Former soldier Lisa Smith’s conviction for membership of Islamic State is “sound” and should be upheld, the State has told the Court of Appeal.
Tony McGillicuddy SC, for the Director of Public Prosecutions (DPP), said Smith’s appeal against conviction suffered from “a huge deficit” and what was presented was a “self-serving and self-pitying” portrait.
Counsel pointed to the evidence in the case, much of which, he said, came from Ms Smith herself, from the text messages she sent to her own family and from her social media interactions.
“In my submission the verdict was safe and sound in this case,” he said. “I say the court ought to be satisfied that in relation to the grounds raised on all points, that those grounds ought to be dismissed.”
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However, defence senior counsel Michael O’Higgins said there was no evidence that Lisa Smith tried to recruit anyone to Islamic State, or that she tried to fundraise for them.
“There’s not a screed of information that suggests she made any contribution in that regard,” he said.
He asserted that simply travelling to an area where Islamic State operated did not prove she was a member.
“There is nothing in this case that says Lisa Smith actively contributed to what’s described as ‘a state-building project’. There isn’t a single activity in which the finger is pointed at her that says you contributed to state building,” he said. “No active participation is flagged up.”
In 2022, Smith (43) 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.
[ Lisa Smith lawyers argue no legal system could convict her of Isis membershipOpens in new window ]
Smith, 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.
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 third day of her appeal hearing, Mr McGillicuddy highlighted the evidence given during the trial by Carol Karimah Duffy who told the court Smith was at the “more political” and “harsh” end of Islam. She said Smith spoke about jihad and wanting a husband who was a “shahid” – a martyr for Islam.
He also highlighted the evidence given by Tania Joya Choudhury who was present with Smith for a time in Syria in 2013 and travelled over the border with her from Egypt. He said Ms Choudhury had given evidence that Smith told her she wanted to “help the rebels”.
She said the former soldier was “determined” to get to Syria and didn’t want to stay in Turkey.
He said evidence had been given by Ms Choudhury that Smith was “happy” and “optimistic” to be in Syria. He noted Ms Choudhury had told the court: “Lisa said she would fight because she had training.”
Mr McGillicuddy also referenced transcripts of Smith’s garda interviews when she spoke about getting a divorce because her husband would not come and join her in Syria and instead tried to get her to go to Turkey.
He said this had to be looked at in the context of expert evidence from Dr Florence Gaub, who had outlined how difficult it was for women to get a divorce under normal circumstances. He said the fact she was able to divorce her husband with relative ease was one of the “benefits” of being “an adherent of this cult”.
The barrister went on to explore the evidence given at trial by Dr Gaub, an expert on Middle Eastern conflicts, who addressed the issue of the one-finger salute, which, Mr McGillicuddy said, has been “completely co-opted” by Islamic State.
He referenced a photograph of Ms Smith taken in January 2013, in which she is pictured on a horse giving a one-finger salute.
He said Dr Gaub had confirmed the salute had been “misappropriated by members of Islamic State for people who associate with them”.
In response, Mr O’Higgins said, in relation to the one-fingered salute, Dr Gaub had “absolutely accepted” that this had only come into being in mid-2014. He said the photo in question had been taken in January 2013 in Tunisia, which was “a world away from what was happening” in Syria.
He said the Special Criminal Court’s judgment had referred to Smith’s conduct.
“What conduct was it?” he said. “What conduct did she do that says you’re a member of this terrorist organisation?”
Counsel said “not one single” example of conduct was cited.
He said the court’s view was that “to be there is enough. That is their finding”.
Mr Justice John Edwards said the court would reserve judgment.
