Lisa Smith’s lawyers have made a fresh bid to have the charges against her of funding terrorism and membership of Isis dismissed. If the three-judge, non-jury court does not accept the arguments made by her lawyers they will reveal their verdicts on May 30th.
During a brief hearing on Thursday Michael O’Higgins SC, for Ms Smith, said that a previous judgement of the High Court ruled that the Terrorism Offences Act 2005 can only be used to prosecute people for offences committed against the Irish State or Irish citizens abroad.
He said the Special Criminal Court is bound by the High Court judgement and therefore has no jurisdiction to try Ms Smith under the 2005 Act.
Counsel apologised to the court for not bringing the ruling to its attention during the trial which ran from late January and ended on March 30th. He said he was only made aware of it on the final day of the trial while he was delivering his closing speech and needed time to consider it.
The ruling referred to was delivered by Ms Justice Aileen Donnelly in relation to an extradition request for Charaf Damache, who was wanted by the US authorities to face terrorism charges.
Damache, aka “theblackflag”, conspired with American woman Colleen LaRose, known as “Jihad Jane” and others to carry out terror attacks in Europe and Asia. In 2014, LaRose was jailed for conspiring with Damache to try to kill Swedish artist Lars Vilks, who depicted the Prophet Mohammed on the head of a dog.
‘Substantial grounds’
Damache was involved in lengthy extradition proceedings brought by the State. However, the High Court refused to order his surrender after holding that there were “substantial grounds for believing that he will be at real risk of being subjected to inhumane and degrading treatment if extradited to the USA”.
Damache was released from custody but was later arrested and extradited to the US after he took the decision to travel to Spain. He pleaded guilty to the offences and was jailed for 15 years in October 2018.
Among the paragraphs relied on by Mr O’Higgins is one that states: “For such activity to be an offence in this jurisdiction, a relevant requirement is that the offence be directed against this State or a citizen of the State.”
Sean Gillane SC, for the Director of Public Prosecutions, said that the Criminal Justice (Terrorist Offences) Act 2005 could not have the meaning that was suggested by Mr O’Higgins.
He pointed out that the Court of Appeal subsequently commented on the judgement made by Ms Justice Donnelly in the Damache case, saying that she had “tried to deal with too much too quickly” without hearing arguments from lawyers.
Mr Gillane said the defence was relying on a short passage from a document that is more than 300 pages long. He said that the 2005 Act “couldn’t be clearer” in stating that it relates to an Irish citizen who has committed an offence abroad.
Mr O’Higgins responded that it is not for lawyers to argue whether the High Court judge was right or wrong as the Special Criminal Court is bound by the ruling of the High Court.
In April 2018, the State successfully appealed one section only of Ms Justice Donnelly’s judgement refusing Mr Damache’s surrender. That section appeared to suggest that the Director of Public Prosecutions is obliged to consult other EU member states in deciding whether to prosecute terrorism offences in Ireland.
Counsel for the State had argued before the Court of Appeal that the particular section of the High Court’s judgement was of “immense importance” and it was not “immediately clear quite how far reaching” its significance and impact was.
The Court of Appeal found that Ms Justice Donnelly’s decision in Part 12 of the judgement was made without any pleadings or submissions to assist her on the discrete issue. The parties had no notice or opportunity to advance any argument on the issue.
As a result, the relevant section of the judgement was set aside and the appeal allowed. The court also said that any issues relating to the 2005 Act would have to await further consideration by the High Court and an opportunity for all parties to make whatever arguments they wish.
Mr Justice Hunt, sitting at the Special Criminal Court with Judge Gerard Griffin and Judge Cormac Dunne, said the court will reveal its decision on the defence application on May 30th. If the court accepts jurisdiction it will also reveal its verdict on that date.
Ms Smith (40) from Dundalk, Co Louth travelled to Syria in 2015 after Isis leader Abu Bakr al-Baghdadi called on all Muslims to travel to the Islamic State.
She has pleaded not guilty to membership of an unlawful terrorist group, Islamic State, between October 28th, 2015 and December 1st, 2019. She has also pleaded not guilty to financing terrorism by sending €800 in assistance, via a Western Union money transfer, to a named man on May 6th, 2015.