Director of Public Prosecutions v Smith
|Mr Justice Edwards
|08 March 2023
| IECA 98
|Record No: 149/2022
|Court of Appeal (Ireland)
 IECA 98
Record No: 149/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered by Mr Justice Edwards on the 8th of March, 2023.
Following a trial in the Special Criminal Court (i.e “SCC”) the appellant was convicted on the 30th May 2022 of Count No. 1 on the indictment, that of an offence of membership of a terrorist group which is an unlawful organisation contrary to ss. 6(1)(b)(i) and 7(2) of the Criminal Justice (Terrorist Offences) Act 2005 (i.e “the Act of 2005”), between the 28th of October 2015 and the 1st of December 2019 inclusive, outside of the State and which if committed in the State would constitute an offence under s. 21 of the Offences Against the State Act 1939 (i.e. “the Act of 1939”) as amended by s. 5 of the Act of 2005.
The offence was particularised as membership of an organisation styling itself the Islamic State of Iraq and the Levant (“ISIL”), also known as Dawlat al-Iraq al-Islamiyyah, Islamic State of Iraq (“ISI”), Islamic State of Iraq and Syria (“ISIS”) and Dawlat al-Islamiyyah fi al-Iraq wa al-Sham otherwise known as “Daesh”, and the Islamic State in Iraq and al-Sham.
The SCC found the appellant not guilty of Count No. 2 on the indictment, that of the attempted financing of terrorism, contrary to ss. 13(4) and 8(b) of the Act of 2005.
On the 22nd of July 2022 the appellant was sentenced by the SCC to a term of imprisonment of 15 months in relation to Count No.1, back dated to 21st June 2022 to account for time spent in custody.
The appellant has appealed against the severity of her sentence.
The appellant's trial in the SCC lasted 37 days in total, spread intermittently between the 25th of January 2022 when the case was opened, and the 22nd of July 2022 when she was sentenced. The SCC delivered its verdict convicting the appellant on the 30th of May 2022, and that court's lengthy judgment (running to 42 pages of transcript) contains the findings of fact upon which it principally relied for the purposes of sentencing. In circumstances where the trial court had made extensive findings of fact in its said judgment, there was no further evidence adduced amounting to a rehearsal of, or summarisation of, the facts, in connection with the subsequent sentencing of the appellant; although brief evidence was heard from a Garda Sergeant Fiona Morrison on the 11th of July 2022 confirming that the appellant had no previous convictions and that she had been compliant with the terms of her bail. The SCC did, however, receive and consider a number of reports submitted on behalf of the appellant (to which more detailed reference will be made later in this judgment), and also heard a plea in mitigation from counsel on behalf of the appellant.
In setting out the facts as established in evidence we will of course reference the specific findings of the SCC as set out in its judgment of the 30th of May 2022. However, where we consider it helpful to do so either for completeness, or to provide better context, we will also refer to other evidence heard at the trial that the SCC either did not find it necessary to specifically reference, or perhaps only felt it necessary to reference briefly.
We should start by observing that the Irish Defence Forces as statutorily structured are comprised of a Permanent Defence Force (PDF) and a Reserve Defence Force (RDF) (formerly the FCA). The PDF in turn is comprised of the Army, the Aer Corps, and the Naval Service. The SCC received evidence that the appellant, who is originally from Dundalk in County Louth, joined the PDF at the age of 19 years and served for 10 years between 2001 and 2011. She initially served for 5 years as a private soldier in the Army before transferring to the Aer Corps where she served for a further 4 years before finally returning to serve in the transport section of the Army for approximately one further year. While serving in the Aer Corps her duties included acting as a flight attendant on the government jet.
The SCC heard evidence that in 2011 the appellant converted to Islam and due to perceived inconsistencies between the demands and requirements of her faith and her professional role in the PDF, including the refusal of her application to be permitted to wear a hijab or head covering while on duty, she applied for discharge from the PDF which was granted in November of the same year.
