituted a two‑year absolute deduction to better reflect justice and the guideline’s flexibility.

Practical Implications for Future Cases

Prosecution strategy: Where there is evidence of feigned psychiatric symptoms designed to influence the justice outcome, prosecutors should treat and argue this as a serious aggravating factor both on seriousness and in calibrating plea credit.
Defence approach: Advancing accounts or conduct later shown to be knowingly false (or feigned illness) may significantly worsen the sentence and erode plea credit. Candid, early engagement remains the safest route to maximising any reduction.
Judicial sentencing method: Judges may explicitly quantify plea credit in years rather than percentages in murder, especially where late pleas and procedural complexities alter the traditional utilitarian calculus.
Expert evidence and malingering: A negative malingering screen is not dispositive. Courts can and will draw robust inferences from the full evidential matrix (behavioural functionality, timing, inconsistencies), and can find feigning even where some clinical data do not detect it.
Women’s safety and vulnerability: Targeting lone women in isolated settings will continue to be treated as aggravation, reflecting both the vulnerability of the victim and wider public concern, while respecting the prohibition on double counting.

Conclusion

R v Van‑Pooss makes two clear contributions to sentencing law in murder cases:

Feigning psychosis is a serious aggravating factor. Where the offender cynically fakes psychiatric symptoms to pursue an unjust outcome and to complicate proceedings, courts may uplift beyond the 30‑year Schedule 21 starting point and sharply constrain guilty‑plea credit.
Flexibility in quantifying plea credit. In appropriate cases, especially in murder with complex procedural histories, the appellate court may move away from strict percentage reductions and apply an absolute deduction that better captures the real utility and fairness of the plea.

More broadly, the decision reinforces the careful balance at the heart of Schedule 21: guarding against double counting while recognising and responding robustly to distinct, additional aggravation. It underscores that youth and personality disorder are relevant but not determinative; where brutality, manipulation of the process, and targeted vulnerability are present, they will be outweighed. The substituted minimum term of 31 years (less remand) reflects the gravity of the offending, the offender’s post‑offence conduct, and the utilitarian value of the plea as properly assessed in context.