SECOND DIVISION, INNER HOUSE, COURT OF SESSION
 CSIH 41
Lord Justice Clerk
Lord Drummond Young
OPINION OF LORD CARLOWAY,
the LORD JUSTICE CLERK
in the reclaiming motion
PHILIP ALLAN MAIN
Petitioner and Reclaimer;
Act: Dewar QC, Pirie; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Alt: Duncan QC; Scottish Government Legal Directorate
22 May 2015
 This reclaiming motion (appeal) concerns the legality of the review provisions applicable to indefinite notification requirements under the Sexual Offences Act 2003. The system of review was introduced by the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2011 (SSI No.45) as a consequence of R (F) v Justice Secretary  1 AC 331. The petitioner contends that the absence of a right of review until 15 years after his release from prison (2003 Act, s 88B(1)(a) and (2)) is incompatible with his right of respect for his private life in terms of Article 8.1 of the European Convention. The petitioner does not attack the introduction of the review provisions in the 2011 Order. Rather, he contends that section 82(1) of the 2003 Act, under which the notification requirements were imposed on him for an indefinite period, is incompatible with his Article 8 right in the absence of a more extensive review facility. Therefore, it is argued, it was ultra vires of the respondents (Scotland Act 1998, s 57(2)) to bring section 82(1) into force, by virtue of the Sexual Offences Act 2003 (Commencement) (Scotland) Order 2004, without greater provision for review than that (subsequently) created by the 2011 Order.
 The Lord Ordinary heard a debate restricted to the question of whether the notification requirements were compatible with the petitioner’s Article 8.1 right. The intention was to consider whether the review provisions were adequate to remedy the mischief, identified in R (F) (supra), that indefinite notification requirements, without the possibility of review, constituted a disproportionate interference with that right. The Lord Ordinary held that the requirements were a proportionate interference given the review provisions. The issue is whether he was correct to do so or whether, on the contrary, the requirements are disproportionate in Convention terms.
 On 17 February 2005, at the Sheriff Court at Peterhead, the petitioner was convicted of: (1) lewd, indecent and libidinous practices towards two young boys aged 10 and 11; (2) a breach of the peace involving the covert filming of children; and (3) three charges of contravening the Civic Government (Scotland) Act 1982, section 52(1)(a); by taking indecent photographs of children at three different loci. The offences occurred in 2003 and 2004. On 12 May 2005, the petitioner was sentenced to 3 years probation on the lewd practices charge, consecutive periods of 4 months imprisonment on each of the breach of the peace and two of the statutory charges and an extended sentence of 36 months on the third statutory charge, of which 4 months was to be served in prison, consecutive to the other three periods. The total custodial term was thus 16 months. The petitioner has subsequently been sentenced to two 2 year terms for breaches of a sexual offences prevention order (SOPO) made in terms of the 2003 Act.
 The petitioner automatically became subject to the mandatory notification requirements for an indefinite period (2003 Act, ss 80 and 82). This is because the whole of the extended sentence is treated as custodial (Criminal Procedure (Scotland) Act 1995, s 210A(2); see R (Minter) v Chief Constable of Hampshire Constabulary  1 WLR 1157). As an adult offender, a review must be carried out “no later than” 15 years from the date of conviction (ss 88C(1), 88B(1) and 82(6)), disregarding periods spent in custody in respect of the index offence (s 88B(4)).
The notification requirements and provision for review
 The statutory notification scheme requires the petitioner to inform the police of certain personal information upon his conviction (s 83). This includes his home address, any other places where he regularly stays, and any passport details. The petitioner must also notify the police of his bank or credit account details (Sexual Offences Act 2003 (Notification Requirements) (Scotland) Regulations 2007 (SSI No.216)). When providing the information, he may be photographed. Fingerprint, DNA and other samples may be taken (s 87). He must advise of changes to the information provided, including the date of his release from prison (s 84), and of any intended travel outside the United Kingdom (s 86 and see the Sexual Offences Act 2003 (Travel Notification Requirements) (Scotland) Regulations 2004 (SSI No.205)). He must provide the address of any place at which he has stayed for a period of 7 days or more (s 84). It is accepted that the legislation requires periodic re-notification every year, even if this is not exactly clear from the detailed statutory scheme (s 85(1) and (5)). Notification, other than in the case of travel abroad, requires the petitioner’s personal attendance at a police station (s 87). Failure to comply with the requirements without reasonable excuse is a criminal offence (2003 Act, s 91(1)(a)) punishable by up to 5 years imprisonment (s 91(2)(b)).
 At the stage of review of the requirements, the chief constable must either make a notification continuation order or tell the offender that he will cease to be subject to the requirements (s 88C(1)). A notification continuation order subjects the offender to a further period of not more than 15 years of notification (s 88C(2)). It may be made only if the chief constable is satisfied, on the balance of probabilities, that the offender poses “a risk of sexual harm to the public” (s 88(3)). It must state the reasons for it being made and for the selection of the continuation period (s 88C(5)). A further review will occur prior to the expiry of that period (s 88E). An appeal from the chief constable’s decision lies to the sheriff (s 88G). Power is conferred on the respondents (s 88H) to amend the period of review. This power has not been exercised.
 Similar review provisions extending to England and Wales have been made by the Sexual Offences Act 2003 (Remedial) Order 2012 (SI No.1883) but these, in contrast to the Scottish Order, place an onus on the offender to demonstrate lack of future risk (s 91C(2)).
