AFTER Wembley can there be any greater insult?

Not for the first time, an English court is taking it upon itself to adjudicate whether the bagpipes can honestly be described as a musical instrument.

The lone piper of Hampstead, David Brooks, insists they cannot. They are, he declares, an instrument of insurrection.

He is to appear before Hampstead magistrates on July 29 charged with the heinious crime of playing the pipes on that borough's famous heath.

Under a Victorian by-law the playing of any musical instrument is banned. In his defence, Mr Brooks will plead not guilty by, claiming the pipes are not a musical instrument.

He will rely on precedent - in particular the case of James Reid, born near Dundee, who was tried in York after the '45 rebellion. He had insisted during his trial that he never bore arms, and was merely a piper in support of Prince Charlie.

However, on October 2, 1746, the court ruled that the pipes were an instrument of war and Reid was hanged.

Mr Brooks has played his pipes on the heath for an hour every morning for 15 years.

There have been some disputes with the authorities - but he reached agreement with the old Greater London Council that he would play the pipes on the common land before 10am.

However, the heath came under the control of the Corporation of London in 1993 and, following complaints from a handful of residents, they have decided to take action under an 1890 bye-law.

While 250 locals have signed a petition supporting Mr Brooks, expert opinion is against him. The unanimous verdict is that the pipes are first and foremost musical instruments.

Captain Gavin Stoddart of the Royal Highland Fusiliers and Director of Army Bagpipe Music, said it was true that in time of war the bagpipes instilled courage into our soldiers and put the fear of God into the enemy.

Useful as that was, he said, the pipes had to be recognised as musical instruments.

Mr Dougal MacNeill, honorary secretary of the College of Piping, said: ``Although the pipes may lead our troops in war, at the end of the day they remain a musical instrument.''

Further support for that argument came only in the past few days when Euro96 officials relented and allowed the bagpipes to be carried through turnstiles into matches involving Scottish games.

However, barrister George Burnside said that in law Mr Brooks - who was born in London of a Scots mother - could have a sound case.

He said that unless the trial of James Reid has been overtaken by a subsequent court ruling, that decision was still law.

Mr Brooks had an 18-month run in London's West End as a piper in a production of Brigadoon and appears in the movie Loch Ness.

He was taught to play 25 years ago by Pipe-Major Jimmy Caution, who has followed his musical career with interest.