Director of Public Prosecutions v Harrington

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 06 June 2024
• Neutral Citation: [2024] IECA 153
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 102/2022

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Karen Harrington

Appellant

[2024] IECA 153

Kennedy J.

Ní Raifeartaigh J.

Burns J.

Record No: 102/2022

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 6 ^th day of June 2024 byMs. Justice Isobel Kennedy

1 . This is an appeal against conviction. On the 16 ^th May 2022, the appellant was convicted of the murder of Santina Cawley, contrary to common law.

Factual Background

2 . The appellant and Mr Cawley, the deceased child's father, were in a relationship. The child was two years old at the time of her death. The appellant resided at No. 26 Elderwood Park, Cork where the body of the deceased was later found.

3 . The evidence disclosed events and movements of various people in various locations throughout the 4 ^th and 5 ^th July 2019, with the appellant, Mr Cawley and Santina Cawley being inter alia at No. 30 Elderwood Drive and No. 26 Elderwood Park. No. 30 was the residence of the appellant's friend, and it seems the parties were socialising there late on the 4 ^th July into the early hours of the 5 ^th July.

4 . There were differing accounts of events at No. 30, but it seems that the appellant left No. 30 Elderwood Drive and returned to her own apartment building around 1:30 am, which movement was captured on CCTV footage from 19 Clanrickarde Estate.

5 . The appellant resided in an apartment which was situated on levels 3 and 4 of the complex. Access to the properties was gained by means of a walkway. It seems that access can be gained to the apartment on both levels via a front door or a sliding door.

6 . Mr Cawley remained at No. 30 Elderwood Drive for some time. CCTV evidence was adduced of Mr Cawley coming from the direction of No. 30, pushing a buggy, at 3am, arriving onto the stairwell at 3.04am and at 3.07am, the footage adduced disclosed the sliding door to the apartment opening. However, there was some discrepancy between the recorded time and real time, and it seems that Mr Cawley entered the apartment at 3.05am and then left at 3.10am.

7 . Mr Cawley said he arrived at No. 26 with his daughter, entering through the sliding door on the top balcony. The appellant, he said, was present in the living room and he left his daughter on a blanket in the room with her. He then left to retrieve his phone.

8 . D/Sgt. Daly who was in charge of gathering and viewing the footage gave evidence that Mr Cawley entered the apartment at 3.05am and left at 3.10am. He also gave evidence that from viewing the footage nobody entered or left No. 26 Elderwood after 3.10am until Mr Cawley returned at approximately 5.10am, except for the movements of the appellant, evidence of which was given by her neighbours as outlined below.

9 . Evidence was adduced from neighbours of the appellant concerning shouting in the early hours of the 5 ^th July 2019. Ms McGaley, a neighbour of the appellant, gave evidence that at approximately 3am, she heard an argument between a man and a woman and that she was able to identify the woman's voice as the appellant's. She said that the appellant was screaming “ I'm going to tell them all, I'm going to tell them all, I'm going to tell them” and that she heard a glass smash. Ms McGaley became concerned and called to No. 26. She described that when the appellant opened the door, she was very apologetic and indicated that she was going to bed. At 3:27am, Ms McGaley called a sister of the appellant to express her concern and at 3:42, the appellant called Ms McGaley, looking for a lighter. Ms McGaley next heard the appellant in the front garden of the apartment complex screaming up at Dylan Olney.

10 . Mr Olney gave evidence of hearing a banging noise and looking out the back balcony doors of his apartment to see the appellant slamming her sliding door open and closed. He said that he swore at her: “ Listen, you fucking dingbat, you better stop that or I'll call the guards” and that the appellant responded by saying: “ Go on, call them” and that she stood in the front garden for a time chanting “ Dylan, go on, call them, call them, call them.” He said that the appellant then knocked on his front door and asked for a lighter, at which point he refused to deal with her.

11 . Next, Mr Olney described hearing a child crying, coming from No. 26, followed by taunting along the lines of: “ The poor baby, are you all right?” and that he could hear the appellant shouting at the child to “ shut up.” Mr Olney became concerned and at 4:31am he called Anglesea Street Garda Station.

12 . The gardaí arrived at 4:52am and Mr Olney admitted them into the building, but they could not gain access to No. 26. Mr Olney said that at the time of his call to the gardaí, the child was crying, but at the time of their arrival, the crying had ceased and there was silence.

