Thursday, 9 Jul 2020

Intelligence and information must be turned into evidence that stands up to scrutiny in court of law

For years, gardaí and the military have been gathering information and intelligence, with the aid of their international security partners, to establish the extent and significance of the growing links between Lisa Smith and Isil.

But no amount of information or intelligence is sufficient to sustain a criminal charge against a suspect.

It must be turned into evidence that will stand up to scrutiny by a court of law.

And in the case of Ms Smith, this is uncharted territory for gardaí and their legal advisers as it is the first time that the main legislation in this instance, the Criminal Justice (Terrorist Offences) Act 2005, would be used against an Irish person suspected of engaging in terrorist activities overseas.

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The 2005 act was introduced to boost the State’s response to international terrorism and, as well as giving effect to several international directives relating to terrorism, it also meets commitments the State has undertaken as part of the EU and the broader international community, including the United Nations.

It also amended existing Irish law, particularly the Offences Against the State Acts, our primary legislative weapon against the Provisional IRA and the various offshoots of that terrorist organisation, to tackle the problem of international terrorism in a domestic context.


According to lawyers, international best practice suggests combating the terrorist threat should involve not only traditional security and legislative responses, but also the development of an understanding of the factors motivating people to embrace radical or extremist ideologies.

A section of the 2005 act says a person is guilty of an offence if (a) he/she engages in a terrorist activity or a terrorist-linked activity, or attempts to engage in similar activity, or makes a threat to engage in this activity; or (b) commits outside the State an act that would constitute an offence under the Offences Against the State 1939 or the 1998 amendment, which was brought in after the dissident IRA bomb blast in Omagh.

Under that legislation, membership of an unlawful organisation is a criminal offence carrying a maximum penalty of seven years with a key provision allowing the opinion of a senior garda officer, not below the rank of chief superintendent, to be treated as evidence that a person is a member of an unlawful organisation.

After the events of 9/11 in 2001, Ireland, in line with other EU member states, introduced more wide-ranging anti-terrorism laws.

This covered activities overseas, among other things.

The criminal investigation carried out by gardaí and military intelligence has resulted in a large dossier of information about Ms Smith’s contacts online at home and abroad with other Isil sympathisers as well as her movements when she travelled to Tunisia, Turkey and Syria.

But whether that translates into evidence to sustain a criminal prosecution is another matter. A key element in that process is the response given by Ms Smith while being held for questioning at Kevin Street garda station.

Yesterday, Ms Smith’s period of detention was extended by 24 hours by a Garda chief superintendent.

Over the past year, she has consistently denied suggestions that she was actively involved in any terrorist activities.

The final decision rests with the office of the Director of Public Prosecutions after it receives a file on Ms Smith from the Garda investigation team.

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