LAST UPDATE | 6 Oct

THE COURT OF Appeal has upheld former soldier Lisa Smith’s conviction for membership of the terrorist group Islamic State.

Delivering judgment on behalf of the three-judge court on Tuesday, Mr Justice John Edwards said there was no doubt that the circumstances of Smith’s voluntary travel to Islamic State-controlled territory were “properly to be regarded as being capable of constituting sufficient acts of participation”.

“The establishment of membership did not require proof of combat, military activity, or operational acts such as fundraising, training or dissemination of propaganda,” he said.

“Voluntary travel and migration to Islamic State-controlled territory in support of the organisation’s state-building project was potentially, and subject to contextualisation, capable of constituting a sufficient act of participation.”

He said the Special Criminal Court (SCC), having carried out a “rigorous” and “thorough” analysis of the evidence, concluded that adherence through participation had been demonstrated and that there was the required reciprocity between Smith and the Islamic State.

In 2022, Smith (44) 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.

Smith, from Dundalk, Co Louth, had pleaded not guilty to membership of an unlawful terrorist group, Islamic State, between 28 October 2015 and 1 December 2019.

It was the prosecution case at Smith’s trial that she did not embark on a “lawful and wholesome journey” to answer a religious calling.

Rather, they argued that Smith, having analysed the call by terrorist leader Abu Bakr al-Baghdadi, migrated to Isis-controlled territory where she engaged in a reciprocal relationship with the Islamic State and then moved with it as it lost territory following the fall of Raqqa in 2016.

Sentencing the former Irish Defence Forces member at the SCC, Mr Justice Tony Hunt noted that while Smith was at a low risk of re-offending, she was “persistent and determined” in her efforts to travel to Syria and join Isis and had shown no remorse for her actions.

Mr Justice Hunt said that Smith went to Syria with her “eyes wide open”, having watched videos of Isis atrocities and having taken part in online discussions about Isis with jihadis from Germany, Australia, America and part of the Middle East.

Smith appealed her conviction after her bid to overturn her 15-month sentence was rejected by the Court of Appeal in 2023.

At the hearing last year, Smith’s senior counsel Michael O’Higgins said the only overt act relied upon by the State to convict the former soldier of being a member of the terrorist organisation Islamic State was “her role as a housewife”, cooking and cleaning for her husband.

However, Mr Justice Edwards noted the SCC had “explicitly disavowed” treating childbirth or domestic work as a basis for imputing guilt.

The trial court instead regarded the “critical circumstances” involved Smith’s deliberate travel to Isis territory, as well as her allegiance to the Isis project, voluntary submission to its authority, acceptance of and by its structures and continued residence within its territory until the fall of Baghuz.

Mr O’Higgins argued that Smith had travelled to Syria through “a religious obligation” and had not carried out any acts as a member of Isis.

Confusion arose, counsel said, by equating travelling to an Islamic State with being a member of a terrorist organisation. He said even if Smith were “a sympathiser”, it did not prove she was a member.

However, Tony McGillicuddy SC, for the Director of Public Prosecutions (DPP) contended 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”.

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 dismissing the appeal, Mr Justice Edwards said a perception of religious duty did not render Smith “an automaton”. He noted there was clear evidence from her social media exchanges that she appreciated that deemed joinder of Islamic State could potentially render a person criminally liable.

Regardless of Smith’s beliefs as to her religious duty, she retained a “free choice to comply with the criminal law”, he said.

“She strategically chose to travel and migrate to caliphate-controlled territory, on the basis of an express calculus that by not doing so it would, regardless of potential consequences in this life, inure to her long term benefit in the afterlife,” the judge added.

The SCC was correct, Mr Justice Edwards said, in taking the view that while Smith’s actions may have been influenced by a strongly held perception of religious duty, that fact alone “could not serve to negatise criminal liability” on her part if the evidence of her conduct supported a conclusion that the legal test for membership was satisfied.

Mr O’Higgins had also argued that no court in Ireland had ever convicted someone on the basis that if they came here with a mindset that was supportive of the IRA, they were automatically a member of the IRA.

Mr Justice Edwards said the appellant’s “assumption” that Islamic State or Isis is analogous to the IRA or UVF was “flawed”.

He said the evidence was that Islamic State or Isis, led by Abu Bakr al-Baghadadi, was “not simply a terrorist army”.

“It declared itself to be a caliphate, exercised governmental control, administered courts, taxation, policing, housing and migration, and actively encouraged Muslims worldwide to relocate to its territory as part of a state-building project.”

In that context, the judge said, the significance of travel and migration “changes fundamentally”.

“A person who moved to West Belfast during the Troubles did not thereby join the IRA, because the IRA never claimed governmental sovereignty over the territory,” he said.

“By contrast, Islamic State invited foreign Muslims to migrate specifically to strengthen the entity it had established. Thus, travel was not simply a geographical movement; it was capable of being regarded as participation in the project which Islamic State itself regarded as central to its existence.”

The court rejected all grounds raised by Smith and the appeal was therefore dismissed.