Lisa Smith trial: Prosecution evidence 'falls short', says defence barrister

The trial finished on Wednesday but the three judges of the non-jury court have not yet indicated when they will deliver a verdict.
Lisa Smith trial: Prosecution evidence 'falls short', says defence barrister

Eoin Reynolds

The prosecution evidence against former soldier Lisa Smith, who denies membership of Isis, falls short of what is required, a defence barrister has told her trial.

Ms Smith (40) has been on trial for nine weeks at the Special Criminal Court.

The trial finished on Wednesday but the three judges of the non-jury court have not yet indicated when they will deliver a verdict.

The case will be mentioned again next Thursday, April 7th and Ms Smith's barrister Michael O'Higgins SC on Wednesday said that he may have further submissions to make at that stage.

Ms Smith 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 he had created.

The accused 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.

Mr O'Higgins finished his closing speech to the judges this morning.

He began by saying that the methodology used by prosecution witness Dr Florence Gaub was flawed, and he is concerned that the prosecution is relying on her.

Dr Gaub, a social scientist and expert on Middle Eastern conflicts, told the trial that anyone who travelled to Isis-controlled territory and engaged with the state became a member of the terrorist organisation.

Preferential treatment

She said that those who travelled engaged in a reciprocal relationship whereby they provided the tools for state-building and in return got preferential treatment when it came to food and services, including internet access and housing.

Mr O'Higgins said Dr Gaub, in her report for the court, had used inaccurate language that described everyone who travelled to the Islamic State as a "foreign fighter" regardless of what role they actually played.

He said there was no factual basis for her claim that all food distribution in the area was controlled by Isis or for the claim that westerners received preferential treatment.

Dr Gaub conceded she had not been to Syria during the conflict and Mr O'Higgins questioned how she could have concluded that people who worked as nurses or teachers were guilty of Isis membership but not taxi drivers.

He compared her description of the reciprocal relationship between Islamic State and those living there to the situation of residents of Republican-controlled areas of Belfast.

Mr O'Higgins said that whether they approved or not, they benefitted from the local transport networks created by the IRA or from their efforts to curb anti-social behaviour by knee-capping or beating joy-riders and others.

He added: "No-one in their right mind would say that reciprocal benefit would mean that if you stayed there you were a member of an illegal organisation. The logic underpinning the entire opinion is woolly in the extreme and doesn't stand up to the high level of evidence required to impose criminal liability on someone."

He questioned why her report did not conclude that religion was a major motivator for those travelling to the Islamic State. Mr O'Higgins said "religious fervour is at the heart of this" and questioned the quality of her evidence given that she placed so little importance on it.

Respected voices

Professor Hugh Kennedy, who was called by the defence, told the trial that there were respected voices within the Islamic community saying that the caliphate announced by al-Baghdadi was legitimate.

Mr O'Higgins said that given the debate within Islam, those outside would have "little or no hope in puzzling it out and the fact it drew in such a large number of people from so many sources tells its own story."

He said that the court cannot simply say that everyone who was inside the geographical boundary of Isis-controlled territory is "prima facie a terrorist".

To be a member, he said, requires the mental element of deciding that you want to be a member and the organisation must agree that you are a member. He said the prosecution case against Ms Smith at its height "might at a stretch be argued as some form of assistance" but could not equal membership.

The only positive act the prosecution could point to, Mr O'Higgins said, is that Ms Smith kept a home for her husband. He said the UN High Commission had condemned Iraqi courts for convicting on similar grounds, adding: "If they condemned it there, I'm at a loss as to how the Director of Public Prosecutions on Parkgate Street can say it."

Obligation to travel

Counsel said the interviews conducted by gardaí with his client were unfair in that he said the detectives did not properly answer Ms Smith when she asked if she was being accused of doing something wrong by going to the Islamic State or for something she did while there.

Mr O'Higgins asked the court to consider whether Ms Smith would have travelled to Syria had al-Baghdadi not declared a caliphate to which she felt an obligation to travel. He said the likely answer is no.

Mr O'Higgins said prosecution barrister Sean Gillane SC had spoken with "a degree of fervour about the disgusting nature" of the videos of Isis atrocities that Ms Smith viewed before travelling to Syria.

While counsel accepted the videos were disgusting, he said the last public execution using a guillotine was carried out in 1939 in front of a "raucous crowd", some of whom dipped their handkerchiefs into the blood of the deceased to keep as a souvenir.

Counsel said he didn't want to engage in "whataboutery" but, he said, there are about 6,000 deaths attributed to Isis while the Assad regime is said to have killed some 200,000.

He questioned why Mr Gillane would think such acts would make Ms Smith change her behaviour given that Saudi Arabia in recent weeks beheaded 81 people. He added: "Does anyone here believe who will buy one less barrel of oil from Saudi Arabia or that the Americans will cancel one arms deal?"

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