Fallout for rail prosecutions from Post Office scandal

[Taunton]

It will be notable to see what might be the longer term impact for rail from the review of individual businesses being able to make prosecutions themselves, rather than through the public prosecutor.

The post office situation is comparable, it is a large national business that made the prosecution, when they had potentially all the evidence, and also stood to make commercial advantage from threatening such prosecution and forcibly asking people to "pay up" to avoid it. The values may be different but the concepts are the same. I think the basic belief was that such large national organisations would always act honourably, something that the courts seem to have gone along with as well. It is now apparent that is not necessarily so.

 

[185]

There should be a review of the situation, I agree however there's perhaps a substantial difference in the Post Office cases, in that CPS briefs and police were involved in those Crown Court cases. Railway cases are generally heard at a magistrates court, and generally will be for a railway-specific (eg RORA, possibly bylaw) offence.

My understanding - in case - R v (postmaster), Cardiff Crown Court heard the case. The statement released said "A routine audit was carried out. Post Office Inspectors checked trade statements..." so this sounds like :-

Fujitsu Horizon flagged a loss that didn't exist.
Royal Mail / Post office Investigations put their case together.
They went to police with the result.
Police reviewed their claims and approached the CPS.
CPS proceeded to prosecute in the courts.

All five parties in the chain above deserve either investigation and / or prosecution for failing to assess the reliability of Fujitsu's Horizon junk.

 

[Alex C.]

There should be a review of the situation, I agree however there's perhaps a substantial difference in the Post Office cases, in that CPS briefs and police were involved in those Crown Court cases. Railway cases are generally heard at a magistrates court, and generally will be for a railway-specific (eg RORA, possibly bylaw) offence.

My understanding - in case - R v (postmaster), Cardiff Crown Court heard the case. The statement released said "A routine audit was carried out. Post Office Inspectors checked trade statements..." so this sounds like :-

Fujitsu Horizon flagged a loss that didn't exist.
Royal Mail / Post office Investigations put their case together.
They went to police with the result.
Police reviewed their claims and approached the CPS.
CPS proceeded to prosecute in the courts.

All five parties in the chain above deserve either investigation and / or prosecution for failing to assess the reliability of Fujitsu's Horizon junk.

The vast majority of cases in England saw Post Office prosecutors, not the CPS. Scotland and Northern Ireland were different. The majority of overall cases were prosecuted by the Post Office directly.

I would not be surprised to see a review of all private prosecutions as a result of the attention this is getting, I'll be lobbying my (Labour) MP to do something about the terrible state of rail private prosecutions when they enter Government.

 

[boiledbeans2]

Recently, I read an article on the Evening Standard newspaper about the Single Justice Procedure.

Here is the online version (Warning, beware of ads!):

Where’s the justice? Letters from vulnerable ignored under 'broken' court system

Standard investigation reveals appeals from the vulnerable and elderly not routinely looked at by prosecutors under controversial single justice procedure

www.standard.co.uk

Not isolated incidents, but signs that the single justice procedure is routinely delivering injustice. Many of the prosecutions should have been dropped as soon as it was clear that they were not in the public interest. But in a court system designed primarily for speed, prosecutors do not even see the letters revealing the truth. The offences involved are minor but the impact can be enormous, especially for those too old to cope alone. MPs created the system eight years ago, then failed to monitor whether it worked. Prosecuting bodies — police forces, Transport for London, councils, the DVLA and TV Licensing — know it is delivering injustices. And the Ministry of Justice appears to have little appetite for solving the problems.

 

[KirkstallOne]

It is a bit different in that the only additional legal powers the rail companies have to my knowledge is being able to use the Single Justice Procedure to initiate cases, and then only for byelaw offences (although we have seen Northern routinely ignore that restriction). The post office has a raft of legal powers to essentially act as the police and CPS rolled into one, a situation that is ripe for abuse.

The main issue as I see it is that certain companies are not fulfilling their responsibilities to the court and these are responsibilities that any private prosecutor has.

 

[fireftrm]

There should be a review of the situation, I agree however there's perhaps a substantial difference in the Post Office cases, in that CPS briefs and police were involved in those Crown Court cases. Railway cases are generally heard at a magistrates court, and generally will be for a railway-specific (eg RORA, possibly bylaw) offence.

