The Omid Litigation: Should Courts Hear Oral Evidence When Determining the Proportionality of Section 2(1) of the...

This commentary reviews Mr Omid T's legal challenge for a declaration of incompatibility under section 4 of the Human Rights Act 1998. Omid argued that section 2(1) of the Suicide Act 1961 is incompatible with his Articles 2 and 8 rights under the European Convention on Human Rights (ECHR). The Omid litigation considers whether it is appropriate and necessary that courts should hear primary oral evidence with cross-examination in determining the ethical, moral, and social policy issues that underlie the assessment of whether the Suicide Act is a disproportionate restriction on Omid's rights. The question of what type of evidence would need to be available to courts to determine section 2(1)'s proportionality is an important question left unresolved by Nicklinson v Ministry of Justice. The Omid litigation concludes it is inappropriate and unnecessary that courts should hear oral evidence and permit cross-examination in determining section 2(1)'s proportionality. The commentary analyses the reasoning in the Omid litigation regarding why it is inappropriate to hear oral evidence with cross-examination in determining section 2(1)'s proportionality. The commentary then argues a persuasive case can be made for the appropriateness of oral evidence and cross-examination in assisted suicide proportionality cases.