ZY v Higgins [2013] NIQB 8 revisited in the light of PPT v ITN and Guardian News & Media [2026] EWHC 2818 (KB)
Few moments in media practice concentrate the mind like the service of an emergency injunction on a journalist leaving court with a story to file. The question that mostly follows is whether a story is true or in the public interest.
On rare and novel occasions, the question is whether publication will cost a life.
In 2013, I acted for a Belfast court reporter in one of the first cases in these islands in which a convicted defendant used Article 2 of the European Convention on Human Rights to stop open-court reporting.
Thirteen years later, the High Court in London has taken up the same question in a very different setting and reached the opposite result.
Read together, the two decisions show how far the law has moved, and how much is still unsettled.
ZY v Higgins: the Belfast proceedings
The factual matrix
My client, Paul Higgins, is a self-employed court reporter who works at Laganside Courthouse and supplies copy to a number of news organisations. The plaintiff, ZY, had been prosecuted on 17 counts of blackmail, engaging in sexual activity with a minor and possessing indecent images of children. Belfast Magistrates' Court made an anonymity order, which was renewed until trial. ZY pleaded guilty and on 7 December 2012 was sentenced at Belfast Crown Court to 21 months' imprisonment. In a reserved ruling, the sentencing judge revoked the anonymity order and replaced it with a narrower restriction protecting only ZY's address and home area.
That same day, as Mr Higgins left court to file his story, ZY obtained an emergency interim injunction stopping him from publishing anything that might identify him. The application had been made on notice but was heard ex parte. Mr Higgins, a freelancer of modest means, suddenly found himself the defendant in expensive and complex High Court proceedings. Mr Justice McCloskey later commended him for not publishing during the short window in which he could lawfully have done so. The Northern Ireland Courts and Tribunals Service was joined as second defendant, standing in the shoes of the Crown Court judge, so that ZY could bring a claim under sections 6 and 7 of the Human Rights Act 1998.
The advocacy
Mr Higgins contacted me and I was instructed at very short notice, and acted as Solicitor Advocate in the High Court. I drafted and filed complex and detailed skeleton arguments and appeared at two full-day inter partes hearings. At the first, I applied to dismiss the proceedings and lift the restriction. It was during that hearing that the real basis of the claim emerged. ZY said there was a risk he would take his own life if he were identified, and he relied on Article 2 as a right that overrode Article 10 and the public interest in reporting. He also pleaded Article 8 and a claim in confidence or misuse of private information.
My first priority was evidential. An Article 2 claim that is merely asserted should not be allowed to suppress reporting of a conviction handed down in open court. I therefore pressed for medical evidence to substantiate the claimed risk before any final decision was made. The case was adjourned for the exchange of that evidence and relisted for a further day of oral submissions. In the event, the trial proceeded on the evidence, less than two months after the interim order.
Our defence relied squarely on Article 10, section 12(4) of the Human Rights Act and the common law principle of open justice. I argued that a convicted sex offender has no reasonable expectation of privacy in his conviction, and that the public has a strong interest in knowing who has been convicted of offences of this seriousness. I put the media's role as public watchdog of the administration of justice at the centre of the case.
The judgment
McCloskey J found the medical evidence "balanced, carefully compiled, demonstrably well researched and credible". It included GP records of an earlier suicide attempt, a consultant psychiatrist's opinion that publicity would make ZY a "high suicidal risk", and a second psychiatrist's view that completed suicide was not inevitable but "cannot be entirely discounted". The judge applied the Osman test as confirmed in Re Officer L and Van Colle: a real risk is one that is objectively verified, and an immediate risk is one that is present and continuing. He held that the test is one of sufficiency, not of overwhelming evidence, and that it was met.
