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 today, 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) had denied the murder of Santina at her apartment at Elderwood Park, Boreenmanna Road, Cork, on July 5, 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 5, 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 today, 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.

With regard to a ground of appeal based on the appellant submitting that she was ill during interviews, Ms Justice Kennedy said that Harrington had been attended by a solicitor during five interviews and seen by a doctor before being assessed as fit for interview.

Ms Justice Kennedy said no complaint had been made by Harrington’s solicitor as to the appellant’s wellness or fitness to be interviewed.

Ms Justice Kennedy said “no issue was raised at trial regarding the admissibility of memoranda of interview sufficient to ground an apprehension that a real injustice has occurred”.

“No evidence was led regarding the appellant’s detention and her [Harrington’s] solicitor was present for all interviews,” said the judge.

Harrington’s lawyers also submitted that the charge delivered by the trial judge to the jury on the amount of circumstantial evidence in the case should have been addressed in “more than a paragraph” of the judge’s two-day charge and that the judge had therefore erred in law.

In dismissing the argument regarding the weight given to circumstantial evidence in the judge’s charge, Ms Justice Kennedy said it was “unsurprising that no requisition [a challenge to the content of the judge's charge] was raised” by lawyers at the trial.

“It was a clear and readily understandable exposition of law on circumstantial evidence,” said Ms Justice Kennedy.

“We are not at all persuaded that there is merit in this ground. The matter was not raised at trial, it was not an issue of inadvertence or error and there is no question of a fundamental injustice in terms of the charge on circumstantial evidence,” said Ms Justice Kennedy.

“As we are not persuaded on the merits of the grounds of appeal, we dismiss the appeal against conviction,” said Ms Justice Kennedy.

At the trial, Dr Bolster told the trial that Santina Cawley, 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 a result of blunt force trauma.

The trial 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 about 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 blunt force trauma resulted from being struck with something or struck against something and Santina’s extensive injuries to her head, upper body and limbs were not the result of any accidental fall.

“These are not accidental but are forcefully inflicted injuries,” said Dr Bolster after cataloguing a long list of injuries sustained by Santina including complex fractures to her skull with displacement of bone, two fractured ribs and fractures to her right arm and end of her left thigh.

Dr Bolster also listed extensive bruising including to Santina’s forehead, side of the face, lower jaw as well as upper right arm, lower left arm, hands and feet, while she also found a tear to the philtrum or piece of flesh between the upper lip and gum, usually associated with a blow to the mouth.

Asked by defence counsel Brendan Grehan SC if Santina would have stopped crying after suffering head injuries, Dr Bolster said she would have fallen into a coma as soon as she suffered the extensive head injuries and would have stopped crying immediately.

Dr Bolster told Mr Grehan that Santina could only have suffered the diffuse axonal injuries or injuries to nerve fibres in her brain from her head being struck against a surface or struck with some object and given there was no external injury, it looked like her head was struck against a flat surface.