 Immediately after R (F) (supra), in terms of section 14 of the Convention Rights (Compliance) (Scotland) Act 2001, the Government introduced an emergency measure (Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 (SSI No. 370)) to remove the incompatibility of indefinite notification requirements which then existed. Public consultation followed (2001 Act, s 14(2)). The Government were briefed by their Justice Analytical Services department on the evidence about recidivism among convicted sex offenders (the briefing). This included a summary of 3 studies on the subject: McCann et al (2004); Ackerley et al (1998); and Prentky et al (1997). The McCann paper contained a table as follows:
Table 2. Reconviction rates
Type of reconviction
Sexual cumulative number (%)
Violent cumulative number (%)
General cumulative number (%)
 The briefing concluded:
“… the available evidence suggests that sex offenders remain at risk of recidivism for many years following release from custody (and this applies even to those serious sex offenders who were considered, at time of release, to present an acceptable level of risk). Furthermore, Ackerley et al’s study reveals that, even among a wider group of sex offenders (and not just those who are imprisoned for their offences) there is still a small proportion of convicted sex offenders who will be reconvicted of a serious sexual and/or violent offences (sic) for the first time even after 10 years have elapsed.
If our over-riding consideration is public protection, then the evidence … could be used to justify a right of review … that takes effect only after a substantial period of time has elapsed. We have evidence from all three studies (that were considered to present the best available evidence) that the risk of attracting a new conviction for sexual offences persists for at least 10 years and from one study that it persists even beyond 20 years. However, the decision about exactly when a right of review takes effect may have to be made by balancing pragmatic and civil right considerations.”
The briefing recommended that further research was required in relation to young offenders. The Justice Analytical Services department have updated their briefing; thus enabling the Government to re-consider the review periods, if so advised.
 It was on the basis of the briefing that the Government selected the review period, in indefinite notification cases, of 15 years for adult offenders and 8 for children. The Government summarised their position thus:
“23. All of these studies analysed reconviction rates of convicted sex offenders over a follow-up period of 20-25 years. Analysis confirms that there is no evidence that a point can be reached at which a sex offender presents no risk of re-offending. However, approximately a quarter of sex offenders were reconvicted for a sexual offence within this time period, the majority (over 80%) of whom were reconvicted within ten years.
24. The proportion reconvicted increases to a third if all violent offences are considered rather than just sexual offences. Out of the most serious sex offenders (rapists and child abusers), 40% were reconvicted for a sexual offence within 25 years. However, the risk of reconviction is slightly lower for those convicted of a less serious sexual offence in the first instance.
25. Taking into account the evidence above and the existing fixed notification periods (the highest of which is 10 years for those sentenced to more than 6 months but less than 30 months), a review at 15 years appears to be a reasonable threshold for adults, striking the right balance between protecting the public and the right of the offender to a review.”
It is not unreasonable to surmise that “rapists and child abusers” are likely to form a substantial component of those sentenced to 30 months imprisonment or more.
 The observations made in the consultation exercise and the Government’s final position were annexed to an Executive Note which was made available to MSPs in conjunction with the draft 2011 Order, which itself essentially modified the emergency measure. This Note emphasised that the objective was Convention compliance (see paras 5 and 9). The Government explained (para 41) that the purpose of the new Order was “to provide a fair and proportionate … response to [R (F) (supra)]”. The Government advised that the new review procedure achieved that objective and was compliant with Article 8.
The decision of the Lord Ordinary
 The Lord Ordinary recorded ( CSOH 103) that the petitioner’s contention was reliant upon R (F) (supra); notably the reasoning that indefinite requirements were disproportionate in the absence of any provision for individual review (R (F) (supra) at paras 51, 52, 56 and 57).
 The Lord Ordinary observed that, whilst the notification requirements were capable of causing significant interference with the petitioner’s Article 8.1 right, there was a positive obligation on the respondents to take steps to reduce the risk to the general public from further offending by convicted sex offenders. The starting point in selecting a proportionate review period had been a consideration of the available evidence of recidivism amongst convicted sex offenders (briefing (supra); R (F) (supra), at paras 56 and 57). The evidence demonstrated that the risk of further sex offending by convicted sex offenders “persisted for a very substantial period after conviction”. It had been legitimate and necessary for the respondents to take account of that evidence and their actions had been both “objective and justifiable”. In particular:
“Whilst…the 15 year period imposed is arbitrary and, no doubt it might have been possible to have picked another period of time, it could not … be said to be an arbitrary period that was irrationally imposed.”
 In response to questioning, the petitioner had, according to the Lord Ordinary, suggested that an alternative period for a first review might be a year or two after the offender’s release from prison; once he had settled back into the community. The Lord Ordinary observed that this was “wholly unsupported” by the available material. The Lord Ordinary concluded that the respondents had struck a fair balance between the rights of convicted sex offenders and the interests of the public by selecting a period which was lengthy but was, critically, based upon a consideration of all available evidence related to the risk of reoffending. The period was based upon rational judgment.
 It was agreed that the notification requirements do constitute an interference with the petitioner’s Article 8 right. The issue was whether they were “necessary in a democratic society in the interests of … public safety” in terms of Article 8.2; that is to say whether they could be seen as proportionate to the aim pursued (Sunday Times v United Kingdom (1979) 2 EHRR 245 at para 62), judged objectively (R (SB) v Governors of Denbeigh High School  1 AC 100 at para 30) after a close examination of the justification proffered (Sinclair Collis v Lord Advocate 2013 SC 221 at para ). There had been no adequate consideration of the Convention rights issues by Parliament.
 The decision of the High Court of Justiciary in Hay v HM Advocate 2014 JC 19, which held that a 10 year notification period was Convention compliant, was not binding. It was inconsistent with R (F) (supra). The reasoning in Hay had been criticised as “difficult” in R (Irfan) v Secretary of State for the Home Department  QB 885 (at para 30).
 The Lord Ordinary had erred in his determination of proportionality. He had failed to consider whether provision could be made for an earlier review, as a less intrusive means of achieving the legitimate aim of the requirements (Bank Mellat v HM Treasury (No 2)  AC 700). The requirements were a grave stigma and amounted to an onerous restriction on the petitioner’s life (Hay v HM Advocate (supra); R (F) (supra) at para 44;  1 WLR 76 at paras 38-40). It was not a numbers game; in the sense that it could be said that 15 years was excessive, but 10 or 5 years was not. The offender should be able to apply for a review at any time after his release from custody, depending upon his particular circumstances.