My understanding - in case - R v (postmaster), Cardiff Crown Court heard the case. The statement released said "A routine audit was carried out. Post Office Inspectors checked trade statements..." so this sounds like :-

Fujitsu Horizon flagged a loss that didn't exist.
Royal Mail / Post office Investigations put their case together.
They went to police with the result.
Police reviewed their claims and approached the CPS.
CPS proceeded to prosecute in the courts.

All five parties in the chain above deserve either investigation and / or prosecution for failing to assess the reliability of Fujitsu's Horizon junk.

The Police and CPS were not involved at all. The Post Office used their powers to carry out private prosecutions

 

[STINT47]

The scandal of sub postmistress being falsley accused and convicted of fraud has led to people questioning the wisdom of allowing the Post Office to bring their own prosecutions and appoint their own lawyers to do this. In future it has been suggested that any further prosecution shouldbe done by the CPS to ensure objectivity and fairness.

This has made me think about TOCs doing private prosecution for fare evasion and fraud. Should they also be banned from doing this or at least have it checked over by an independent observer?

On this forum we have seen examples of people being given incorrect fare advice, issued with penalty fares and or intention to prosecute when the TOC and or the private firms they appoint (TIL being a prime example) on their behalf have got it wrong. On the forum we try to advise and help but I wonder how many people pay up to make it go away or have even been convicted despite being innocent.

It strikes me that a guiding independent mind is required to a least oversea TOC activity or we could one day see a scandal emerge concerning the railways

 

[Tetchytyke]

This has made me think about TOCs doing private prosecution for fare evasion and fraud. Should they also be banned from doing this or at least have it checked over by an independent observer?

Yes.

We see certain TOCs- Northern and Merseyrail in particular- deliberately and repeatedly misrepresent s.5(1) RoRA and attempt to use this section to prosecute people who have provided their name and address. Not to mention the way the TOCs routinely don't bother with legal niceties like appropriate disclosure.

The fundamental problem is the commercial imperative of the TOC is not conducive to transparent and open justice.

 

[mrmartin]

I was just about to start a similar thread, so putting it on here instead:

It seems to me there are real parallels between the Post Office scandal and some rail convictions. To be clear, I'm not suggesting people that have been doing complex preplanned fraud or repeat, long term fare evasion are in this category.

I'm more thinking of convictions because "one off" lost/missing/expired railcards or incorrect tickets for the service.

1) Private prosecutions used, bypassing the CPS (who have a fair amount of checks and balances), often outsourced AFIAK
2) Single justice procedure used in a lot of cases which has already been in the press this week for not taking into account personal circumstances enough - I think this alone is a major worry on the 'just' nature of a lot of prosecutions
3) Unbelievably complex 'contract' (fare system and related legislation) which is is implicitly accepted by someone that does not have the resources or ability to understand them, but a lot of strict liability offenses which are similar to the PO scandal.
4) Somewhat arbitrary enforcement of the rules, with some people getting out of court settlements and others who are less resourceful (and potentially more vulnerable) going to court because they don't know that is an option
5) Oversized impact on the person being prosecuted - often a lot of worry and stress and a potential criminal record (which can have very serious implications) for very small amounts of money. It also doesn't tally with other 'theft' like shoplifting where as far as I know first time offenders are not dragged through the courts for stealing a small item (despite this having a bigger impact imo on the retailer than the train operator, as in nearly all cases the train operator hasn't lost anything apart from the potential ticket value, whereas the retailer has to replace the stolen item).

Regardless of your exact opinions on this, I think private prosecutions are going to be reformed in the near future, which could mean the TOCs can no longer prosecute directly. And I really think the CPS would not pick up nearly all of the prosecutions going forward if that happened (apart from more "serious" ones).

 

[fandroid]

There really needs to be a reform of the whole revenue protection system, and it needs to be consistently applied throughout England and Wales, and hopefully Scotland too. It needs to be proportionate, and very easily understood by anyone buying a ticket. The utterly bewildering diversity of the ticket system and ticket validity is massively to blame for both the large numbers inadvertently breaking bylaws and also the large amount of actual criminal fare avoidance. Any reform of revenue protection and of prosecution policy must be founded on reform of ticketing.

 

[RooseWithAZed]

This might be a point for another thread but, should boarding without a ticket still be a criminal offence or should it become a civil matter between the operator and the passenger? Operating companies acting as private prosecutors to enforce the criminal law of fare evasion has always seemed odd to me.

