Human Rights and Prisons

7.4 Segregation

Law and policy framework

The Corrections Act provides for the segregation of prisoners for the purposes of: medical oversight (s60), protective custody (s59(1)), and security, good order or safety (s58).
Segregation linked to medical oversight can be undertaken to assess or ensure a prisoner’s mental or physical health (including the risk of self-harm). If this segregation is undertaken, the prisoner and chief executive must be informed, and given the reasons for segregation, in writing. Decisions to end segregation must be made by a medical officer. During segregation, the prisoner must be visited by a health professional at least once a day (twice a day if the prisoner is viewed as at risk of self-harm).
Protective custody segregation can be undertaken on a voluntary or a directed (non-voluntary) basis. Protective segregation may be instigated where: the prisoner requests it and the manager considers it is in the best interests of the prisoner; or the manager is satisfied that the safety of the prisoner has been put at risk by another person and there is no reasonable way to ensure the safety of the prisoner without giving the direction. There will only be a small number of prisoners placed on non-voluntary segregation.
The segregation of prisoners for the purpose of good order and discipline can be undertaken if a prison manager is of the opinion that a prisoner endangers prison security, good order or the safety of another person. The prisoner, and Chief Executive, must be informed of this decision and the reasons for it. Prisoners can be segregated, on this basis, for extensive periods. While the initial order – for up to 14 days segregation – is made by the prison Manager, the Chief Executive can make monthly extensions for up to three months. Decisions to segregate for more than three months may be approved by a Visiting Justice, who must thereafter review the segregation direction every three months. It appears that the longer a prisoner is held under this segregation order, the less able they are to receive a review of their situation.
Corrections Regulations specify that the treatment of segregated prisoners should be under the same conditions as other prisoners (as far as practicable and consistent with the purposes of the segregation) (r62). Segregated prisoners should also retain their access to activities and property (r62(2)). Their minimum entitlements may, however, be affected (r62(3)).
Prisoners can also be subject to cell confinement, as a penalty for disciplinary offences (ss 128-131). Cell confinement of up to seven days may be imposed by a hearing adjudicator, while a Visiting Justice has the power to impose a penalty of cell confinement of up to 15 days.
While in cell confinement, prisoners may be denied some of the usual minimum entitlements: the right to private visitors, to make telephone calls, to use other forms of communication, and to access information or education (s69(4)). Regulations (r154-157) detail that a medical officer must be notified reasonably promptly after a prisoner has been placed on cell confinement; and that the prisoner must be visited daily by the prison manager or authorised staff officer. If a young prisoner is subject to segregation or cell confinement, they may nominate a person (parent, family member or other adult) who must be informed as soon as practicable of the segregation/cell confinement and the reasons for it (r183).
Cells used for cell confinement (set out in schedule 6 of Regulations) must include: natural lighting, appropriate heating, fresh or conditioned air, artificial lighting controlled only from outside the cell, ligature-free furniture and fittings, fire detector and a window that allows a complete view in from outside.

Issues

At an international level, segregation has often involved prolonged solitary confinement. This has been subject to concerns from a range of international bodies (see Scharff Smith, 2009):

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  The UN Basic Principles for the Treatment of Prisoners states that ‘the abolition of solitary confinement as punishment, or to the restriction of its use, should be undertaken and encouraged’ (principle 7).
  

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  The UN Committee against Torture (CAT) has criticised isolation practices and recommended that ‘the use of solitary confinement be abolished…or at least that it should be strictly and specifically regulated by law (maximum duration, etc) and that judicial supervision should be introduced’ (Visit Report, Denmark, 1 May 1997, para 186).
  

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  The UN Committee on the Rights of the Child has recommended that solitary confinement should not be used against children (CRC/C/15/Add273, Denmark, 30 September 2005, para 58a).
  

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  The UN Human Rights Committee has indicated that prolonged solitary confinement can be a breach of Article 7 (that prohibits torture, cruel, inhuman or degrading treatment) and Article 10 (the right to be treated with humanity and dignity) of the ICCPR (Human Rights Committee, General Comment, 20/44, 3 April 1992).
  

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  The European Committee for the Prevention of Torture (CPT) has stated, over time, that solitary confinement can amount to inhuman and degrading treatment. The CPT has stressed the importance of securing a high level of social contact for isolated inmates.
  

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  The UN Special Rapporteur on Torture 2008 (General Assembly Report – A/63/175:80) has argued that ‘the use of solitary confinement should be kept to a minimum, used in very exceptional cases, for as short a time as possible, and only as a last resort. Regardless of the specific circumstances of its use, effort is required to raise the level of social contacts for prisoners: prisoner-prison staff contact, allowing access to social activities with other prisoners, allowing more visits and providing access to mental health services’.
  

More generally, segregation is subject to requirements of necessity. The UN’s Standard Minimum Rules for the Treatment of Prisoners provide that discipline shall be applied ‘with no more restriction than is necessary for safe custody and well-ordered community life’ (SMR27). Robinson (2002:216) outlines that the ethos of proportionality is also central to segregation practices. Aside from being segregated, the prisoner should not experience any reduction in regime provisions, in terms of diet, visits, and so on.

From international literature, there are concerns – from prisoners and their advocates – about actual practices of segregation (Carlton, 2009; OICSWA, 2002; Robinson, 2002; Scraton and Moore, 2005). Issues relate to: the denial of established privileges; inconsistent and punitive treatment by prison officers; the rise of anxiety, depression, self harm and suicide ideation among segregated prisoners; and, lower levels of scrutiny and monitoring of segregation practices. A principal concern relates to the idea that segregation units can become a ‘prison within a prison’.
In New Zealand, the Taunoa judgment established that the prisoners concerned did not receive adequate information about why they were in segregation, and the conditions of isolation amounted to punishment. The loss of entitlements for those segregated prisoners was deemed to be unjustified.
Following a review, Prison Inspectors recorded (Department of Corrections, 2009c:139) that the current segregation system is ‘managed in a conscientious manner’. While ‘some minor recording matters’ were apparent, segregation was generally ‘well documented’ and the needs for segregation were ‘appropriate’. The Inspectors did note that ‘At smaller prison sites, limited segregation facilities may at times result in reduced opportunities for directed segregation prisoners in terms of unlock hours and access to some mainstream facilities’. Again, further research on these practices would be appropriate.