The line between a sympathiser and member of the so-called Islamic State (IS) “was crossed” by a former Irish soldier, a Dublin court has heard.
Defence barrister for Lisa Smith had earlier argued her IS membership conviction “falls short of Irish law” and compared it with how membership of the IRA and organised crime groups is defined.
The prosecution countered that “the parameters of the GAA club” cannot be applied to the case as if there was a “one-size-fits-all” approach to memberships.
Lisa Smith, 43, from Dundalk in Co Louth, is appealing against her conviction for membership of the IS terror group at the Court of Appeal.
The ex-Defence Forces member was found guilty of IS membership in 2022, but was cleared of financing terrorism, after a nine-week trial at Dublin’s non-jury Special Criminal Court.
Smith, a convert to Islam, went to Syria in 2015 after terrorist leader Abu Bakr al-Baghdadi called on Muslims to travel there.
She had pleaded not guilty to charges of membership of IS and providing funds to benefit the group.
Smith was sentenced to 15 months in prison and lost an appeal against the severity of the sentence in 2023.
Opening the case at the Court of Appeal on Thursday, her barrister Michael O’Higgins SC said there was no “smoking gun or burning match” that Smith did anything for IS while she lived in Syria.
He said it was not possible to join a terrorist organisation by “osmosis” and said she had led a “totally anonymous” life as a housewife during her time there, where she was subjected to serious assaults by her former husband.
Continuing his submissions to the three-judge court on Friday, Mr O’Higgins compared Smith’s IS membership conviction with the way membership of the IRA and of crime gangs is defined.
He said it was “a flawed approach” to conclude someone was an IS member because they travelled to an area where Sharia law is applied.
“To put women in jail for cooking and cleaning for their husband, and believing what their husband believes in, is not a legal basis for convicting a person of serious offences,” he said.
He said that none of the women in communities in Northern Ireland who “submitted to the jurisdiction of paramilitaries” and benefited from a reduction in antisocial behaviour would be deemed IRA members.
“This passive business of living in the house and living among them falls way short of participating in the group,” Mr O’Higgins said.
“Not always but invariably the conduct that is at the heart of an IRA membership (case) does involve moving weapons, it’s crime involved, it’s hiring houses for the purpose of furthering some IRA operation down the line.
“All involve acts that are overtly criminal or lawful acts with the purposes of obtaining a criminal result,” he said, such as renting a car to be used in a getaway.
Mr Justice John Edwards said Smith went to IS territory “desiring to submit to their jurisdiction and live under their regime, is that not enough?”
Mr O’Higgins replied that it was not and the argument “falls short of Irish law”.
He said there are several steps to joining an organisation, such as wanting to join it, the organisation accepting you, and then joining it.
He said if you bring that argument to its logical conclusion, what does it mean for organised criminal gangs that operate in communities, sometimes linked to local boxing clubs.
“At what point do members of the community become involved in a criminal gang?” he said.
“There must be strict criteria, there must be moral culpability, there must be legal culpability.”
He said there was no evidence that Smith made bay’ah, a ceremony in which a person swears an oath to the caliph, not IS, nor evidence she received special treatment or benefits.
He added: “Even if you were some type of Hollywood celebrity walking around wearing the outer normality of the regime as a badge of honour, if you weren’t doing it as a part of membership duties, if you did that all day every day, it could never make you a member, especially if the life you led there was completely and utterly anonymous.”
Mr O’Higgins said the UK had criminalised travel to parts of Syria, and while an EU directive had been prepared to criminalise travel, that legislation has not been enacted “in any way shape or form” in Ireland, meaning that Smith’s travel was lawful.
Prosecuting barrister Tony McGillicuddy SC said Mr O’Higgins was “trying to apply the parameters of the GAA club or so forth to a question of fact”.
He said the idea that there is “one set of criteria” for all memberships was “not appropriate”, and cannot be applied as if there was a “one-size-fits-all” approach.
He said that trying to compare Smith’s case with “events on this island in the past 40 years are just inapposite” and the trial court was “right to reject them”.
“In this trial what you have was evidence of a group that was operating as a proto-state but also with murderous intent towards those who were a non-believer … and whether the appellant was a participant to the extent that she was a member, and we say that she was.”
He accepted that the court would need to be careful in considering whether someone is a member or a sympathiser, but he said “that line was crossed by the appellant”.
He acknowledged there must be adherence and “some evidence of participation”, and said that the profession by Smith was “the act of travelling” to Syria and her social media posts.
He referred to what he said were “revealing” social media interactions by Smith that were presented during the 2022 trial.
“I don’t agree with Mr O’Higgins on this. One single act by a person is enough to establish membership,” he said.
The case is due for mention on April 29 at 10.30am for the purpose of fixing a date later in the term when the case can conclude.
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