 The lack of involvement of the petitioner in the decision making process until a review 15 years after his release from prison was insufficient to protect his legitimate interests. Thus the notification requirements were disproportionate to the aims of the 2003 Act (Principal Reporter v K 2011 SC (UKSC) 91 at para 41; R (B) v Crown Court at Stafford  1 WLR 1524 at para 23; R (Gudanaviciene) v Director of Legal Aid Casework  EWCA Civ 1622 at paras 64-7; Golder v United Kingdom (1975) EHRR 524 at para 35).
 The Lord Ordinary had erred in stating that it was not possible for a convicted sex offender to demonstrate that he no longer presented a significant risk of causing harm. This was an error of law (E v Secretary of State for the Home Department  QB 1044 at para 66; applied in Bova v Highland Council 2013 SC 510 at para 36). The contrary was uncontentious and objectively verifiable by reference to the provisions in England and Wales (2003 Act, s 91C(2)), which allow an offender to apply for a review on that basis (see also R (Commissioner of Police for the Metropolis) v Central Criminal Court  EWHC 179 (Admin) at paras 1 and 4). Information available from the publication “Mail online” demonstrated that some sex offenders in England were regarded as no longer posing a risk.
 The onus of demonstrating that the requirements were proportionate lay on the respondents (R (Aguilar Quila) v Secretary of State for the Home Department  1 AC 621). The respondents did not seek to justify the absence of an earlier review by reference to resources. Thus, the requirements were necessary only for so long as they could be justified by the risk of the petitioner committing further sexual offences. In the absence of evidence that demonstrated that it was not possible to identify some who posed no significant risk of reoffending, the absence of an earlier review was disproportionate. The reasoning in R (F) (supra) applied equally to the imposition of indefinite requirements without earlier review as it did to their imposition without any review whatsoever (cf fixed periods of registration: Hay v HM Advocate (supra), R (Irfan) v SSHD (supra)).
 In the absence of an earlier review, the requirements were disproportionate in that they applied indefinitely, automatically and indiscriminately (R (Aguilar Quila) v SSHD (supra); O’Donoghue v United Kingdom  53 EHRR 1; R v Shayler  1 AC 247; R (T) v Chief Constable of Greater Manchester Police  1 WLR 2515). It was disproportionate to maintain such interference over a lengthy period of time without an interim reassessment (Foldes v Hungary (2006) 47 EHRR 11 at para 36; Bessenyei v Hungary (App 37509/06, 21 October 2008), at paras 23 and 36; Makedonski v Bulgaria (App 36036/04, 20 January 2011) at paras 40 and 44).
 The Lord Ordinary had accepted that no purpose was served by the requirements being imposed in respect of persons who posed no risk, and that a person may cease to pose a risk due to age or physical disability. It was inconsistent and disproportionate to make it a necessary condition for review that at least 15 years should have passed (R (Catt) v Commissioner of Police of the Metropolis  UKSC 9 at paras 43-44, 76). The Lord Ordinary’s conclusion, that the review provisions struck a fair balance, because the risk of further offending persisted for a very substantial period after conviction and there was no known means whereby an individual could demonstrate that he did not pose a risk at some future date, ran contrary to the conclusion in R (F) (supra) on the same evidence.
 The petitioner had accepted that the requirements pursued the legitimate aim of preventing sexual offending and that they were rationally connected to that objective. There was no indication that the Lord Ordinary had misdirected himself on proportionality. There had been no dispute that the law was that stated in R (F) (supra) and R (Aguilar Quila) v SSHD (supra); Bank Mellat (supra) not having been decided at the time. The Lord Ordinary had considered the necessity of the Order to achieve its purpose. He had noted the need to strike a balance and had concluded that the requirements, with the review provisions, were proportionate. Due deference required to be accorded to the views of a democratic legislature.
 The equivalent provisions in England and Wales had not been analysed in detail before the Lord Ordinary, but he had been aware of them. They put the onus on the offender, at the stage of review, to prove that a requirement was not necessary. It was not suggested that offenders would never be able to discharge the onus. When discussing risk, the Lord Ordinary was observing only that an individual could not demonstrate that he would fall outwith the statistical cohort of re-offenders.
 The respondents, as the democratically elected Government, and the Parliament had required to make a policy choice. They had done so on the basis of evidence ingathered. It was a matter for them to determine where the line ought to be drawn (R (Animal Defenders International) v Secretary of State for Culture, Media and Sport  1 AC 1312 at para 33; R (Carson) v Secretary of State for Work and Pensions  1 AC 173 at para 91). It was not for the courts to substitute their own views (Bank Mellat (supra) at para 75). The question was not whether a slightly shorter period could have been selected, but whether the limitation of the Article 8 right was unreasonable. The petitioner had produced no evidence to justify a “review on demand” scheme in terms of its effectiveness. He had not addressed whether that struck a fairer balance. His approach contained 3 errors: (i) it failed to take account of the respect which required to be shown to the legislature; (ii) it depended on an erroneous view that the period of 15 years was a blanket measure; and (iii) it reversed the onus, whereby it was said to be for the respondents to prove a negative; that there was no less burdensome measure.
 Review on demand created uncertainty and undermined confidence in the system. There were 3763 sex offenders subject to notification at liberty. These included 1156 subject to indefinite requirements. There were 1050 sex offenders in custody, 729 of whom were indefinite notification subjects. Any system of review on demand would clearly have resource implications.