 

[AlterEgo]

I was just about to start a similar thread, so putting it on here instead:

It seems to me there are real parallels between the Post Office scandal and some rail convictions. To be clear, I'm not suggesting people that have been doing complex preplanned fraud or repeat, long term fare evasion are in this category.

I'm more thinking of convictions because "one off" lost/missing/expired railcards or incorrect tickets for the service.

I’m really struggling to see the parallels if I’m honest.

1) Private prosecutions used, bypassing the CPS (who have a fair amount of checks and balances), often outsourced AFIAK

The Post Office doesn’t outsource its prosecutions. It maintains in house criminal justice capacity - the Post Office Investigation Branch. https://www.postalmuseum.org/blog/the-post-office-investigation-branch/

2) Single justice procedure used in a lot of cases which has already been in the press this week for not taking into account personal circumstances enough - I think this alone is a major worry on the 'just' nature of a lot of prosecutions

I don’t think any of the Post Office scandal cases were dealt with under SJPN. Am I right about that?

3) Unbelievably complex 'contract' (fare system and related legislation) which is is implicitly accepted by someone that does not have the resources or ability to understand them, but a lot of strict liability offenses which are similar to the PO scandal.

How are they similar? The subpostmasters were convicted of fraud and/or theft, not strict liability offences.

4) Somewhat arbitrary enforcement of the rules, with some people getting out of court settlements and others who are less resourceful (and potentially more vulnerable) going to court because they don't know that is an option

Did the Post Office “arbitrarily” enforce the law? How many subpostmasters settled before they were prosecuted, for example?

 

[Fawkes Cat]

I was just about to start a similar thread, so putting it on here instead:

It seems to me there are real parallels between the Post Office scandal and some rail convictions. To be clear, I'm not suggesting people that have been doing complex preplanned fraud or repeat, long term fare evasion are in this category.

I'm more thinking of convictions because "one off" lost/missing/expired railcards or incorrect tickets for the service.

1) Private prosecutions used, bypassing the CPS (who have a fair amount of checks and balances), often outsourced AFIAK
2) Single justice procedure used in a lot of cases which has already been in the press this week for not taking into account personal circumstances enough - I think this alone is a major worry on the 'just' nature of a lot of prosecutions
3) Unbelievably complex 'contract' (fare system and related legislation) which is is implicitly accepted by someone that does not have the resources or ability to understand them, but a lot of strict liability offenses which are similar to the PO scandal.
4) Somewhat arbitrary enforcement of the rules, with some people getting out of court settlements and others who are less resourceful (and potentially more vulnerable) going to court because they don't know that is an option
5) Oversized impact on the person being prosecuted - often a lot of worry and stress and a potential criminal record (which can have very serious implications) for very small amounts of money. It also doesn't tally with other 'theft' like shoplifting where as far as I know first time offenders are not dragged through the courts for stealing a small item (despite this having a bigger impact imo on the retailer than the train operator, as in nearly all cases the train operator hasn't lost anything apart from the potential ticket value, whereas the retailer has to replace the stolen item).

Regardless of your exact opinions on this, I think private prosecutions are going to be reformed in the near future, which could mean the TOCs can no longer prosecute directly. And I really think the CPS would not pick up nearly all of the prosecutions going forward if that happened (apart from more "serious" ones).

I can see some parallels, but I'd suggest a couple of divergences which could be quite significant:

- we find very few people here who deny the offence. They might argue that they have special circumstances which mean that it wasn't an offence, but to be blunt generally they're wrong.
- no sign (afaik) of railway prosecutors manufacturing evidence or claiming infallibility on their part

 

[Killingworth]

I believe the RSPCA may also have got into bother with some of their in house prosecutions.

 

[Ken H]

This might be a point for another thread but, should boarding without a ticket still be a criminal offence or should it become a civil matter between the operator and the passenger? Operating companies acting as private prosecutors to enforce the criminal law of fare evasion has always seemed odd to me.

That would be a massive change. To prove a criminal offence beyond reasonable doubt is far harder than the civil requirement which is more on the balance of probabilities.

