On Wednesday, the appeals of Blackshaw and Sutcliffe, the so-called ‘Facebook Rioters’ were dismissed in The High Court, and their prison sentences upheld. Most commentators seemed to accept judicial wisdom and that the prison term imposed – four years – was about right. I don’t agree. The sentences are excessive and disproportionate.

In sentencing, the courts are concerned with punishing a person for the crime which they have already committed and for the impact their crime has on its victim. For example, a burglar who enters a house during the night when an elderly person is sleeping in her bed, will be sentenced more severely than a burglar who enters an empty commercial premises and quite rightly so. In the case of the recent appeals, the two men were sentenced for what they had done but they were also additionally sentenced for what others may do in the future as a deterrent.

I take issue with this type of sentencing for two reasons. Firstly, that future action may never take place thus making the sentence meaningless and perhaps in some eyes unjust. Secondly, how do we know? How would we ever know if deterrent sentences work? Was that future crime deterred? Or was it never actually to take place? In the fairly recent past we have seen ‘gut reaction’ sentencing as the result of government policy to appease voters. Excessive sentences were to be imposed for the theft of mobile phones, for the carrying of knives, and for street robberies, as each became fashionable and worthy of headlines.

For society as a whole, deterrence is probably a good theory but when it comes to the individual they up carrying the can. I’m not sure how potential criminals are deterred from committing offences. I am not convinced that sentencing policy works at street level.

I asked a number of my young criminal clients what they thought of the prison sentences imposed for the two men convicted of encouraging rioting through Facebook. Perhaps unsurprisingly, not one of them had heard of the case (let alone the jail terms imposed). Could they really be said to be deterred from similar activity in the future? The judge in this appeal noted that a sinister feature of these cases was the ‘abuse of modern technology for criminal purposes… the incitement of many by a single step’. Well yes, that’s the Internet for you. But was this a desired consequence of hitting ‘send’ or an unfortunate by-product of a ‘spontaneous and monumentally foolish act’. In the cases of Blackshaw and Sutcliffe, they will now have a while to reflect on that one.