 R (F) (supra) did not support a contention that an offender needed to be involved in the decision making process. No right to review existed where the notification period was finite. That had been deemed Convention compliant (Hay v HM Advocate (supra), followed in Ashraf v HM Advocate  HCJAC 59), as had the terrorism offence equivalent (R (Irfan) v SSHD (supra)) and the provisions for release on licence (Lee v Secretary of State for Justice  EWHC 4483 (Admin)).
 The Act discriminated according to the level of sentence and the results of any review. R (F) (supra) had made it clear that an automatic indefinite requirement did not per se fall foul of Article 8. It was an inevitable feature of legislation that it laid down general rules (R (Animal Defenders International) v SSCMS (supra) at para 33). The state was entitled to adopt general measures applicable to pre-defined situations, even if this resulted in hard cases (Animal Defenders International v United Kingdom (2013) 57 EHRR 21 at paras 107-108 and 0I-4). The state had an obligation to protect the public from sexual offending (Stubbings v United Kingdom (1996) 23 EHRR 213 at para 62). A general measure may be a more feasible means of achieving an objective. Given the difficulty in identifying re-offenders in advance, such a measure provided for certainty.
 The maintenance of an interference automatically applicable over a lengthy period of time without review was not disproportionate. The petitioner’s authorities did not support the opposite proposition. R (F) (supra) recognised the scope for Parliament to set a high threshold for the time of review. The selection of a time period was not an inappropriate criterion.
 The distinction between the respective roles of court and legislature had to be respected. It was not for the court to take over the role of decision maker and to substitute its own opinion. Respect had to be afforded to the elected body as best suited to protect the interests of the public (AXA General Insurance Co v Lord Advocate 2012 SC (UKSC) 122 at para 49; Bank Mellat v HM Treasury (No.2) (supra) at para 71). The degree of restraint used by the court depended upon context; the nature and severity of the infringement compared with the importance of the measure. It was difficult to achieve balance in a world of darkness. There would be a range of options open.
 On the exercise of judgment, 3 aspects fell to be noticed. First, the procedure involved public consultation and consideration by the Subordinate Legislation and the Justice Committees, as well as Parliamentary approval. Secondly, there had been an evidential base for the selection of the review periods. The purpose of notification requirements was the prevention, deterrence and detection of crime; not just sexual crime. Thirdly, a balance was struck in accordance with the evidence. The infringement was “relatively moderate” (R (Irfan) v SSHD (supra) at para 14).
 In relation to “blanket measures”, the notification requirements distinguished between different offenders. The provisions for review were targeted at the most serious. It was accepted that the onus was on the state to justify a measure as “necessary”, but that did not mean “indispensible”. It was not for the respondents to prove that there was no less burdensome measure which might have been used. The allowance of general measures was inimical to such a proposition. Procedural fairness was a feature only of situations in which a procedure existed.
 The only substantive issue is whether the selection of 15 years, as the minimum period during which indefinite notification requirements will apply to adult offenders, is a disproportionate response to the problem of repeated sex offending because it is not “necessary … in the interests of public safety … for the prevention of … crime …” in terms of Article 8.2 of the European Convention. Before analysing that issue, it is helpful to keep in mind certain essential facts. The first is that the 15 year review provisions, in the context of an indefinite period of notification, apply only to a narrowly defined group of persons. First, they must have been convicted of a sexual crime. Secondly, they must have been an adult at the date of conviction. Thirdly, they must have been sentenced to at least 30 months or more. These criteria might be described in more general terms to the effect that the requirement applies only to those adults who have been convicted of a serious sexual offence. Child offenders and those attracting shorter sentences are treated in a less restrictive way. In this respect, the requirements apply to offenders in a discriminating fashion. The criminal courts can have regard to the effect of the notification requirements when selecting an appropriate sentence (HM Advocate v KH 2014 SCCR 485, LJC (Carloway) at para ). The length during which the requirements will apply is a relevant factor in the sentencing process. It may, for example, effect a decision on the length of any custodial term.
 The second essential fact is that, before selecting the review period, the respondents and the Parliament had before them three key studies, each of which examined the risk of re-offending among convicted sex offenders. It is not necessary to repeat the evidence outlined above. In summary, it made it clear that there was no time at which it could be concluded that an offender presented no risk of re-offending. A large proportion of convicted sex offenders, especially serious sex offenders, were re-convicted of crimes within a period of 25 years. Most important, it demonstrated that a significant number re-offended after 10 years.
 In his dissenting Opinion in Mellat v HM Treasury (No. 2)  AC 700, Lord Reed analysed (paras 71 et seq) the essential elements in an assessment of proportionality. He emphasised the differences between the margin of appreciation afforded to national legislatures by the European Court and that allowed by national courts using their own individual domestic standards. Having looked at the development of Lord Clyde’s three limb test in de Freitus v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 (at 80), notably in Huang v Secretary of State for the Home Department  2 AC 167, Lord Reed returned to its origins in R v Oakes  1 SCR 103 and continued:
“74. The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang … In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.
75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd  2 SCR 713, 781-782 that the limitation of the protected right must be ‘one that it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line’. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois Elections Bd v Socialist Workers Party (1979) 440 US 173, 188-189); especially … if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a ‘least restrictive means’ test would allow only one legislative response to an objective that involved limiting a protected right.
76. In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony  2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four).”
 There is no issue in respect of legs (1) and (2) of the test as reformulated by Lord Reed (supra at para 74). In relation to leg (3), it would have been possible to select a shorter period within which a review might be required. However, the appropriate question to ask is whether the one selected was disproportionate, bearing in mind that the court should not substitute a judicial view for a legislative one. A significant element of respect for the legislature is required in what is an area of public safety. It is important in that context to appreciate the relatively limited nature of the ongoing requirements of notification when compared with the serious consequences which flow from further sexual, and violent, offending by convicted sex offenders after, and often many years after, the index conviction.
