Song labelling gay couple ‘fairy’ and ‘fag’ is not homophobic, court rules

A song labelling gay men as “fairies” and “fags” is not homophobic, a court has ruled.

Nick Fiveash, 61, and his male partner, from east London, alleged their neighbours performed the song in a bid to offend them following a row on 12 August last year.

The couple provided the court with audio evidence of the neighbours singing the song, which included the words: “Well you are a fairy, you’re friends call you Mary/Well you are a fag you dress up in drag.”

The recording, heard by The Independent, also features the lyrics: "You knit and you sew, you tie things with bows/Cos that’s what you do when you are a fag fag fag".

People can be heard laughing in the background.

But on 26 June, judges at Stratford Magistrate’s Court unanimously ruled the song was not offensive. They said the lyrics should be taken as “satire”.

Mr Fiveash said the situation erupted when he complained to their new neighbours Olivia Still and her partner Nick Stott about noise levels.

The pair who had recently moved in were alleged to have said “they’re gonna love this”, before singing along to the Mark Silverman song.

After a disagreement over the song's content, Mr Fiveash made the recording from his window.

After they spotted him listening, his neighbours could be heard saying: “They’re at the window”.

Three magistrates found Ms Still and Mr Stott "not guilty" of the charge of "using threatening, abusive, and insulting words to cause alarm and distress” as they concluded the song was "satirical" and not "homophobic".

Stunned by the ruling, Mr Fiveash and wrote to the Crown Prosecution Service (CPS) asking them to appeal the verdict on the grounds it is in the public interest.

He said it highlighted unconscious homophobia in the legal system.

But the CPS replied that it would not appeal because it could not be proved there was intent on the neighbours' part.

“Where there is any doubt whatsoever, they must find in the defendant not guilty," they wrote. "This does not mean that they accepted the defendants’ accounts or that you were not believed."

Part of the reason for the not guilty verdict was that Mr Fiveash began recording the song on his phone “before the offensive lyrics began”, it said.

It added: “Unfortunately, I cannot see that there are any grounds for an appeal. The decision appears to be based on the magistrates’ assessment of the factual evidence they heard and it is not possible to appeal in those circumstances."

Mr Fiveash told The Independent the refusal by the legal system to recognise what happened as homophobic was a demonstration of the difficulty for LGBT people to report hate crimes and get justice for LGBT hate crimes.

“It just feels like they keep changing the goal posts and just won’t accept responsibility. We’re going round and round in circles. This has been a horrific event and even though we were fortunate not to be physically hurt, the mental stress has been unbearable," he said.

“But for me, I’ve moved past the fact that my neighbours are homophobic and I’ve got to live next door to them. My issue is how difficult I’ve discovered it is for LGBT people to report these things and get listened to. It’s all very well getting the numbers up for the number of people reporting hate crime, but if someone said to me tomorrow ‘we’ve been subject to homophobic abuse what do we do?’ I’d say don’t bother.

“It's not been a pleasant year. We had to be on the stand in court for two hours and were character assassinated. We felt like the criminals. I almost just felt like saying I was guilty. I just find it all ridiculous, and I wonder whether if these words were replaced with racial or religious slurs it would be the same.”

The couple’s local MP, Labour’s Rushanara Ali, has since intervened in the case. She said she felt the incident was homophobia and called for the case to be reconsidered in a letter to the CPS.

The Bethnal Green and Bow politician said: “It is disappointing that Mr Fiveash’s case has not reached a satisfactory conclusion. It is vital these types of incidents are taken seriously and homophobic and discriminatory behaviour do not go unchallenged and unpunished.”

In a letter to the director of Public Prosecutions, Ms Ali wrote: “I fully agree with Mr Fiveash that it would be right for the CPS to appeal this verdict and the case should be reviewed by a higher court. I believe it would be in the public interest to ensure that these types of incident are taken seriously and no tolerance is given to outright homophobic and discriminatory behaviour.”

But the CPS have responded to her with a similar response to the one they sent to Mr fiveash, saying they will not appeal the case.

A CPS spokesperson told The Independent: “Following an investigation by the Metropolitan Police, the CPS considered the case in accordance with the Code for Crown Prosecutors. It was determined there was sufficient evidence to provide a realistic prospect of conviction and that it was in the public interest to prosecute.

“The two defendants appeared at Stratford Magistrates’ Court charged with using threatening or abusive words or behaviour likely to cause harassment, alarm or distress, contrary to section 5 of the Public Order Act 1986. After a trial both were found not guilty by the Court and there are no grounds upon which to appeal the decision.

“The case was recorded as a homophobic hate crime and we are satisfied that the case was handled in accordance with our policy on prosecuting such crimes.”

It comes after new figures revealed the number of attacks on lesbian, gay and bisexual people in the UK has soared by nearly 80 per cent in the past four years.

The data, collected by charity Stonewall, also showed that four in five LGBT people who experienced a hate crime or incident in the last 12 months had not reported it to the police.

LGBT people told the researchers it was because they felt that they weren’t “taken seriously” by authorities they approached about hate crime they had experienced.