 

[pedr]

My view is that the criminal law is an inappropriate tool for most fare evasion. Although many of the cases that are pursued do involve deliberately travelling while avoiding paying the whole fare, too many are far more technical. I'm not sure that removing the power of railway companies to bring private prosecutions would solve all the problems, though - the railway companies do threaten to refer cases to the police, and that threat could have a similar effect to the current threats to bring prosecutions.

There are some key differences with the Post Office/Horizon scandal, though - as noted, most people who are contacted by the railway have committed criminal offences, in circumstances which the creators of the bylaws intended to criminalise. I think that's different even from the prosecutions/guilty pleas to false accounting charges - some of which the sub-postmasters may have, technically, committed in their attempts to reconcile the discrepancies or simply in submitting the Horizon-generated but false accounts. Guilty pleas and convictions for theft are entirely inaccurate, and the only parallels in the railway cases would be where people believe they would have a defence but choose to pay up to avoid the risk of conviction. There was a lot of that (for far higher sums of money) in the Post Office situation, in addition to the cases which were prosecuted.

 

[Mcr Warrior]

There are some key differences with the Post Office/Horizon scandal, though...

Do we already have a separate thread anywhere for this particular discussion topic? (Be surprised if we didn't!)

 

[bakerstreet]

If the railways continue with the prosecution powers they have via SJP, then one good step forward would be to ensure that every member of staff is properly trained on what is a valid ticket and appropriate reasons for there being no ticket or the wrong ticket.

It’s also important to note that whilst they don’t have the same power of the post office, to the average punter who sees a threat of prosecution letter in their mind it could amount to the same thing.

We see here staff - no doubt a minority- not knowing the rules or making up rules or misunderstanding the contract terms of tickets.

There is little sanction against these rogue agents. Particularly when they can make more money for the very company who push for prosecution.
There really should be some serious sanctions for such rogue staff.

It’s easy to see why some passengers who have done nothing wrong feel they must bow to the ‘better knowledge’ of railway staff who claim to understand the sometimes impenetrable complexities of uk rail fares and terms, staff who in some cases lack the knowledge or will to do so.

No wonder many just pay up when faced with a threat of prosecution.

Because in court you can never be sure of the result. And the passenger usually has more to lose than the TOC

 

[etr221]

If the railways continue with the prosecution powers they have via SJP, then one good step forward would be to ensure that every member of staff is properly trained on what is a valid ticket and appropriate reasons for there being no ticket or the wrong ticket.

It’s also important to note that whilst they don’t have the same power of the post office, to the average punter who sees a threat of prosecution letter in their mind it could amount to the same thing.

We see here staff - no doubt a minority- not knowing the rules or making up rules or misunderstanding the contract terms of tickets.

I think that in fact the number of staff members who know 100% the rules applicable to any ticket/fare query they might encounter is actually quite low, noting that this has to take into account staff (and enquiry systems) saying 'it's valid when it isn't' as well as 'it's not valid when it is', and all the possible exceptions. (See, inter alia, recent thread on Freedom Pass validity when travelling to Reading - something you think should be simple, but which the thread indicated a number of disagreements...)

There is little sanction against these rogue agents. Particularly when they can make more money for the very company who push for prosecution.
There really should be some serious sanctions for such rogue staff.

I would suggest that any staff member who rejects a ticket (and charges a penalty), or an appeal against such, should be required to accept responsibility for so doing, potentially facing a charge of Gross Misconduct (and so dismissal) if they get it wrong. And that in this case, the passenger should be entitled to compensation

The real problem is that the rules are perhaps too complex, and the impact of operational unreliability too great, for - at the limit - anyone to understand (or explain) - and for operational issues, deal with...

 

[Titfield]

I would suggest that any staff member who rejects a ticket (and charges a penalty), or an appeal against such, should be required to accept responsibility for so doing, potentially facing a charge of Gross Misconduct (and so dismissal) if they get it wrong. And that in this case, the passenger should be entitled to compensation

This sanction is disproportionately severe. If the staff member was dismissed and went to a Tribunal, the Tribunal would almost certainly find in their favour.

A multi faceted approach to this problem is required:

1. A long overdue simplification of the fares, fare types and fare rules.*
2. An overhaul as to how the railway deals with ticket irregularities: but balancing the "innocent mistake" with the need to deter "persistent offenders".
3. Identifying who, how and why staff give "wrong information" and tackling this problem.

*One has to wonder just why there are so many different railcards with different benefits and restrictions.

