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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 11567
Experience:  30 years as a practising solicitor.
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I received a COoFPN just outside Kinross. I recalled the

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I received a COoFPN for speeding just outside Kinross. I recalled the circumstances and was surprised that I had been caught speeding because I saw the mobile camera van when I travelled into Kinross and therefore was aware of it on my return journey.
I went to Dundee to inspect the DVD evidence against me to understand the circumstances and see why I was caught on camera.
The evidence shows that I was over-taking and when the oncoming vehicle was speeding towards me I had to taker averting action. The camera caught me at 73mph at the very end of the over-taking manoeuvre.
I asked to see what had happened in the 15 seconds prior to that moment of me being caught on the camera: what my speed was before starting the over-taking manoeuvre; the speed of the car being over-taken; the speed of the oncoming vehicle prior to and at the end of my over-taking manoeuvre. However, the officer controlling the DVD refused to show me this evidence due to guide lines given to them.
I stated that this hardly justified my investment of time to travel to Dundee to gain my right to see the evidence; and, also, the evidence shown did not give me sufficient information on which to judge the merits of the COoFPN.
It is clear that I was not speeding prior to or in fact during the over-taking manoeuvre and my speed in excess of the speed limits was only witnessed at the very end of the manoeuvre.
This was most likely due to the oncoming car speeding towards me; therefore, the only thing for me to do was to take averting action to avoid an accident.
The road ahead was a long straight and I would not have over-took the car in front unless it was totally safe to do so. I travel on this road many many times.
Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.

You have a defence in that you had to take evasive action to avoid a collision. Write to the Procurator Fiscal and explain this. If they prosecute nonetheless you will have to plead not guilty and proceed to a trial. I doubt they will take it further if you give them a defence. The police can only go through the motions and don't have the ability to make decisions outwith that. The procurator fiscal is the one who can make a decision. Happy to discuss further. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 1 year ago.
J - many thanks and sorry for my delay in responding: I have been travelling.
I have now had a response from the police stating that they will put the matter into the hands of the PFO but also accompany their report with my statement that if there was any excess speed it was only to avoid an accident with the oncoming vehicle. I also asked to see the guidelines for providing accused drivers access to the DVD evidence. I have been informed that this is being processed under the Freedom of Information legislation.
There are two other questions which I would like you to help me with in connection with this case:
1: I was photographed by the mobile camera van at 12.14; the fils started at 12.10 even though the van had been there from before that. The police evidence unit could/would not tell me when the van arrived at the spot.
Someone told me that, in Scotland, these vans were limited to a 45 minute filming periods. Is that correct?
2(i): When commencing an over-taking manoeuvre presumably I need to be under the speed limit; only once it has started can a driver claim the defence of "avoiding a collision."
2 (ii): Are police officially barred from pursuing a speeding infringement if the driver is within the 10% plus 2 mph limit. For instance, on an open road, if the car in front (say an unmarked police car) was doing 60mph when the driver started the over-taking manoeuvre would that be OK?
2 (iii): Depending on your responses to 2(i) and 2(ii) it could be concluded that one could start a manoeuvre at under 68mph and then once the manoeuvre was underway increase speed to the level which was required to avoid an accident.
I look forward to your further thoughts.
Expert:  JGM replied 1 year ago.

The police will generally just give you the footage from just before the incident. I am not aware of any limit on the length of film. However if the vehicle is under the speed limit and then has to speed up to avoid a collision you would have a pretty strong defence. The 10% plus 2 policy is simply to deal with tolerances in different car speedometers. Generally they won't prosecute within that tolerance as you're likely to be within the limit. Your main issue here is that you had to avoid a collision and if the police are putting that in their report it may be that the PF will take a view not to prosecute.

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