The decisive passage concerned the hierarchy of rights. Because the right to life is absolute, the judge said that balancing it against Article 10 under section 12(4) had "a certain tinge of unreality". His conclusion was unequivocal: freedom of expression "must yield to the right to life", and open justice must undergo "a limited dilution". After earlier exchanges on the strong Article 10 and public interest legal principles, we successfully narrowed the issues so that Article 8 was not ultimately relied on at trial. The court decided in this case, a very novel legal principle, namely, that the private law claim against Mr Higgins succeeded in breach of confidence on the footing that ZY's identity was confidential information that could not be published if publication would breach Article 2. The final injunction prohibited identification only. Reporting of the prosecution, its outcome and the civil proceedings remained permitted, and the judgment could be reported in full. The judge stressed that the decision turned on its own facts and that there would be "no litigation bandwagon or conveyor belt".
Novelty and the State's positive obligation
ZY is a novel case and Article 2 duty was applied prospectively. Most Article 2 cases, such as Osman, look back and ask whether the authorities did enough. Here the court, as a public authority, was asked to prevent a foreseen death by restraining a third party.
McCloskey J drew on Rabone, which recognises that the operational duty can extend to suicide and that its categories are expanding, and on the Court of Appeal's decision in Re C. The result treated the court's own knowledge of a real and immediate risk, combined with its power to restrain publication, as enough to engage the State's positive obligation.
That raises a hard question that arguably the 2013 judgment did not fully answer. How far must the State protect a person from an autonomous decision to end his own life?
The Strasbourg cases on suicide, Keenan and Edwards, and Rabone itself are rooted in situations where the State has assumed responsibility, through detention or psychiatric care, or where the person is especially vulnerable. Those cases respect autonomy while recognising that a person at risk may not be acting freely.
In ZY, the ground for intervention was ZY's distress at being identified. The protective step, an injunction against a journalist, fell on a private party who had no responsibility for that risk.
PPT v ITN and Guardian News & Media: the English approach
On 3 November 2026, Mr Justice Nicklin dismissed a claim by a well-known individual, anonymised in the proceedings as PPT and since named as the author and comedian David Walliams, for an injunction to stop ITN and the Guardian publishing the results of a joint investigation into allegations of inappropriate sexual conduct towards young women. He denies the allegations. He relied on Articles 2, 3 and 8. A single joint expert gave psychiatric evidence, which was not challenged. The court accepted that the anticipation of publication, and publication itself, would each give rise to a real and immediate risk of suicide. That finding was in some ways stronger than in ZY. PPT had attempted suicide twice and was detained under the Mental Health Act 1983.
Even so, the claim failed. Nicklin J held that a real and immediate risk is necessary but not sufficient. The court must also identify which part of the State bears responsibility for the risk and what reasonable steps are required. Responsibility for PPT's safety rested with the psychiatric hospital and mental health services, which controlled his care, observation and access to means of self-harm. The court had not assumed responsibility for his safety in the relevant sense, and a refusal to restrain publication would not make the journalism an act of the State. To hold that the court's knowledge of a risk, together with its power to restrain the trigger, was enough to require it to act would create a new category of Article 2 obligation. The court declined to do that.
Three further points stand out. First, PPT brought no claim in misuse of private information, breach of confidence or any other recognised cause of action, and the Convention rights alone could not create one against private media defendants. Secondly, an injunction would remove the trigger but not treat the underlying condition, and there was no clinical basis for any end date, including a suggested 18-month review. Thirdly, even on a direct Article 8 balance, the public interest in serious allegations about a prominent person, investigated through more than 100 interviewees and more than 30 first-hand sources, outweighed the very serious interference with PPT's private life. Anonymity and reporting restrictions were kept in place pending any appeal. No appeal was brought: the deadline for taking the case to the Court of Appeal passed on 9 November 2026, his anonymity fell away, and on 10 November ITN and the Guardian named him and published their investigations.
Development or departure?
The contrast with ZY is stark.
In Belfast, once a real and immediate risk was shown, Article 2 effectively prevailed and the court itself was treated as the arm of the State bound to act.