One would hope that simplifying the system would reduce mistakes, reduce wrong advice, make it less easy for persistent offenders to play the innocent mistake card.

 

[Gerald Fiennes]

In principle, anyone can launch a private prosecution. There are no particular powers needed, but those who begin them do need to have deep pockets to absorb the costs including any costs award that might follow a not guilty verdict. Train operators' prosecution departments are in part funded by the costs awards that are routinely made when cases are successfully prosecuted, including through the SJP (which is a bit of a red herring in this debate IMHO).

The CPS has the absolute right to take over private prosecutions, but seldom invokes this. It did not apparently do so any stage during the Horizon prosecutions.

Because train operators and previous railway companies have been prosecuting for years, there tends to be a view that special powers were needed to do this. But there aren't, it's just been custom and practice since somewhere in the 19th Century.

On another point, if prosecution were no longer an option (for whatever reason, including the CPS being too overstretched to take on rail ticket prosecutions) what would be the deterrent for travel with invalid tickets or none? An even higher Penalty Fare: how would non-payment of these be enforced?

 

[Haywain]

1. A long overdue simplification of the fares, fare types and fare rules.*
2. An overhaul as to how the railway deals with ticket irregularities: but balancing the "innocent mistake" with the need to deter "persistent offenders".
3. Identifying who, how and why staff give "wrong information" and tackling this problem.

Much of number 3 is explained by number 1.

The CPS has the absolute right to take over private prosecutions, but seldom invokes this. It did not apparently do so any stage during the Horizon prosecutions.

The CPS is, like many public bodies, heavily overworked and severely underfunded.

 

[mrmartin]

On another point, if prosecution were no longer an option (for whatever reason, including the CPS being too overstretched to take on rail ticket prosecutions) what would be the deterrent for travel with invalid tickets or none? An even higher Penalty Fare: how would non-payment of these be enforced?

Like literally any other civil debt (like parking fines?). Debt collection + CCJs? Why is that good enough for 99.9% of the UK economy but not the railways? Also there is still the potential for the CPS to take on much bigger fraud cases.

I don't even think court action is a deterrent as most lay people don't realise you can/will go to court for it, as it is so out of step with the rest of "society".

Noone believes me when I tell people that I know that have inadvertently fare evaded (bought ticket to wrong stop for example, or using super off peak instead of off peak at ungated stations) believes the severity of enforcement that they could have had.

 

[Bletchleyite]

On another point, if prosecution were no longer an option (for whatever reason, including the CPS being too overstretched to take on rail ticket prosecutions) what would be the deterrent for travel with invalid tickets or none? An even higher Penalty Fare: how would non-payment of these be enforced?

A regular Penalty Fare. It was only just increased!

A regular fraud charge prosecuted via the BTP and CPS would be used for serious cases of falsification and long-term evasion.

Non-payment would be enforced via the civil courts as with any other debt, i.e. you sue them and if they don't pay they get a CCJ and the bailiffs show up. There's no reason why the railway should be any different to any other business you might owe money to.

 

[Tetchytyke]

On another point, if prosecution were no longer an option (for whatever reason, including the CPS being too overstretched to take on rail ticket prosecutions) what would be the deterrent for travel with invalid tickets or none? An even higher Penalty Fare: how would non-payment of these be enforced?

As I've repeatedly said, low-level minor fare evasion should be dealt with by way of Penalty Fare- the amount of which has only just been increased! As for recovery, there's a whole civil recovery procedure which everyone else in business has to use.

Decent record-keeping would identify those who repeatedly receive Penalty Fares and, in those cases, due consideration can be given to referring to the police and CPS.

There is no reason why the BTP and CPS would be unable or unwilling to take on high value or repeated fare evasion, as they already do so. The BTP were the investigating party and the CPS the prosecuting party in the various Delay Repay fraud trials which have gone through the Crown Court in recent years.

I quoted the CPS guidance in relation to the prosecution of fare evasion before, but here it is again:

Fare Evasion is the principal form of dishonesty to affect public transport. The fact that it is widespread is a relevant public interest factor.

Prosecutors should consider using the provisions of the Fraud Act 2006 (See CPS Fraud Act 2006 Legal Guidance), where there is evidence of premeditation, or persistence, or repeat offending, or large loss by the transport authority. Where tickets have been altered or defaced, prosecutors should consider a charge under the Forgery and Counterfeiting Act 1981 (See CPS Forgery and Counterfeiting Legal Guidance).

