Child-killer Karen Harrington, who is serving a life sentence for the murder of two-year-old Santina Cawley, has launched a bid to overturn her conviction, arguing that CCTV footage which captured the inside of her home amounted to a breach of her privacy rights.
Harrington (40) was convicted by a jury in 2022 of the murder of the toddler, who was found with extensive injuries in the appellant’s apartment in Cork City.
Harrington had denied the murder of Santina at her apartment at Elderwood Park, Boreenmanna Road, Cork, on July 5th, 2019.
However, in May 2022, at the Central Criminal Court sitting in Cork, seven men and four women returned a unanimous guilty verdict before Mr Justice Michael MacGrath.
The trial heard that Michael Cawley, Santina’s father, had been in a relationship with Harrington at the time and had left Santina in Harrington’s care in her apartment when he went into Cork City in the early hours of July 5th, 2019, to try and find his cousin who had come from Limerick.
During the trial, the jury heard evidence that Santina suffered a total of 53 separate injuries. Assistant State Pathologist Dr Margaret Bolster told the trial that her injuries could not have been accidental such was their multiplicity and ubiquity all over her body.
Dr Bolster told the trial that Santina, who was just 47cm tall and weighed 10.3kg, died from traumatic brain injury and upper spinal cord injury, together with polytrauma and lower limb injuries, all as a result of blunt force trauma.
At the Court of Appeal on Monday, Jane Hyland SC, for the appellant, argued that CCTV footage taken from an address that backed onto Harrington’s duplex amounted to a breach of her right to privacy and should not have been put before a jury.
Ms Hyland said: “The trial judge erred in law in admitting into evidence CCTV footage from Clanrickarde Estate.”
“The appellant submits that the said footage was highly prejudicial and that its prejudicial effect far outweighed its probative value at the trial,” Ms Hyland submitted.
“It is submitted that the footage invaded the appellant’s right to privacy together with the inviolability of her dwelling under the Irish Constitution by capturing not only the exterior of her dwelling but the interior also,” she added.
Ms Hyland said the footage “directly interfered” with Harrington’s right to privacy under EU law with regard to the European Convention on Human Rights and on protection of personal data under the European Charter of Fundamental Rights.
Ms Hyland submitted that the Data Protection Act 2018, in regard to processing personal data relating to criminal convictions and offences, demanded “suitable and specific measures being taken to safeguard the fundamental rights and freedoms of the data subject [Harrington]”.
Counsel submitted that metadata relating to phone records referred to in the case of murderer Graham Dwyer “came within the meaning of personal data” within data protection laws.
Ms Hyland said the retention of that data could be likened to the retention of personal data “in relation to a specific data subject when, for example, domestic CCTV is installed for the purposes of preventing damage or guarding a dwelling”.
Dwyer is serving a life sentence for the murder of 36-year-old childcare worker Elaine O’Hara, who was last seen alive in August 2012 in a park in Shanganagh, south Dublin.
After his 2015 conviction, Dwyer brought a legal challenge over the retention of his mobile phone data.
His appeal was upheld by the High Court, but the decision was then appealed by the State and subsequently referred to the European Court of Justice. Dwyer is awaiting judgement in a Supreme Court Appeal against his conviction.
Data retention
Ms Hyland submitted the European Court of Justice “confirmed that EU law precludes national legislative measures which provided, as a preventative measure, for the general and indiscriminate retention of traffic and location data relating to electronic communications, for the purposes of combating serious crime”.
Sean Gillane SC, for the State, submitted that on “day one” of Harrington's trial, the issue of CCTV in the case had been addressed by then defence counsel Brendan Grehan SC so that footage could be truncated and presented by a garda before the jury.
Ms Gillane said the garda had then been cross-examined on “every clip” by the defence, and that “all of this was done in the presence of a jury”.
Mr Gillane said the defence had asked that a “specific” piece of footage be played without interruption to the jury and that the defence’s attitude towards the CCTV evidence had been the “exact opposite” of overlooking it during the trial.
Ms Justice Isobel Kennedy, sitting with Ms Justice Úna Ní Raifeartaigh and Ms Justice Tara Burns said the court would reserve its judgement in the matter.
During the trial, the court heard that Harrington and Mr Cawley had been drinking together at the apartment of a friend of Harrington’s, also in the Elderwood complex, but a row had broken out between them, with Mr Cawley calling Harrington “a whore and a prostitute” before she went home alone shortly before 1.30am.
Mr Cawley continued drinking at the apartment until around 3am, when he returned to Harrington’s duplex with Santina.
The couple had another argument before Cawley left Santina in the care of his partner and walked into Cork City.
Dr Bolster told the trial that the blunt force trauma she found resulted from the child being struck with or against something, and Santina’s extensive injuries to her head, upper body and limbs were not the result of any accidental fall.
In May 2022, Harrington was sentenced to life imprisonment for the murder of Santina.
