Outlining the background of the case, the Appeal Court noted that on October 5, 2011 the Assets Recovery Agency had brought civil proceedings against Nembhard in the Supreme Court, seeking a civil recovery order and restraint order pursuant to the Proceeds of Crime Act (POCA) against certain properties owned by him, namely several items of real estate and motor vehicles.
In his motion for conditional leave to appeal to Her Majesty in Council, Nembhard had questioned whether the Proceeds of Crime Act, 2007 has retrospective effect to allow for unlawful conduct that occurred prior to May 2007 to be used as the basis for making a civil recovery order under section 57 of the POCA.
He also asked whether section 55(3) of the POCA overrides the provision of section 2 of the Act in so far as it relates to the appointed date for the purposes of a civil recovery order in respect of an unlawful conduct that occurred prior to May 2007.
Additionally, he stated that it permitted the Assets Recovery Agency to apply for a civil recovery order against someone who had committed unlawful conduct, but that conduct must be a crime within the definition of section 2 of POCA.
Additionally, Whyte submitted that in light of the court's pronouncement in respect of the interpretation of unlawful conduct in the context of civil recovery, the questions raised by Nembhard in the motion do not raise any difficult or serious issues of law which need to be clarified.