Where fare evasion is opportunistic and there is no significant element of planning, then it will not normally be necessary in the public interest to charge fraud or forgery. In these circumstances, subject to the usual public interest considerations, a charge under section 5 of the Regulation of Railways Act or section 103 of the Railway Clauses Consolidation Act may be appropriate.

As for deterrence, the best way of deterring fare evasion is to have regular, prominent, and robust revenue protection activity. The biggest deterrence is knowing you'll get caught. Higher penalties change the risk/reward ratio for fare evasion, of course they do, but regular and prominent revenue protection is what really tips the scales. People who always get their tickets checked properly aren't so tempted to 'forget' or 'press the wrong button'.

Instead the railways use ticket gates as the primary revenue protection mechanism and then wonder why doughnutting is so prevalent.

 

[SteveM70]

The CPS has the absolute right to take over private prosecutions, but seldom invokes this

How does that actually work? Do the CPS have some sort of general oversight and can choose at their own behest to take over or discontinue a prosecution, or do they have to be asked to, presumably by one of the parties involved?

 

[KirkstallOne]

One other point worth noting is that Transport for London do have additional powers beyond the other rail operators as they are allowed to issue requisitions (as we see in the current case regarding 171 additional offences for consideration). Requisitions do compel someone to attend court, and I don't believe the offences they can charge are limited in the way other railway operators can only charge byelaw offences via a SJPN. It does seem excessive as this puts them on a par with the Serious Fraud Office, Customs and Excise etc. Seems there is more potential for these powers to be abused.

How does that actually work? Do the CPS have some sort of general oversight and can choose at their own behest to take over or discontinue a prosecution, or do they have to be asked to, presumably by one of the parties involved?

See here for the details of this:

https://www.cps.gov.uk/legal-guidance/private-prosecutions

There is no duty to inform them of a private prosecution but they can find out in the following ways and make a decision to take over (either to pursue the case in the public interest, or to stop it). I think it is very unlikely they are going to be interested in low-level railway offences though.

• where the private prosecutor, or a representative of the private prosecutor, asks the CPS to take over the prosecution;
• where the defendant, or a representative of the defendant, asks the CPS to take over the prosecution;
• where extradition is required and the Home Office (directly or indirectly) refers the private prosecutor, or a representative of the private prosecutor, to the CPS;
• where a justices' clerk refers a private prosecution to the CPS under section 7(4) of the Prosecution of Offences Act 1985, because the prosecution has been withdrawn or unduly delayed and there does not appear to be any good reason for the withdrawal or the delay;
• where a judge sends a report to the CPS;
• where the CPS learns of the private prosecution in another way, for example, from a press report.

 

[fandroid]

Interesting that the defendant can ask for the CPS to get involved. In cases where, for example, Merseyrail or Northern, use the SJP inappropriately, would it be worth us advising that CPS be informed? It might not get an immediate reaction, but if several cases show up the CPS might "have a word".

 

[Fawkes Cat]

Interesting that the defendant can ask for the CPS to get involved. In cases where, for example, Merseyrail or Northern, use the SJP inappropriately, would it be worth us advising that CPS be informed? It might not get an immediate reaction, but if several cases show up the CPS might "have a word".

It doesn't seem to be a widely used facility: this from 2021 referring to the 2019 figures - https://www.lawgazette.co.uk/practi...f-of-its-private-prosecutions/5107989.article. Relevantly

A freedom of information request [...] found that in 2019 the CPS had 49 private prosecution referrals, of which it took over 32 and discontinued 29. In its response, the CPS added that it 'does not maintain an authoritative central record of the number of private prosecutions taken over' and the figures 'may not capture every case referred' to it.

Although it's also notable that 29 of the 32 cases taken over were discontinued.

 

[Titfield]

It doesn't seem to be a widely used facility: this from 2021 referring to the 2019 figures - https://www.lawgazette.co.uk/practi...f-of-its-private-prosecutions/5107989.article. Relevantly



Although it's also notable that 29 of the 32 cases taken over were discontinued.

I suspect, but do not know, that the CPS takes some over specifically so that they can discontinue them, considering that the prosecution is oppressive or malicious.