In general, there are two major categories of prisoners: sentenced persons and those on remand. This fundamental distinction is derived from the United Nations International Covenant on Civil and Political Rights (1966) (“UN ICCPR”).
1 Sentenced prisoners are either serving sentences imposed by the courts or imprisoned because of non-payment of fines. There will also be prisoners who have been convicted and sentenced who are awaiting appeals and have been refused appeal bail, as well as prisoners who have been convicted but not yet sentenced.
2 Remand prisoners are held prior to their trial on criminal charges. They have not applied for bail, been refused bail, cannot meet the bail set or provide the necessary surety, or are unable or unwilling to meet the conditions required (see How bail works). At present, a person who has had bail set may be bailed out of remand facilities between 8 am and 8 pm. However, it would be advisable to check with the prison authorities beforehand.
In strict legal theory, people held on remand are held only to guarantee that they are present for their trials. The relevant provision of the ICCPR provides that remand and sentenced prisoners should be held in separate facilities. Despite what remand prisoners themselves may feel, the law does not regard their confinement as punishment, and therefore allows them a fuller set of rights – and imposes fewer restrictions on them – than it does in the case of convicted prisoners. If they are eventually convicted, the time spent in prison on remand may be credited as part of the sentence served (s 18 Sentencing Act).
In general, remand prisoners are held in special remand facilities or in different sections of prisons from those of other prisoners. There may, in practice, be a degree of intermingling between remand and convicted prisoners, especially when the prison system is overcrowded. Intermingling can also occur, as appropriate, in specialist prison units, such as for young adults and vulnerable prisoners, to cater for the needs of the individual prisoner. The Charter Act requires that accused and convicted persons be separated and may only be intermingled where “reasonably necessary” (s 22(1)). In addition, a person who is on remand “must be treated in a way that is appropriate for a person who has not been convicted” (s 22(3)).