The only overt act relied upon by the State to convict a former soldier of being a member of the terrorist organisation Islamic State was “her role as a housewife” cooking and cleaning for her husband, her legal team has argued.
“Being an avid supporter is not membership, ditto someone who agrees with some of the organisation’s aims, ditto someone who benefits from them,” said Michael O’Higgins SC, telling the Court of Appeal that Lisa Smith (43) only travelled to Syria through “a religious obligation” and had not carried out any acts as a member of Isis.
In 2022, Smith became the first person to be convicted in an Irish court of an Islamist terrorist offence committed abroad when the three-judge, non-jury Special Criminal Court found that she joined Isis when she travelled to Syria in 2015.
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.
Representing Smith at the Court of Appeal on Thursday, Mr O’Higgins said that travelling to Syria and living there does not constitute membership of Isis. He made a comparison with Northern Ireland where paramilitaries ran their own justice system, but people who benefited from this did not become members of the IRA.
“Membership is not a state of mind, it’s not a virus, it’s not a gene, it’s not an affinity,” said Mr O’Higgins, going on to say that “there is no such thing as membership by a process of osmosis, there must be application to join and there must be an acceptance of that”.
Mr Justice John Edwards said that the essence of an illegal organisation is that “there is no office you can apply to and get back a card” nor any records of membership.
To this, Mr O’Higgins said there must be “a meeting of minds”, with someone who says they want to join the organisation and someone who accepts.
Again referencing the situation in Northern Ireland, counsel said that on the Falls Road or the Shankill Road, “the women cooked meals for their men, but no one is saying they should be jailed”.
He added that the prosecution could not point to one act of wrongdoing by Smith.
“People have certain beliefs, that’s their right, and if you disagree or disapprove that doesn’t inhibit that right,” said Mr O’Higgins, adding that Smith converted to being a Muslim and wanted to live in an area of Sharia Law.
Mr Justice Edwards said that Smith travelled to Syria “with her eyes open”, meaning she was fully aware of the “subversive nature of the entity running the state” and had submitted to their jurisdiction.
Mr O’Higgins said that Smith explained that she had travelled to Syria out of a religious obligation. He said that Smith wanted to live in an area where the values of Sharia law were held, believing that if she did not go there, she would go to hell.
Mr O’Higgins said that here in Ireland, previous generations had known that “the fear of hell was very real,” yet the court had denied her this reason for being there.
Mr Justice Edwards said that there are other areas in the world where sharia law exists, so she did not have to go to an area where Isis operates.
Mr O’Higgins acknowledged that Smith had communicated with “a gallery of confederates on social media,” with discussion of public executions taking place, but he said that Smith challenged these ideas and was “bombarded with scripture references”.
Mr O’Higgins said that the nub of the prosecution case was that Smith had been keeping house, cooking, cleaning and having babies conceived to be “future warriors”.
“No one gets jailed for cooking meals, they get jailed for membership,” said Mr O’Higgins, adding that the only thing the prosecution could point to was that Smith fed and looked after her husband, which they claimed was “helping the war effort”.
“The only overt act the prosecution relied on was her role as a housewife,” he said.
The appeal continues.
