Former Irish soldier who lived in Islamic State territory denies she was an IS fighter, writes Cormac O’Keeffe
While there is confusion about what charges could be brought against Lisa Smith, who lived in territory controlled by Islamic State (IS), her arrest indicates that the authorities believe there is the potential to prosecute her for terrorism offences.
The garda section leading the investigation — Security and Intelligence and its operational arm, the Special Detective Unit — had been in contact with the Director of Public Prosecutions to establish if there was a legal basis to arrest her under Irish anti-terrorism laws, and, consequently, if there is the potential to charge her.
Security sources said that to convince the DPP, gardaí would need to have detailed evidence.
In an interview with the Irish Examiner and RTÉ last October, the Assistant Commissioner for Security and Intelligence, Michael O’Sullivan, confirmed that Ms Smith was subject to criminal investigation for offences that may have been committed under the Criminal Justice (Terrorist Offences) Act 2005.
He said her “movements and associations” in North Africa and Syria form part of this.
The 2005 legislation was introduced to address international terrorism, complementing the Offences Against the State Act, 1939, which targeted domestic subversion.
In a provision that would include IS, Section 5 of the 2005 act states that a “terrorist group that engages in, promotes, encourages, or advocates the commission, in or outside the State, of a terrorist activity, is an unlawful organisation,” as defined under the 1939 act.
The membership offence would necessitate proving that Ms Smith was a member of IS.
While the sworn belief of a chief superintendent can be used for the membership offence, it has been for domestic terrorist groups.
On Today with Sean O’Rourke, Conor Hanley, a lecturer at law in NUI Galway, said pursuing a membership charge against Ms Smith would be “a lot more difficult” than in a domestic case.
“If Ms Smith is charged with activities taking place in Syria, it’s very difficult to see how a chief superintendent could legitimately form an opinion, given his or her location in Ireland and activities taking place in Syria,” said Dr Hanley.
However, he added: “I could be wrong; we are in new territory, unchartered waters here.”
He also said that further terrorist-related offences were introduced in 2015, but said that unlike membership, there was no jurisprudence on the offences.
An offence under the Offences Against the State Act refers to training someone in the use of firearms.
Photographs have appeared purporting to show Ms Smith brandishing firearms in Tunisia and claims were also made of her training children in Raqqa, Syria, in firearms use, though she rejected this in interviews.
If gardaí gathered evidence of these, for example through intelligence from foreign security services, it could support such a case.
There have also been claims of Ms Smith sending messages through social media, including an image of a girl wearing Islamic clothing shooting a weapon.
If gardaí have gathered images of this type, it could support evidence of ‘public provocation’.
The 2005 act also defines terrorist activity as the intent of “seriously intimidating a population,” which IS undoubtedly did to various groups, including the Yazidis and Kurds.
The other two offences — “unduly compelling a government” and “seriously destabilising” the structures of a State, as in Syria — could also be applied to IS.
However, gardaí would have to prove Ms Smith took part in activities or attempted to — just living in Islamic State territory might not, of itself, be enough.
Sources have indicated that foreign intelligence services and Ms Smith’s comments, and admissions, in interviews, form key parts of their case.
Her solicitor, Darragh Mackin, said that his client categorically denied any involvement in terrorist offences or involvement in IS.
He said that being in a particular location, such as Raqqa, was not a terrorist offence and that being a ‘citizen’ of the Islamic State territory did not mean that she was a member of IS.
He said claims that Ms Smith was involved in training or violence were hearsay and not one witness has come forward.
Whether the garda’s case could involve such a witness, or the testimony of a foreign intelligence officer, is not known.
In his interview, Mr O’Sullivan discussed An Garda Síochána’s progress in securing evidence from Syria, saying: “There are avenues open to us, in terms of where we can get evidence and how we can get that evidence. We are working very closely with the Director of Public Prosecutions on how to put information we receive into evidence.
“Now, I’m much more optimistic in how we can pursue an investigation and bring a comprehensive file to the DPP.”
He recognised the law in relation to terrorist offences committed abroad was “untested” and added: “At the end of the day, whether it will reach the threshold for a prosecution, that will rest with the DPP, but we are satisfied we can do a comprehensive investigation.”