13 . At 5:10am, Mr Cawley was captured on CCTV entering the apartment building. Mr Cawley described that on entering No. 26, he saw blood and glass on the floor and that the appellant was lying down on the couch and there was a blanket over Santina's face. Mr Cawley asked the appellant what had happened, and she ran from the apartment. The appellant was captured on CCTV running from the complex.

14 . Mr Cawley said that when he removed the blanket from Santina, she was naked with bruising to her forehead, and he was unable to get a response from her. Mr Cawley raised the alarm with Mr Olney and at 5:13am, Mr Olney called the gardaí a second time. Gardaí arrived at 5:23am and secured the scene. Santina was conveyed to Cork University Hospital where she was pronounced dead at 9:20am.

Grounds of Appeal

15 . The appellant advances the following grounds of appeal:-

“1. That the learned trial judge erred in law in admitting into evidence CCTV footage from 19 Clanrickarde Estate.

2. That the learned trial judge erred in law in admitting into evidence memoranda and videos of interview that were conducted at a time when the applicant was medically unwell and unfit to be interviewed.

3. That the learned trial judge failed to adequately charge the jury on the issue of circumstantial evidence.”

Submissions of the Parties

CCTV Footage from 19 Clanrickarde Estate

The Appellant

16 . Counsel on behalf of the appellant acknowledges that neither an application to exclude nor requisitions were made at trial concerning this CCTV footage but argues that this was because the ruling of the Court of Justice of the European Union (CJEU) in Case C-140/20, GD v Commissioner of An Garda Síochána & Ors (5 ^th April 2022), had not yet been addressed by the Supreme Court when the within matter came on for trial and therefore the legal position in Ireland was unclear at that time.

17 . The appellant submits that in line with People (DPP) v Cronin (No. 2)[2006] 4 IR 329, the lack of engagement at trial with the CJEU decision as interpreted by the Irish Supreme Court was an oversight which amounts to a real injustice.

18 . The appellant submits that the prejudicial effect of the CCTV footage from 19 Clanrickarde far outweighed its probative value. It is argued that the footage violated the appellant's unenumerated right to privacy and the inviolability of her dwelling under the Constitution by capturing not only the exterior of her dwelling but the interior also and that her privacy rights under EU law, the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union were interfered with.

19 . The appellant asserts herself as a data subject under the General Data Protection Regulation (GDPR) and argues that suitable and specific measures were not taken to safeguard her fundamental rights and freedoms as is required by s. 55(1) of the legislative transposition of the Regulation, the Data Protection Act, 2018:-

“Without prejudice to the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 and subject to compliance with Article 6(1) and to suitable and specific measures being taken to safeguard the fundamental rights and freedoms of the data subject, personal data referred to in Article 10 (in this section referred to as “Article 10 data”) may be processed…”

Section 55 of the 2018 Act applies to the processing of personal data relating to criminal convictions and offences.

20 . The appellant relies on the CJEU's ruling in GD, in particular, the Court's finding that access to meta data in the context of a criminal offence, must be subject to prior review carried out either by a court or an independent administrative body, which should not be a police officer. The appellant equates the “meta data” referred to therein with “personal data” as referred to in the GDPR and submits that the retention of meta data can be likened to the retention of personal data in relation to a specific data subject where, for example, domestic CCTV is installed for the purposes of preventing damage or guarding a dwelling.

21 . The Clanrickarde footage with which the appellant takes issue was captured by a domestic CCTV system installed in a private home. The appellant explains that Article 2(2)(c) of the GDPR disapplies the Regulation from the processing of personal data by a natural person in the course of a purely personal or household activity. Article 2(2)(c) GDPR reaffirms the so-called “household exemption” which already existed under Directive EC/95/46.

22 . It is submitted that the use of the Clanrickarde footage in the investigation of a serious crime went beyond the personal use envisaged by Article 2(2)(c) and violated the appellant's rights under the Constitution, the GDPR and the 2018 Act. It is further submitted that the footage was collected, retained and processed without adequate safeguards in place for the protection of the appellant's fundamental rights and freedoms.

23 . The appellant also relies on Case C-212/13, František Ryneš v Úrad pro...