 It is accepted that some requirement for notification is necessary. That being so, the offender will have provided his personal information in the form of his address(es), passport and bank and credit card details upon first notification. Any sampling is likely to have been carried out at that time. The interference thereafter, albeit its significance should certainly not be underestimated, is primarily to notify changes and foreign travel arrangements. As such, the requirements ought to be seen as the third, and lowest, level of general measures applicable to this category of convicted offender. The highest is, of course, detention in custody; thus restricting severely the liberty of the offender as well as his Article 8.1 right of respect for his private life. The second, medium, level is a Sexual Offences Prevention Order (Sexual Offences Act 2003, s 104), which may be imposed by a criminal or civil court and may prohibit (as might release on licence or a Community Payback Order) the offender from doing certain specific things such as residing in particular areas, having contact with certain people or accessing material on the internet, over a defined period of time. The custodial and SOPO regimes are tailor made under judicial control for individual offenders. This is because of, amongst other reasons, the high level of Article 8.1 interference involved. The notification requirements apply automatically on the occurrence of a specific judicially monitored event (ie conviction), but, once triggered, there is no judicial control until a review is due to take place. Lack of periodic review is not, however, unusual in relation to the imposition of penalties generally. In the absence of any prescribed procedure for an earlier review, and given the involvement of a court in the triggering event, there is no breach of Article 8 by reason of any lack of participation in the process of applying the requirements. They are either Article 8 compliant, on account of the prescribed review periods, or they are not.
 The objective of notification, which is accepted as legitimate, is the prevention, or reduction, of crime, especially, but not exclusively, sexual re-offending. The fact that the authorities possess information on the offender’s whereabouts and his bank details is likely to discourage certain types of offending because detection will be regarded by the offender as much easier than it would be otherwise. As has been noted, the measures in the statutory scheme are not uniform or “blanket”. They apply different periods for notification depending upon the age of the offender, the seriousness of the crime and (on review) future risk. In any event, the legislature is entitled to impose a general measure which applies to a pre-defined situation regardless of individual variations in circumstances (Animal Defenders International v United Kingdom (2013) 57 EHRR 21 (p 607) at paras 106-110, Judge Bratza (concurring) at para OI-4). The fact that hard cases are thereby created does not imply a violation of Article 8 (ibid). There is no basis for concluding that a less drastic measure would have the same impact than that selected in terms of reducing re-offending.
 Allowing the respondents and Parliament an appropriate degree of respect (Bank Mellat (supra), Lord Reed at para 75), it is not possible to maintain, looking at leg (4) of Lord Reed’s test, that the selection of 15 years was disproportionate; especially as that period may be reviewed as research develops. When looking at the interests of the individual and the risks to the public in terms of the available evidence considered, the level of the interference falls far short of creating an imbalance between rights infringement and public benefit.
 In R (F) v Justice Secretary it was said (Lord Phillips at para 57) that it would be open to the legislature to fix an “appropriately high threshold for review”, including the time at which a first application might be made (ibid at para 39, referring to  1 WLR 76, Dyson LJ at para 66). In these circumstances, the court agrees with the assessment of the High Court of Justiciary in Hay v HM Advocate 2014 JC 19 (LJG (Gill) at para ) that, where there are defined periods of notification, either because they are finite or because they are subject to review within a reasonable time, the requirements cannot be said to be disproportionate. On the contrary, on the material produced, the respondents and the Parliament were correct in their view that they were Convention compliant in that they are, in terms of Article 8.2, “necessary … in the interests of public safety … for the prevention of … crime”. It is not irrelevant, in that regard, to observe that other jurisdictions in Europe (eg France and Ireland), the Commonwealth (Canada, Australia and South Africa) and the United State of America all have systems of notification, some more restrictive and others more liberal in scope and period of review.
 The reclaiming motion must be refused.
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
 CSIH 41
Lord Justice Clerk
Lord Drummond Young
OPINION OF LORD DRUMMOND YOUNG
in the reclaiming motion
PHILIP ALLAN MAIN
Petitioner and Reclaimer;
THE SCOTTISH MINISTERS
Act: Dewar QC, Pirie; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Alt: Duncan QC; Scottish Government Legal Directorate
22 May 2015
 I agree with the opinion of your Lordship in the chair that the reclaiming motion should be refused. In my opinion it is clear that the review provisions that currently apply to the notification requirements under the Sexual Offences Act 2003 do not contravene the right to private life under article 8 of the European Convention on Human Rights. In particular, I am of opinion that selecting 15 years as the minimum period during which the notification requirements will apply without review cannot be considered a disproportionate response to the problem of recidivism among sexual offenders. I agree generally with the reasoning of your Lordship in the chair, but I would like to add some observations on aspects of the law of proportionality as it has developed in the United Kingdom, both under the Convention and more generally.
The test of proportionality
 First, I have some difficulty with the test of proportionality as described in cases such as Bank Mellat v HM Treasury (No 2),  AC 700. Lord Reed’s formulation of the test (at paragraph 74 of Mellat) is set out at paragraph  above; a broadly similar version is found in the opinion of Lord Sumption (at paragraph 20 of Mellat): the question of whether the measure under challenge is proportionate to the human rights of a person affected depends on:
“(i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community”.
Lord Sumption then remarks that the four requirements are logically separate but in practice inevitably overlap because the same facts are likely to be relevant to more than one of them.
