LISA SMITH REMAINS in Garda custody after being arrested at Dublin Airport yesterday morning.
The former Defence Forces member, who was flown in from Turkey on a commercial flight yesterday morning, is now being questioned by gardaí about her alleged involvement with the so-called Islamic State.
The Dundalk native, who flew to Ireland along with her two-year old daughter and was accompanied by Army Ranger Wing members and other Irish officials, was arrested shortly after her flight landed.
She’s being questioned in Dublin’s Kevin Street Garda station on suspicion of terrorist offences following her deportation from Turkey.
From the time of her arrest she can be questioned for up to 72 hours before being either released or charged. The first 24-hour questioning period was extended this morning, as was largely expected, for another 24 hours.
Under Section 30 of the Offences Against the State Act, under which Smith is being held, the local superintendent can decide to extend the questioning period once the first 24-hour period has elapsed. Tomorrow, if a further 24 hours is required, an application must be made to court.
Under the legislation, Smith will be allowed rest periods at night.
Speaking to RTÉ’s Morning Ireland programme today, Smith’s solicitor Darragh Mackin contended that the case against her is “inherently weak”.
“I think it’s clear that she does not pledge allegiance to the terrorist organisation ISIS,” he said. “That was her case publicly.”
There’s absolutely no evidence that she’s been in any terrorist organisation or terrorist group.
The case has been covered internationally, with both CNN and the BBC covering Smith’s return to Ireland.
So, what’s likely to happen next in the Lisa Smith case? And if she is prosecuted, on what charges will she be pursued by the Director of Public Prosecutions?
The evidence
The 37-year-old woman left Ireland in late 2013 and went to Tunisia, where she met and married a Muslim man from the UK.
By 2015, she had travelled to Syria and lived in an Isis stronghold in the Baghuz region of the country.
The father of her child is believed to have been killed while fighting for Islamic State in early 2019.
Smith had lived in Syria until Turkey’s incursion into the country. She was captured by Kurdish forces in the north-east of the country after Islamic State lost country of the territory.
Now that she’s in custody gardaí will be trying to compile evidence to make a case against Smith, who has repeatedly claimed that she never once held a firearm or instructed ISIS fighters on how to assemble, maintain or fire weapons.
Smith has said that she was visited by the FBI when she was in Syria and agents had taken her fingerprints and DNA samples.
It’s been reported in recent days that gardaí have gathered information from international intelligence services on Smith and her movements in recent years.
This may form part of any case against her for alleged crimes under Irish law.
In a statement on Sunday, Minister for Justice Charlie Flanagan called it a “sensitive” case.
“An Garda Síochána and the Director of Public Prosecutions are responsible for criminal investigations based on facts and evidence in all cases and it would not be appropriate for me to comment on those matters,” he said.
“This is a sensitive case and I want to reassure people that all relevant State agencies are closely involved.”
Gardaí said that Smith’s daughter is being cared for by relatives, while Tusla is also involved in ensuring that the child is cared for.
Legislation
It’s expected that a file will be sent to the Director of Public Prosecutions this week after Smith is interviewed by Gardaí.
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.
The most likely charge will be membership of a terrorist organisation under the Offences Against the State Act and the Criminal Justice (Terrorist Offences) Act 2005.
That legislation updated the Offences Against the State Act, designed to tackle the IRA, to deal with foreign fighters.
Under Irish law, there is no list of specific groups designated as “terrorists”.
A Department of Justice spokesperson said that one the reasons for this is to “avoid the need to have to list or schedule of individual groups in order to take action against them, as these groups are less defined and more changeable now than in the past”.
The spokesperson confirmed that Isis is seen as a terrorist group under the legislation.
However, concerns have been expressed that Ireland’s legislation was not designed for prosecuting international terrorism carried out in other states.
“It’s getting into the territory of what are her offences against the Irish state?” Jean Molloy, a researcher at Maynooth University and expert on Islamic State, told TheJournal.ie last month.
Local Louth TD Peter Fitzpatrick, who has been speaking on behalf of Smith’s family, said that she is “co-operating with the Garda Special Branch”.
Asked what he expected to happen to Smith at the end of her questioning period he said:
“That’s up to the Department of Foreign Affairs and the gardaí,” he said.
All the family wanted is for Lisa and the grandchild to come home.
Person of high interest
Aside from simply being investigated for any offences under Irish law, Gardaí will be interested in talking to Smith for information on other Isis fighters.
Writing for this website security expert Tom Clonan said: “Smith’s potential knowledge of their identities is timely and will make her a person of high interest for the Irish and British authorities”.
Prosecution
If Smith is charged with any alleged offences, it is up to the Director of Public Prosecutions whether she is tried in the Special Criminal Court or in the High Court.
The Special Criminal Court sits without a jury and was traditionally used to prosecute people accused of IRA-related terrorism.
The reason any prosecution could prove difficult is because Ireland has no legislation that is custom-made to deal with foreign fighters.
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.
It could not be used in any prosecution against Smith though as there is a well-established legal principle that legislation can’t apply retrospectively.
For this reason if charges are brought, it will likely be under the aforementioned Criminal Justice (Terrorist Offences) Act 2005, which was specifically designed to meet UN and EU security commitments.
Whatever happens, it could be several days at least before we know whether or not there will even be enough evidence for gardaí to charge Smith.
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