Former soldier Lisa Smith’s lawyers have argued that no self-respecting legal system could convict her of being a member of an unlawful organisation simply because she lived in an area where Islamic State operated, and even if she were a sympathiser; that does not prove she was a member.
“The preponderance of evidence suggests Isis were blissfully unaware of her existence,” Defence Senior Counsel Michael O’Higgins told the Court of Appeal on Friday.
However, Tony McGillicuddy SC, for the Director of Public Prosecutions (DPP), argued that while a court “has to be careful” in distinguishing between someone who “is a sympathiser” and “a participant”, in this case “that line was crossed”.
In 2022 Smith became the first person to be convicted in an Irish court of an Islamic terrorist offence committed abroad when the three-judge, non-jury Special Criminal Court (SCC) found that she joined Isis when she travelled to Syria in 2015. The 42-year-old from Dundalk, Co Louth had pleaded not guilty to membership of an unlawful terrorist group, Islamic State, between October 28th, 2015 and December 1st, 2019.
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She was subsequently refused an appeal against a 15-month sentence and has now lodged an appeal against her conviction.
At the Court of Appeal on Friday, on the second day of her appeal hearing, Mr O’Higgins said the trial court, in its judgment, made reference to Lisa Smith’s “purpose of travel”, and found that this “cemented her membership of the organisation”.
He said all the prosecution could point to was her “having babies” and that because she was there as a westerner, she was there “as propaganda”.
He said the court never made a finding that either her religious belief or her “fear of damnation” were not sincere.
“She said I never joined Isis ... I was there to live in a state of sharia law and in compliance with my Muslim beliefs.”
He said confusion arose by equating travelling to an Islamic State with being a member of a terrorist organisation.
“In my submission no self-respecting legal system could tolerate convicting people of being a member of any unlawful organisation simply by living there ... but it could never make you a member in circumstances where your life there was completely and utterly anonymous.
“Even if she was a sympathiser, even if that’s established,” he said. “It could not be evidence to prove she was a member.”
Mr Justice John Edwards asked: “If she went there desiring to submit to their ruling jurisdiction and basically to live under their regime, is that not enough?”
“No,” replied Mr O’Higgins. “I say it’s not enough because it would rewrite Irish law on membership.”
Tony McGillicuddy SC, for the DPP, said the trial court was entitled to question whether there was an illegal group operating and to find that travelling to Syria, alongside Lisa Smith’s social media activity, “actually showed the motives of what the appellant was seeking to do”, both with her interaction’s with other people on messaging groups and her interactions with her husband in Tunisia when she “was seeking for him to come there and give the relevant oath to the organisation”.
The appeal had been listed for two days of hearing. However, following lengthy submissions before the Court of Appeal today, Mr Justice John Edwards adjourned the matter to April 28th to fix a date for the matter to be concluded.