The SCC heard evidence that a Ms. Carol Karimah Duffy was an influential person in the appellant's life in 2010 and for a time thereafter until they eventually fell out. Ms. Duffy testified at the trial that she had known the appellant and her family when living in Dundalk as a child but had lost contact with her during the subsequent years. Ms. Duffy was herself a convert to Islam and a Salafist Muslim, explained by the witness in cross-examination as a Sunni Muslim who follows the Salaf, being the traditions and lifestyle of the companions of the prophet Muhammad, (and according to another witness, a Ms. Gillian McNicoll, those of the prophet's righteous forebears) who are believed to exemplify how best to practice Islam. Ms. Duffy was reacquainted with the appellant when she received a phone call from the Mosque situated across the road from her residence, informing her that an Irish woman, the appellant, was looking to convert to Islam. Ms. Duffy invited the appellant to attend group classes or teaching circles (“halaqahs”) in the Mosque to facilitate her instruction on Islam. The halaqahs were based on the Quran, the Hadiths (which Ms. Duffy explained comprise narrations in verse from the time of the prophet Muhammad describing how the prophet practiced his faith) and the Sunnah (a model for Muslims to follow based on the traditions and practices of the prophet Muhammad).
Ms. Duffy gave evidence that the appellant did not attend the halaqahs very often as her politicised views on Islam, and in relation to “Jihad” (an Arabic word which literally means “striving” or “struggling”), did not align with those of the other women in the group. Under cross-examination, Ms. Duffy explained there is a distinction between personal spiritual Jihad and Holy War Jihad, and it was the latter, what the witness characterised as “ a harsh end of Islam”, that the appellant was interested in. The witness stated that the appellant was interested in discussing topics such as Al-Qaeda, whether suicide bombings were justified, polygamy, Holy War Jihad, being a “Shaheed” (a martyr for Islam) and how honourable it would be to have a husband who was a Shaheed. In circumstances where the other participants in the halaqahs did not take well to the appellant, because of views she was expressing, Ms. Duffy then began giving the appellant instruction in Islam at her home. The appellant attended three classes during this period.
The SCC further heard evidence that after some time the appellant moved into the residence of Ms. Duffy in Williamson's Place, Dundalk as she was experiencing accommodation difficulties at her former rented address. The evidence was that the appellant's landlord wanted to get back the flat she was renting, and she didn't think she could live as a Muslim if she returned to live with her mother. In those circumstances Ms. Duffy offered that she could come and live with herself and her husband.
The witness stated that within a month of accepting Islam the appellant was very keen to get married and subsequently at the end of 2010 she developed a relationship with a friend of Ms. Duffy's husband, a Mr. Samir Slimani. There was a Mosque blessing between herself and Mr. Slimani. However, the marriage was not registered in the State's civil marriage register, as Mr. Slimani's immigration status was irregular inasmuch as he was not registered with the Irish Naturalisation and Immigration Service (INIS) and did not have the necessary documents. Ms. Duffy stated in court that the union lasted just a couple of weeks as the appellant felt that Mr. Slimani was not religious enough. Following the breakdown of the relationship the appellant returned in 2011 to live with Ms. Duffy. The witness stated that the appellant then expressed a wish to be married again quickly to a religious man. However, she (Ms. Duffy) had counselled against “ jumping straight in with somebody who is like that.” The witness said that thereafter the appellant became “ kind of withdrawn”, and it emerged that she was talking to people online about “ the stuff she was really interested in”. Ms. Duffy said that the appellant, influenced by a person she was communicating with online, became “ more argumentative about the things that us as Muslims we do”, and indeed became offensive to the point where Ms Duffy said, “ I just couldn't listen to it”.
There was evidence that during this time the appellant, influenced by her online contact, had become dismissive of the lifestyle of Ms. Duffy and her husband and critical of how they practiced their faith. After a time, the appellant obtained an apartment of her own and left the Duffys' house. Contact thereafter between herself and Ms. Duffy became only sporadic. They eventually had a complete falling out, as a result of which Ms. Duffy stopped all contact between them.
In the course of her evidence Ms. Duffy said that she viewed the appellant as naïve as she blindly followed what was being said online and did not actually study or read texts on Islam. She also viewed the appellant as vulnerable in that her interest in the faith may have been due to her being heartbroken and to her believing that if she was a Muslim, the man she was interested in would then want to be in a relationship with her.
The SCC later heard...
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