 The test appears to have originated in an opinion of Dickson CJ in the Canadian Supreme Court in R v Oakes,  1 SCR 103, a case that turned on the Canadian Charter of Fundamental Rights and Freedoms. It was taken up in a number of subsequent cases in Canada, South Africa and Zimbabwe, and a version of the test was adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing,  1 AC 69, at 80. The version used in that case, however, was confined to the first three of the original four requirements: see Huang v Home Secretary,  2 AC 167;  UKHL 11, at paragraph 19. De Freitas was concerned with the compatibility of a statute that prohibited the communication by civil servants of any information or expressions of opinion on matters of political controversy with the Constitution of Antigua and Barbuda, and it is understandable that in that context reference would be made to existing Commonwealth authorities. The report of de Freitas indicates that what was directly in issue was whether the restrictions on civil servants were “reasonably justifiable in a democratic society”. That probably corresponds as a matter of substance to the concept of proportionality, but the wording used is different. Nevertheless, in the constitutional law of the United Kingdom it appears that a concept of proportionality has been derived from de Freitas, and that concept has been developed in subsequent cases such as Huang, R (Aguilar Quila) v Home Secretary,  1 AC 621, and Bank Mellat, supra. That concept of proportionality should normally satisfy the requirements of proportionality under the European Convention on Human Rights; in this connection it is significant that the Strasbourg Court now accords a relatively wide discretion to national authorities in determining how they satisfy the requirements of the Convention, a development that is highlighted by the decision in Animal Defenders International v United Kingdom, (2013) 57 EHRR 21: see in particular paragraphs 106-111 and 116, and the concurring opinion of Judge Bratza at paragraphs OI-3 and O-4.
 The fourth element in the test as it is now formulated was introduced so far as the United Kingdom is concerned in Huang v Home Secretary, supra, where reference was made (at paragraph 19) to Lord Clyde’s statement of the test in de Freitas and it was observed that that formulation was deficient in that it failed to refer to an “overriding” requirement, namely “the need to balance the interests of society with those of individuals and groups”. This was described as “an aspect which should never be overlooked or discounted”; R (Razgar) v Home Secretary,  2 AC 368;  UKHL 27, was referred to in support. That has given rise to the quadripartite test that is currently used, as explained in Bank Mellat.
 The difficulty that I have is that it is the addendum suggested in Huang, rather than the three other requirements, that goes to the heart of proportionality. Proportionality is essentially a simple concept. As Lord Reed indicates in Bank Mellat at paragraph 68, it can be traced back to at least the time of Aristotle, where the balancing of competing considerations is regarded as an important aspect of phronesis, or practical wisdom; Aristotle nevertheless thought that this exercise required to be informed by moral considerations. The same essential simplicity can be traced through later developments in the analysis of rights, and it is difficult to understand why any greater complexity should be required either in determining the requirements of the European Convention on Human Rights or in applying the concept of proportionality as it has developed in the public law of the United Kingdom. The essence of proportionality is perhaps as follows: when the state imposes a measure that restricts the rights or liberties of any person, a reasonable balance must exist between the practical effect that that measure has on the person affected (the degree of intrusion on protected rights and liabilities) and the public policy objectives that the measure promotes. In making that assessment three elements seem to be important. The first, which can be said to correspond to the first of the de Freitas criteria, is the importance of the policy objective that the measure is designed to promote. It is the degree of importance that is significant: the more important the policy objective, the greater the degree of intrusion that may be justified. The prevention of serious crime is an obvious and important public policy objective.
 The second element in the proportionality equation is the extent to which the measure in fact furthers the policy objective that the measure is designed to promote; this can be seen as corresponding to the second criterion in the de Freitas test, whether there is a rational connection between the measure and the policy objective. Nevertheless, what matters is not so much the existence of a rational connection, in a logical sense, as an evaluation of the extent to which the measure actually furthers the policy objectives: the question is not so much “whether?” as “how much?”
 The third element is the extent to which the measure under challenge intrudes on the rights or liberties of those affected. This perhaps involves two related matters: the degree of intrusion and the question of whether the public policy objective could have been achieved with a less intrusive measure. The latter element corresponds to the third of the de Freitas criteria, whether a less intrusive measure could have been used without compromising the policy objective, although here, as Lord Reed notes in Bank Mellat at paragraph 75, care must be taken not to exaggerate this factor: it will nearly always be possible to suggest a somewhat less intrusive measure, and the critical question is whether the measure selected by the legislature or the executive is within the range of measures that can reasonably be considered as required to fulfil the policy objective. As with the importance of the policy objectives and the extent to which those objectives are furthered, the critical question is in my view the degree of intrusion that is involved, in particular the practical effects that that intrusion would have on the lives of the individuals who are affected.
 Overall, what is required is consideration of the balance between the public interest in the measure under challenge and the private interest of the person who is affected by it. The de Freitas criteria, as developed in Huang and described in Bank Mellat, do probably cover the three essential elements of proportionality, at least if they are interpreted flexibly and purposively rather than formulaically. Ultimately, however, the critical question is the fourth criterion: an evaluation of the balance between the importance of the objectives and the extent to which they are furthered on one hand and the degree of intrusion into the rights and liberties of the affected individual on the other hand. The task of evaluation is frequently difficult; often a range of incommensurable factors must be taken into the balance, which must each be given weight according to their individual significance in the case under consideration.
 On such an approach I am of opinion that the interference with the reclaimer’s article 8 rights is not disproportionate. As to the first element in the proportionality equation, the objective that the notification requirements of the Sexual Offences Act 2003 seek to achieve is undoubtedly important: the prevention of sexual and other serious crime. As to the second element, it is clear in my opinion that the notification requirements tend to further that objective. They provide the police with information as to the whereabouts of persons who have been convicted of sexual offences. The documentary evidence that is available to the court, and in particular the evidence contained in the reports that were available when the measures presently under challenge were the subject of government consultation, strongly suggests that recidivism is a significant problem among sexual offenders. This relates not only to further sexual offences but also to other forms of offending. No doubt some sexual offenders do not reoffend, but the fact is that recidivism is shown to exist to a material extent. Against that background, the notification requirements make it significantly easier for the police to trace and investigate the actings of persons who are known to be convicted sexual offenders. Furthermore, any convicted offender who is considering repeat offending will be aware that the police know of his whereabouts, and that in itself is likely, on a common sense view, to be a deterrent.
