A gay couple are questioning whether magistrates in Stratford are homophobic after they ruled that a song labelling gay men as “fairies” and “fags” was not offensive.
Nick Fiveash, 61, and his partner, from east London, took their neighbours to court, alleging they had performed a song littered with homophobic slurs in a bid to offend them following a row on 12 August last year.
In a recording, the neighbours can be heard singing the words to a song: “Well you are a fairy, your friends call you Mary/Well you are a fag you dress up in drag.”
The song by US comedian and songwriter Mark Silverman 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”.
Mr Silverman has reacted saying“I despise homophobia and I regret that my song has triggered any divisiveness.”.
In spite of the language in the song, on 26 June, judges at Stratford Magistrate’s Court unanimously ruled it was not offensive and suggested it should be taken as ‘satire’.
Mr Fiveash told Out News Global that, during the hearing, a barrister for the accused stated: “Neighbours didn’t know you were gay because you weren’t doing gay things like tending your flowers.”
Mr Fiveash said the argument started when he and his partner complained to Olivia Still and her partner Nick Stott about noise.
The pair were alleged to have joked “they’re gonna love this”, before singing their own rendition of the Mark Silverman song.
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” concluding the song was “satirical” and not “homophobic”.
Mr Fiveash wrote to the Crown Prosecution Service asking for an appeal but his request was denied. In a letter, the CPS said it would not appeal because it could not be proved there was intent on the neighbours’ part.
Mr Fiveash contacted the Attorney General, but was again rebuffed. Jeremy Wright QC MP, said: “ I have been informed by the CPS that, having checked the prosecutor’s notes, in giving reason for their verdict, the magistrates also referred to them not being satisfied that it was likely that the conduct would cause harassment, alarm or distress.”
Now Mr Fiveash has slammed the Stratford magistrates.
“I feel this absolutely reinforces my belief that the magistrates have either no idea or reasoning what is offensive to a member of the LGBT community (I think “fag, fairy, queer” is!) or suffer from conscious or unconscious homophobia.
“Either way their personal feelings have influenced the outcome of this case and the law has not been followed. This has to be addressed by the CPS in training magistrates of a lay bench in all areas of diversity.”
Mr Fiveash is calling for the independent Lammy Review into the treatment of, and outcomes for, Black, Asian & Ethnic individuals in the Criminal Justice System to include the LGBT community.
“I have now been made aware of many cases, like ours, that have been dismissed, mistreated or given wrong verdicts in magistrates courts due to ill-informed and biased views.”
The CPS explained the court’s decision, saying: “Where there is any doubt whatsoever, they must find the defendant not guilty. This does not mean that they accepted the defendants’ accounts or that you were not believed.”
It seems one reason for the not guilty verdict was that Mr Fiveash began recording the song on his phone “before the offensive lyrics began”.
Mr Fiveash however, explained under oath: “I opened the door, heard the word ‘queer’, grabbed my phone and then pressed record.”
He told Out News Global: “The offensive words are later in the song but it was this hearing ‘queer’ before that triggered me recording the song”
The CPS 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.”
Stratford Magistrates Court has been contacted for comment.
Read US entertainer Mark Silverman’s response to the story