Susan Couch's deserved victory

I didn't think Susan Couch would win her battle in court. I'm very glad she hasn't had to.

The first and most obvious thing to say about the Department of Corrections' decision to pay Susan Couch $300,000 in settlement of her claim against it for the shameful way it handled William Bell's release from prison is "hooray!" Whatever the legal ins and outs (and I'll get to them shortly), this is the just and right result.

The second is to recognise the courage, determination and sheer bloody-mindedness of three people - Brian Henry, Garth McVicar and (of course) Susan Couch herself. In particular, let me say that while I've had cause to be critical of Garth McVicar's views on criminal justice and penal policy, credit needs to go where credit is due. He and the Sensible Sentencing Trust have been at their very best in this case - good on them.

But the third thing to say about this case is that, despite the government paying over what is a pretty large amount of money to put an end to it, we still don't know what would have happened had it gone to trial. As I noted when the Supreme Court (finally) gave Susan Couch a green light to bring her case before the High Court;

Couch will have to show that the Corrections Department (in the sense of at least some of its employees) knewthat the careless way it was managing Bell's parole posed a physical risk to people like her, but that it just didn't care about that risk and continued to act in the same way. Not should have known the risk, or would have known the risk had it thought about it, but actually knew of the risk.

Of course, whether Corrections had such knowledge is a factual question that can only really be answered at trial. But it's going to be a pretty tough test to meet – far harder than the one the Privy Council previously laid down. Which is why I suspect that Couch's victory in the Supreme Court may well end up costing her any hope of seeing any money from this whole sorry saga.

I'm very glad to see I was wrong about the last part - that the legal hurdles put in front of Susan Couch didn't trip up her up quest for some sort of justice. But equally, I still think that had this case been tried, the legal outcome would have been doubtful at best.

However, doesn't the fact that Corrections has given Susan Couch a whole lot of money to end her claim indicate that her case was a good deal stronger that? Well, maybe ... perhaps there was some evidential smoking gun that made the lawyers advising the Corrections Department say "we're probably going to lose this - you may as well just pay her out now".

That might be the case ... or it might not. Because, people settle cases for all sorts of reasons. Sometimes it actually is cheaper to pay off the other side than it is to spend money on lawyers to fight a case, even when you know that you can win it. Sometimes the very prospect of the publicity that a case will bring (as well as the embarrassing information that may emerge during it) makes it worth paying the other side to go away. And sometimes you might look at a case and recognise that, whatever the formal legal position, the right thing to do is pay up because you know you did wrong.

So we'll need to be careful in treating Susan Couch's case as some sort of benchmark or precedent for future actions. For one thing, we should all fervently hope that there isn't another person as clearly worthy of a payout as Susan Couch was in the future. Hers was a truly exceptionally bad experience that was brought about (at least in part) by a clearly poorly performing department. And even if there is a future case of a similar magnitude to Susan Couch's, the fact the right thing has been done here doesn't necessarily mean it will be done next time.

Rather, next time the issue might actually end up in front of a court. And we still don't know what will happen then.