Child killer Karen Harrington, who argued that her privacy rights were breached during the investigation into the murder of two-year-old Santina Cawley, is to remain serving her life sentence after failing in a bid to have her conviction overturned.
Returning the judgement of the Court of Appeal on Thursday, Ms Justice Isobel Kennedy said that insofar as CCTV footage is concerned, the court "has stated time and again that an individual does not have an expectation of privacy while moving through public spaces".
Harrington (40) 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, a jury of 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. He 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 travelled from Limerick.
During the trial, the jury heard evidence that Santina suffered a total of 53 separate injuries and Assistant State Pathologist Dr Margaret Bolster told the trial that the injuries could not have been accidental, such was their multiplicity and ubiquity all over the child's body.
At the Court of Appeal in March, Jane Hyland SC, for Harrington, argued that CCTV footage of Harrington’s duplex taken from a premises that backed on to the front of the defendant's house amounted to a breach of privacy and should not have been put before a jury.
Ms Hyland said that “the trial judge erred in law in admitting into evidence CCTV footage from Clanrickarde Estate”.
“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,” submitted Ms Hyland.
In dismissing the appeal on Thursday, Ms Justice Kennedy said that the court was not persuaded that the appellant’s right to privacy was infringed upon.
“No fundamental injustice may be said to arise in the circumstances where the footage was harvested to advance the investigation and transpired to provide relevant and admissible evidence at trial,” said Ms Justice Kennedy.
Ms Justice Kennedy said that the footage was taken from “communal areas” and was “highly probative, and the balance certainly lay in its admission”.
Ms Justice Kennedy said that even if the objection to the evidence had been made at the trial, which was not the case, “we cannot see that the appellant would have been successful in excluding the evidence”.
At the appeal hearing, Ms Hyland submitted that the CCTV footage “directly interfered” with Harrington’s right to privacy under EU law with regard to the European Convention on Human Rights and the 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”.
Infamous murderer 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 on the retention of his mobile phone data and his appeal was upheld by the High Court which was a decision itself then appealed by the State and subsequently referred to the European Court of Justice.
The European Court of Justice, Ms Hyland submitted, “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”.
Ms Justice Kennedy said that there had been no issue raised about the CCTV admissibility at Harrington's trial and that the defence had actually sought particular extracts of the footage to be played to the jury.
“It cannot be argued that the reason for the failure to raise the matter at trial was due to an error or oversight. The footage was clearly a very important feature of the evidence,” said Ms Justice Kennedy.
Ms Justice Kennedy said that the court “entirely agreed with the DPP” that the footage was within the public domain and was “undoubtedly known to all the parties”.
Ms Justice Kennedy said the issue in the Graham Dwyer case concerned the retention of mobile phone data, "which has no bearing upon CCTV footage harvested during the course of an investigation”.
The CCTV footage in Harrington's case was harvested from commercial and private sources and "in an entirely independent manner and did not concern the mass retention of data,” said Ms Justice Kennedy.
“Insofar as CCTV footage is concerned, this court has stated time and again that an individual does not have an expectation of privacy while moving through public spaces.
“The footage from Clanrickarde Estate was relevant evidence depicting the movement of people during the period before and after the killing of a child. While the sliding door to the appellant’s apartment could be seen opening and closing, the movements caught are those to and from the communal walkway,” said Ms Justice Kennedy.
