Courts and conditions of uncertainty in 'times of crisis'

Abstract

This paper examines recent decisions of the British courts in terrorism cases. Two general approaches are identified: the first seeks to accommodate government crisis-related claims; the second starts from the need to reassert ‘normal’ public law principles. The paper then explores the judicial response to a particularly important plane of argument – namely, questions of risk and uncertainty. While a number of different ways of responding to government arguments about risk are isolated, it is argued that it is ultimately better for the courts to confront these arguments directly in their judgments