Solitary Confinement (Qld)
When a person is held in solitary confinement for a prolonged period while they are in prison, this may have a range of consequences. This page outlines what solitary confinement is, how it may affect you, and how it may affect your criminal proceedings.
What is solitary confinement?
Solitary confinement occurs when a person is confined to their cell for at least 22 hours a day and has little contact with others.
It is common for a person who is in solitary confinement not to have a window, to have little access to fresh air or natural light, to have limited access to services or programs, and to have reduced privileges such as visits and phone calls.
A person may be held in solitary confinement because:
- they are considered a risk to themselves
- they are considered a risk to others
- they are considered to be at risk from others
- they are considered to be a risk to security.
Prisoners who are in solitary must be given access to an outside area in which they can exercise for at least two hours a day, unless a medical practitioner advises against this.
Solitary confinement may be used as a punishment for a breach of discipline period of up to 7 days. However, prisoners may be kept in solitary confinement for much longer periods when an order is made under the Corrective Services Act 2006.
Prolonged solitary confinement
To keep a person in solitary confinement for longer than seven days, there must be either a maximum security order or a safety order. These orders are made by the chief executive of corrections.
A maximum security order is made under section 60 of the Corrective Services Act 2006. It might be made because:
- there is a high risk of the prisoner attempting to escape
- there is a high risk of the prisoner killing or seriously harming a person
- the prisoner is a substantial threat to the security and good order of the prison.
A safety order is made under section 53 of the Corrective Services Act 2006. It may be made because:
- there’s a risk of the person harming himself
- there’s a risk of the person harming someone else
- the order is necessary for the safety and good order of the prison.
A safety order may be made for a period up to one month, whereas a maximum security order may be made for a period of to 6 months. However, in both cases, consecutive orders can be made meaning that a prisoner may be held in solitary confinement for a much longer time.
Human rights
Solitary confinement can have a range of mental and physical health effects. Its use on prisoners has long been recognised as a human rights issue. Solitary confinement for a period of more than 14 days is contrary to international law.
The UN Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela rules) sets out the principles for when solitary confinement should be used. These include:
- that children must not be treated to solitary confinement
- that indefinite or prolonged solitary confinement must not occur
- that solitary confinement must only be used as a last resort and in exceptional circumstances
- that solitary confinement must not be used for prisoners who have physical or mental disabilities likely to be exacerbated by it.
These principles of international law are not binding on Queensland law. However, Queensland does have a Human Rights Act which contains a right to humane treatment when deprived of liberty.
Applying for bail
If a person is in solitary confinement in prison, this should be raised if they apply for bail. There are a number of ways in which a person’s solitary confinement may be used to support their bail application.
Firstly, if a person is being held in solitary because they are at risk from other prisoners, it could be argued that their detainment on remand is more onerous for reasons that may be out of their control.
Secondly, if a person knows that if they return to prison they will be held in solitary confinement, it could be argued that their desire to avoid being returned to solitary confinement means that they are more likely to comply with their bail conditions.
Thirdly, where a person has been refused bail and is subsequently placed in solitary confinement, it could be argued that there has been a material change in circumstances which justifies another bail application to the same court.
Solitary confinement and sentencing
If a person is likely to be held in solitary confinement if they are sentenced to prison, this should be raised when they are sentenced. It may be argued that solitary confinement affects the appropriate sentence for a person to receive in the following ways:
- Time spent in solitary confinement is more onerous than time spent in prison generally as it involves reduced access to programs and services and limited contact with other people. A defence lawyer may argue that a shorter term of imprisonment is appropriate for this reason.
- Time spent in solitary confinement is less productive than time spent in prison generally, with less opportunity to pursue study or rehabilitative programs. A defence lawyer may argue that time spent in prison has less benefit for this reason.
If you or your lawyer are arguing that you should receive a more lenient sentence on the basis of being held in solitary confinement, the court will need to know all the details surrounding your situation. This will include the date your solitary confinement started, the reasons for it, and the conditions under which you are being housed. If a person is in solitary confinement because they have committed offences in prison, this will generally not be considered as a reason to impose a shorter sentence.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.
Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.