 As to the third element, the degree of intrusion, I am of opinion that the present requirements as restricted by the 2011 Order do not involve anything that is unreasonable when set against the first two elements. Interference with article 8 rights can clearly take many different forms, of greatly varying levels of severity. At the most extreme the person is imprisoned. An intermediate position would be restrictions of the sort that may be imposed by a Sexual Offences Prevention Order, which may prevent an offender from residing in particular areas or having contact with certain people or carrying out certain activities on the internet. A lesser form of restriction might involve, for example, regular reporting to the police at defined intervals, weekly or even daily, as is frequently required by bail conditions. The restrictions involved in the present case are of a lesser order. While they have a practical effect on an offender’s life, they are clearly at the lower end of the spectrum of possible interference. Furthermore, they may be regarded as an alternative to more serious restrictions. One of the advantages of the notification regime is that it enables sexual offenders to be released from prison at an earlier stage than might otherwise be the case and managed in the community. That is a factor that operates in favour of the offender, and it must be taken into the overall balance.
 The present challenge relates to the duration of the restrictions without the possibility of review and the degree of intrusion that that entails. In this connection two initial points are significant. First, the period of 15 years without the possibility of review is not a blanket period applying to all sexual offenders; it only applies to those convicted of more serious offences, namely those that have resulted in a period of imprisonment of 30 months or more, that being the effect of sections 82 and 88B of the Sexual Offences Act 2003. Secondly, in Scotland, unlike England and Wales, at the end of the period of 15 years it is for the relevant chief constable to establish that the person subject to notification requirements presents a risk of sexual harm; it is not for that person to establish that he does not present such a risk. Moreover, the decision of the chief constable is subject to review by or an appeal to the sheriff, under sections 88F and 88G of the 2003 Act, as amended. Against that background, the period of 15 years is in my opinion proportionate to the important objectives that the notification requirement is designed to achieve and the fact that the requirement is manifestly well directed towards that objective. The documentation available to the court includes the research papers that were available to Scottish Ministers during the government consultations that preceded the enactment of the 15-year limitation. It also included an updated evidence briefing. These were based on what appeared to be properly conducted studies of reoffending in England and Wales and Massachusetts, but there is no reason to suppose that the findings are not equally applicable in Scotland. That documentation indicates that recidivism, of a sexual and non-sexual nature, may occur for a substantial period after conviction, in some cases beyond 15 years. That in my opinion justifies the selection of a period of 15 years.
 In this connection, it is important to note that the precise period selected is not to be examined too closely. In Bank Mellat v HM Treasury, supra, Lord Reed notes that the decision as to the duration of any restriction on individual rights is primarily one for the legislature, and, in the words of Dickson CJ in R v Edwards Books and Art Ltd,  2 SCR 713, at 781-782, the courts are not called on “to substitute judicial opinions for legislative ones as to the place at which to draw a precise line”. Reference is also made to the statement by Blackmun J in Illinois State Board of Elections v Socialist Workers Party, 440 US 173 (1979), at 188-189 that little imagination is required for a judge to suggest something slightly less drastic or less restrictive in almost any situation. That consideration is in my opinion of significance in the present case; the fact that a period of twelve years or ten years or eight years might have gone some considerable way towards achieving the underlying legislative purpose is not in point; the critical question is whether a period of 15 years is one that was within the reasonable range that the legislature, the primary decision-making body, might select. In the present case I have no doubt that such a period is within that range.
 Furthermore, recent decisions in the European Court of Human Rights indicate that the level of discretion accorded to national authorities, the so-called “margin of appreciation”, is achieving a new level of respect. This is clearly expressed in Animal Defenders International v United Kingdom, supra, where the majority of the court stated, in a discussion as to whether general as against specific measures may be imposed (paragraphs 108-110):
“108. It emerges from that case-law that, in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it. The quality of the Parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including… the operation of the relevant margin of appreciation. It is also relevant to take into account the risk of abuse if a general measure were to be relaxed…. A general measure has been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty of litigation, expense and delay as well as of discrimination and arbitrariness.…
109. It follows that the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case.…
110. The central question as regards such measures is not… whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it”.
Those remarks are echoed by Judge Bratza in a concurring opinion (paragraphs OI-3-OI-4). The review provisions that apply to the notification requirements under the Sexual Offences Act 2003 are clearly a general measure, and the above remarks are in my opinion of importance in setting the Convention background to the issue of proportionality. They indicate that for Convention purposes a substantial measure of freedom must be accorded to the national legislature.
 For the reclaimer it was submitted that an objectionable feature of the notification regime was that it was of a general nature and failed to take account of the situation of individual offenders. The views expressed by the Strasbourg Court in Animal Defenders International v United Kingdom, supra, make it clear that under the Convention it is not a ground of objection that fixed and general rules are enacted which interfere with the Convention rights of an individual. A contrary view was expressed by Lady Hale, one of the majority, in R (Aguilar Quila) v Home Secretary, supra, at paragraph 74; she stated that “a general, automatic, indiscriminate restriction… on a vitally important Convention right falls outside any acceptable margin of appreciation”. In the same case Lord Brown expressed a contrary view at paragraph 92, albeit in a dissenting opinion. In the light of Animal Defenders International, it is in my opinion clear that the latter view is correct. The notification regime is of a fixed and general nature, not allowing for individual cases, but it cannot be objectionable on that ground. Furthermore, as I have already noted, it is significant that the notification regime does discriminate among offenders according to the seriousness of their offending.
 The majority opinion in Animal Defenders International v United Kingdom, supra, and the concurring opinion of Judge Bratza also emphasize the fundamental principle that under the Convention legislation is primarily a matter for the national legislature, and the courts should show regard for democratic processes by respecting Parliamentary decisions unless there is a clear contravention of a Convention right. The same must apply to domestic courts when they consider Convention rights, or indeed the principle of proportionality that has been created in British public law. In my view that is a material consideration in the present case.
