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Explainer: Any potential Lisa Smith prosecution would face challenges due to 'insufficient' Irish legislation

Legal experts have said that Irish prosecutors will have limited options if they charge Lisa Smith.

Image: Getty

THE CASE OF LISA Smith has revealed the limited options under Irish law for dealing with people suspected of involvement in international terrorism, legal experts have warned. 

While Smith is likely to face arrest when she returns to Ireland in the coming weeks, prosecution could prove a challenge under current legislation, which is largely focused on tackling domestic terrorism.

Smith, who was married to an Islamic State fighter and lived in Syria until Turkey’s recent incursion into the country, is due to be repatriated to Ireland. She will have to undergo a security assessment when she returns to Ireland. 

Jean Molloy, a researcher at Maynooth University and expert on Islamic State and the law on foreign fighters, said that Smith “can certainly be arrested when she arrives back”. 

“What they can charge her with at the moment is quite limited because of our current legislation,” she said. ”We don’t have sufficient legislation to deal with foreign fighters,” Molloy said.

Under current law, there are only a few charges that could potentially be made against her that are relevant to her role in Islamic State. 

Smith has repeatedly claimed that she never once held a firearm or instructed ISIS fighters on how to assemble, maintain or fire weapons. This is something which gardaí are investigating. 

Under current law, there are three main areas under which any potential prosecution could be considered: 

  • membership of a terrorist organisation
  • participation in unlawful military exercises
  • engaging in terrorist activity 

In reality, it is only the first area that prosecutors are likely to focus on, before bringing any case against Smith. 

Proving membership of a terrorist organisation is easier than proving either of the other two areas. Anyone found guilty could be sentenced to up to 10 years in prison. 

However, Molloy said that the courts would take into account a range of factors, some of them mitigating, including the fact that Smith has a young child. 

There have been some suggestions that gardaí could detain and charge Smith under the Offences Against the State Act and the Criminal Justice (Terrorist Offences) Act 2005. 

However, neither of those pieces of legislation were designed for prosecuting international terrorism carried out in other countries. 

“It’s getting into the territory of what are her offences against the Irish state?” Molloy said, who suggested that charges against her under those laws may not be able to stand up in court. 

New law

A new bill, the Criminal Justice (Terrorist Offences) Bill, is currently being drafted by the government. 

The bill, which would give effect to an EU directive on addressing foreign fighters, would fill the gap under Irish law and make it easier to prosecute returning Islamic State fighters. 

However, it would not assist in any prosecution against Smith given the well-recognised legal principle against legislation applying retrospectively, meaning any new law would not make it easier to bring Smith to court. 

One major barrier, regardless of the state of the law, is simply the lack of evidence. Gardaí are unlikely to be able to travel out to Syria or Turkey to gather evidence against Smith and it’s unclear how much information international security services would have against her, if any. 

Even if new evidence came to light that Smith had committed terrorism offences, which could be accepted by the courts, prosecutors would still run into the problem of the lack of legislation relevant to international terror crimes. 

Special Criminal Court

The Special Criminal Court, which sits without a jury, has long been used to prosecute people accused of IRA-related terrorism.

It remains to be seen if the court would be used in any trial of Smith – it’s a decision ultimately to be made by the Director of Public Prosecution.

It’s a court used where there are fears “witnesses could be tampered with or that there could be a threat to the wider community,” Molloy said. 

The decision comes down to whether a trial in open court would be more transparent versus whether the state would fear sensitive material could come out during a trial.

Tom Clonan, a security expert, agreed that the Special Criminal Court could be an option. 

Clonan said that he expected that she will be the subject of investigation – but she could also provide crucial information to the gardaí. 

“My best guess is that they would see her value as an informant on other Irish and British passport holders who have gone to the caliphate,” he said.

“My concern would not be so much about Lisa Smith returning, but other Irish passport holders who are under the radar and returning home,” he said. 

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