In London, the same finding opened the analysis rather than closing it. Responsibility was placed on mental health services and, implicitly, on the individual's own agency. Applying Article 2 in this way would require the State to intervene in lawful journalism to prevent "an autonomous act by the claimant himself". The facts differ, of course. ZY concerned identification after a conviction in open court; PPT concerns untested allegations from an investigation. ZY also had a pleaded confidence claim, and the Crown Court's own order was directly under challenge. Even so, the reasoning in PPT makes it hard to see how the ZY approach would survive a challenge in England today. Because no appeal was pursued, the point will not be tested in the Court of Appeal in this case, and Nicklin J's first instance analysis stands as the leading English authority. Whether the Northern Ireland courts would follow it remains open.
Article 2 is absolute in the sense that it cannot be derogated from, but the operational duty it imposes is qualified by reasonableness and by the high Osman threshold. ZY treated the right as overriding once that threshold was met. PPT treats the threshold as only one step in a structured inquiry. ZY was the first case on this island, where I had successfully sought and obtained independent psychiatric evidence in a media publication case that addressed the risk being alleged, its causes and how it could have been managed in prison. I sought to identify which public body was responsible for the person's care and asked whether a time-limited or narrowly drawn restriction would be enough.
Open justice and criminal convictions
In both jurisdictions, the public interest in reporting convictions handed down in open court, including the identity of the offender, is at its strongest. Accurate court reporting builds public confidence in the justice system, deters offending and supports the rule of law, a point McCloskey J readily accepted. Departures from open justice must be necessary, proportionate and supported by clear evidence. Courts making reporting restrictions should also cite their statutory or Convention basis correctly. I successfully challenged the court orders and McCloskey J accepted that the pro forma orders used in ZY's prosecution had been wrongly framed.
Misuse of private information and Convention rights
The private law route matters. In ZY, the court used breach of confidence as the vehicle for the Article 2 analysis against a private journalist. PPT confirms that, without such a cause of action, the Convention rights do not by themselves found an injunction against media defendants. The threshold question, whether there is a reasonable expectation of privacy in criminal conduct or in a public conviction, will often decide the case before the balancing exercise begins.
A freelance reporter served at the courtroom door faces costs exposure, lost income and the risk of contempt, often before seeing any evidence. Editors must decide quickly whether to comply, resist or seek a variation. They must also recognise that refusing an injunction does not mean the court approves publication. As PPT makes clear, whether, when and how to publish remains an editorial decision with its own legal and ethical consequences, including responsible handling of any suicide risk.
The Streisand effect
There is a further, practical lesson. The application was brought to keep the allegations out of the public domain. Its failure has had the opposite effect. The proceedings themselves became a story, reported widely while the claimant was anonymous as the "famous man" seeking to stop publication, and the moment the appeal deadline passed his name was carried across national, regional and international outlets alongside the allegations and the detail of his injunction bid. This is the Streisand effect in its classic form: an attempt to suppress information draws far greater attention to it than publication alone would have done. Claimants and their advisers must weigh that risk before issuing. An unsuccessful application can produce a public judgment setting out the allegations, the evidence and the court's view of the public interest, and the eventual coverage will often lead with the failed attempt to silence it.
Conclusion
In 2013, the Belfast court held that the right to life must prevail over the right to report. Since that case, there have been hundreds of applications made by defendants in criminal proceedings seeking to rely on ZY, and the media have intervened and objected to many of these applications. These are complex legal principles and whilst these applications are arguably more common in Northern Ireland than anywhere else due to the unique landscape we have. I have successfully represented the media in many such applications which have failed on the evidence, facts and application of the law.
In 2026, the English High Court has drawn a firmer line: the State protects life through its health services, not by suppressing lawful journalism.
With no appeal in PPT, whether the Northern Ireland courts adopt that approach will shape this area for years to come. Whatever the courts decide, the final decision on publication will rest, as it always has, with editors and their lawyers.