 In this connection, it is important that courts should have regard to the process of consultation that is invariably carried out when legislation is prepared, both before and after the preparation of a draft bill. In the case of legislation in the Scottish Parliament promoted by Scottish Ministers or put forward by the Scottish Law Commission, careful consideration will invariably have been given at the policy stage to determining whether the proposed legislation complies with the Convention. Consultation will be carried out with interested parties. In the present case the court had available the consultation documents for the Sexual Offences Act 2003 (Remedial) (Scotland) Order 2010 and the policy document for the equivalent Order of 2011. These are substantial documents; they indicate that consultation was carried out with interested parties and that regard was had to a considerable volume of research. Courts should bear in mind the level of consultation and research that typically lies behind legislative proposals.
 Finally, especially in considering whether there has been a contravention of a Convention right, it may be helpful to have regard to comparative material drawn from other member states of the Council of Europe and other comparable countries such as Canada, the United States, Australia and New Zealand. If a particular type of legislation is in reasonably common use in these jurisdictions, it is more difficult to assert that legislation of that type is contrary to the Convention. Obviously this cannot be conclusive, but the existence of comparable legislation elsewhere is a factor that should be taken into consideration. In the present case the court was informed that other European jurisdictions, including France and Ireland, and other jurisdictions in Canada, Australia and the United States all have systems involving notification requirements. That in my opinion is a factor that may properly be taken into account in considering whether the Scottish legislation is contrary to the Convention. It is, moreover, a factor that may be relevant to the proportionality exercise required by the public law of the United Kingdom.
 For the foregoing reasons, and those stated by your Lordship in the chair, I am of opinion that the reclaiming motion must fail.
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
 CSIH 41
Lord Justice Clerk
Lord Drummond Young
OPINION OF LORD MALCOLM
in the reclaiming motion
PHILIP ALLAN MAIN
Petitioner and Reclaimer;
THE SCOTTISH MINISTERS
Act: Dewar QC, Pirie; Drummond Miller LLP (for George Mathers & Co, Aberdeen)
Alt: Duncan QC; Scottish Government Legal Directorate
22 May 2015
 I agree with the opinion of his Lordship in the chair, and wish to add only a few observations of my own.
 The question before the court is whether a 15 year wait for the right to a review of the need to comply with the lifetime notification requirements set down in the Sexual Offences Act 2003 (as now amended) is “necessary in a democratic society” for the prevention of crime. It is recognised that, in most contexts, when such issues are being addressed, a judgment requires to be made, with the law maker being allowed an appropriate “margin of appreciation”. The task is to strike a fair balance between the protection of individual rights and the legitimate concerns of society at large. For example, there must be a rational connection between the measure and its intended purpose. If it is clear that the interference goes beyond what is necessary, matters are out of proportion, and Convention rights are not being respected. The submission for the reclaimer is that a 15 year delay is a disproportionate interference in the article 8 rights of those subject to the lifetime notification requirements. The following factors have persuaded me that this submission should be rejected.
 The court has the benefit of guidance from the UK Supreme Court, in R (F) v Secretary of State for the Home Department  1 AC 331, to the effect that the legislature is entitled to set a high threshold for, amongst other things, the timing of the review. It is reasonable to assume that a period in excess of the 10 year fixed requirement for less serious offences was in mind. There has been no challenge to the overall regime set down in the 2003 Act, and it would make little sense if someone subject to the indefinite notification requirements could be released from them before lesser offenders.
 While the notification duties are not part of the punishment imposed by the court, the background of the commission of a serious sexual offence is relevant when considering the proportionality of the review measures. Bearing in mind where the burden of proof lies, namely upon the Chief Constable to be satisfied that the individual no longer poses a risk of sexual harm, it is difficult to criticise a requirement that a review should be structured so that it can be known whether the individual has remained clear of trouble for a significant period. It is apparent from Lord Phillips’ discussion in R (F) that he recognised the uncertainties involved in risk assessments of serious sex offenders. This did not stop a declaration of the need for a review, but it remains a factor which supports the review being timed so as to allow consideration of the offender’s behaviour over a substantial period while living in the community. In other words, a precautionary approach is appropriate.
 Another relevant consideration is that, in itself, registration has a deterrent effect – see R (F) at paragraph 26. And, as Lord Rodger emphasised, “these requirements are not to be seen in isolation, but as underpinning the scheme of multi-agency public protection arrangements which are designed to manage the risk of re-offending” (paragraph 64).
 The above factors justify not only the indefinite nature of the notification requirements for serious crimes, but also a 15 year delay in their review. The lifetime requirements are a tool for managing sex offenders, not for managing sex offenders whom the state can prove to be a risk to the public. For the person involved, it is the commission of a serious sexual offence which has triggered the consequences. The court has said that there is a need for a review bringing his or her particular circumstances into focus, but it by no means follows that a right of review must be exercisable at will, and as often as requested; this being the logical outcome of counsel for the reclaimer’s submission that the requirements are incompatible with article 8 if an individual is able to show that he poses no material risk.
 No one has questioned the importance and legitimacy of the purpose of the requirements, nor the connection between them and that beneficial aim. It is clear that scrutiny was given to the available statistical and research material in this area by both the Government and the Scottish Parliament, all in the context of a recognised need to comply with the Convention. There is no question of arbitrariness or irrationality in the choice of a 15 year review period.
 For these reasons I am of the opinion that the decision that serious sexual offenders must remain subject to the notification requirements for at least 15 years, after which they are entitled to a review, cannot be described as imposing an unduly lengthy interference with article 8 rights. No doubt the legislature could have adopted a shorter (or longer) period, but, in my view, the measure chosen fell within the margin of appreciation afforded to it. The requirements of necessity and proportionality being satisfied, the reclaiming motion should be refused.