Unsentenced and sentenced prisoners: the differences in prison

There are two major categories of prisoners: sentenced prisoners and those on remand. This fundamental distinction is derived from the United Nations International Covenant on Civil and Political Rights (1966) (UNICCPR).

Unsentenced prisoners

Unsentenced prisoners – also known as remand prisoners – are held in custody before their trial on criminal charges; in strict legal theory, remand prisoners are only held to guarantee that they are present for their trials; the law does not regard their imprisonment as punishment

Remand prisoners 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 How bail works).

Remand prisoners are considered innocent until proven guilty and “must be treated in a way that is appropriate for a person who has not been convicted” (s 22(3)). Therefore, remand prisoners are allowed more rights and are subject to fewer restrictions than sentenced prisoners. For example, remand prisoners can have more visitors and make more telephone calls than sentenced prisoners. And while remand prisoners can work while in prison, they do not have to work. However, the rights and restrictions placed on remand prisoners are subject to the minimum restrictions that ensure the prisoners’ safety, and the good order, security and management of the prison.

The UNICCPR provides that remand and sentenced prisoners should be held in separate facilities. The Charter Act also requires that remand and sentenced prisoners be separated and may only intermingle where “reasonably necessary” (s 22(1)).

In general, remand prisoners are held in special remand facilities or in different sections of prisons from the sentenced prisoners. However, there may, in practice, there may be a degree of intermingling between remand and sentenced prisoners, especially when the prison system is overcrowded. Intermingling can also occur, as appropriate, in specialist prison units (e.g. units for young adults and vulnerable prisoners) to cater for the needs of the individual prisoner.

Also, a notable difference between sentenced and unsentenced prisoners is that unsentenced prisoners may wear their own clothes (provided the clothes meet the prison’s requirements), or they can elect to wear prison clothing (s 47(1)(e), (d) Corrections Act, respectively).

Sentenced prisoners

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

Sentenced prisoners are obliged to wear prison clothing, which is issued to them when they enter the prison. The clothing provided must be suitable for the climate and for any work undertaken by the sentenced prisoner (s 47(1)(d) Corrections Act).

Prisoners’ own clothing and other items taken from them during reception are held by the prison authorities. A full receipt must be given for these items within seven days. Under the Corrections Regulations, prison authorities can refuse to store clothing and personal effects for health reasons, or due to the nature and quantity of the items (e.g. an item is too large to store.) In dealing with a prisoner’s personal property, prison staff must follow specific requirements. Stored items must be returned to the prisoner when they are released.