Imprisonment and the rights of people in prison

There are two major categories of people in prisons: those who have been sentenced and those who are unsentenced on remand. This fundamental distinction is from the International Covenant on Civil and Political Rights (1966) (ICCPR).

Unsentenced people in prisons – also known as people on remand – are people detained in custody but who have not been found guilty or plead guilty to the offences with which they are charged. People on remand have either not applied for bail, or have been refused bail, or cannot meet the bail set or provide the necessary surety, or are unable or unwilling to meet the bail conditions (see Chapter 3.6: How bail works).

Theoretically, people on remand should be considered innocent until proven guilty. The Human Rights Charter states that people on remand ‘must be treated in a way that is appropriate for a person who has not been convicted’ (s 22(3)). However, sentenced people in prison and people on remand are both referred to as ‘prisoners’ in the Corrections Act, which does not provide for different standards of rights for both groups.

The ICCPR provides that remanded and sentenced people in prison should be held in separate facilities. The Human Rights Charter also requires that remanded and sentenced people in prison be separated and may only intermingle where ‘reasonably necessary’ (s 22(1)).

In practice, intermingling between remanded and sentenced people in prisons occurs often, especially when the prison system is overcrowded or when people are incarcerated in units designated for particular cohorts, for example, units for young adults or people in prison who require protection.

The time a person spends on remand must be taken into account and deducted from a sentence of imprisonment or detention (subject to a small number of exceptions).

Sentenced people in prisons are either serving sentences imposed by the courts or are imprisoned because they have not paid their fines. There are also people in prison who have been convicted and sentenced who are awaiting appeals and have been refused bail, as well as people in prison who have been convicted but not yet sentenced.