An angry man insults you by calling you Scottish. Is that a race crime? Leading lawyers fear freedom of speech is being eroded by the interpretation of new hate laws, writes Calum Macdonald

Is it merely the choice of adjective, or the manner in which they are uttered?

Since the creation of raciallyaggravated offences seven years ago there has been a proliferation of prosecutions of people who use national, not ethnic, slurs against others.

However, many legal experts believe racially aggravated offences were introduced to protect ethnic minorities - not the sensitivities of the Scots, Welsh, Irish or English.

Nevertheless, a whole new group of people have been branded racists in the eyes of the law, from the councillor in Lanarkshire who called a Welsh constituent "boyo" to the Frenchman in Argyll who said a business rival was a "fat, f***ing English c***".

Legal experts and human rights activists are concerned the way the law on raciallyaggravated offences is being applied is eroding freedom of speech as more and more people are facing court for using adjectives such as English, Irish, Scottish and Welsh when they insult others.

Racially-aggravated offences were introduced into the criminal justice system by the Crime and Disorder Act 1998, a year before devolution.

According to the Home Office, they were created "to make it clear that racial crime will not be tolerated".

For the purposes of the Act, a racial group is "a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."

While it was expected that the creation of the offence would criminalise people who attacked ethnic minorities, it was not foreseen that so many cases of people uttering slurs on nationality would end up in court.

Last week Kevin Bonar, a Hearts fan, was convicted of a racially-aggravated breach of the peace for calling Craig Bellamy, the former Celtic player, a "wee Welsh bastard" at a football match.

This is not, believes Paul McBride, a leading criminal QC, the kind of person the act was supposed to criminalise.

"It was to deal with black and Asian people being abused in the street, " he said. "I don't think they foresaw it being applied to national slurs in the way it has been.

"The act was a good idea.

There is no doubt ethnic minorities were being abused and the penalties were not fitting the crime.

"There is no problem with the legislation - the problem is that, in the current climate, if you add certain banned adjectives in front of an insult you are branded a racist.

"Now you have people involved in relatively trifling circumstances finding themselves branded a racist and as a result barred from every public sector job in the country.

"The guy who called Bellamy a Welsh bastard was going to call him a bastard anyway. He just happened to be Welsh.

"He could have called him a Celtic bastard and it wouldn't be racially aggravated."

He warned that if the law continues to be applied as it is at present, the interpretation of "racial" could be unnecessarily widened.

He added: "Although it has never been tested in court, I suppose calling someone a dirty European Union bastard would be a racial slur as it refers to their nationality and citizenship.

"To call someone a 'sheepshagging Aberdonian bastard' may be interpreted as a racial slur, that's where we are going with this."

The policeman who arrested Bonar told Glasgow Sheriff Court that he would not have done so had he merely called Craig Bellamy a bastard, and that it was the inclusion of "Welsh" that provoked the arrest.

A different officer, using his discretion, could conceivably have arrested Bonar for a normal breach of the peace if he had not used the word "Welsh".

Although Colin Boyd QC, the Lord Advocate, has issued guidelines on what constitutes a racially-aggravated breach of the peace to Scottish police forces, they are not available to the public.

However, a spokeswoman said that the perception of a victim or a witness to an incident is taken into consideration.

This, according to John Scott, chairman of the Scottish Human Rights Centre, is an unwelcome development in the criminal law.

He said: "Breach of the peace is generally approached on an objective basis, so under normal circumstances there is an objectivity test.

"When you start considering the reaction of witnesses, that becomes extremely subjective.

One person or police officer may react differently to another.

"How thick a person's skin is starts coming into play. The law should never be so subject to the whim or sensitivities of individuals, it has to be more robust.

"The objective test of a breach of the peace is that the reasonable man would be alarmed by the behaviour, but now we are sidelining the reasonable man and allowing the thin-skinned individual to be the test, which is new.

"That results in obvious problems with inconsistency and there is potential for the law to stray too far into the area of an attack on freedom of speech."

He added: "We are possibly in danger of creating artificial racial groups that don't actually exist and of having an aggravation for almost every group and individual. The majority of offences should be able to be dealt with by existing criminal law."

However, Christopher Gane, professor of Scots law at the University of Aberdeen, does not believe unnecessary subjectivity is creeping into the criminal law.

He said that he too believed parliament's intention when creating racially aggravated offences was to protect ethnic minorities, but has no qualms over how the law is now being applied.

"People can be attacked by others because it is assumed they are something, whether or not that assumption turns out to be true, " he added.

"The discriminatory motivation that lies behind these attacks is sometimes subjective itself, and if you look at it from the perspective of the victim, does it matter if you are attacked because you are X or because someone thinks you are X?

"That is why you might want to consider perceptions."

Gordon Jackson, a QC and Labour MSP, has misgivings about the application of the law, and fears it could lessen the significance of raciallyaggravated charges in general.

He said: "The law was created, very importantly, to stop people being bullied or discriminated against because of race, which most people in this country, I suppose, understand in relation to skin colour and minorities.

"If you use something too much, there is the danger that you lessen the force of it, which is what seems to be happening.

"If this is used for over-protection, the result is you water down its significance and the seriousness of racism.

"Is calling someone Welsh, or Irish, or English really any more offensive than calling them fat?"

WHAT'S IN A NAME?

A racial group is, for the purposes of the law, a group of people defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins. A crime is racially-aggravated if it can be shown that even though the motivation was not racist, racist hostility was demonstrated during the course of the offence or immediately before or after it.

Under the law, if a thirdgeneration Sikh born in Scotland was called a bastard, that would not constitute a raciallyaggravated breach of the peace. If the word Asian, brown, black, Scottish, British, European, Punjabi or Indian were put before bastard, however, the insult would then become raciallyaggravated breach of the peace. Calling him a Sikh bastard would not, as religion is not covered in the Crime and Disorder Act 1998.

Using the terms Orange or Fenian when insulting someone would not constitute a raciallyaggravated breach of the peace, but using the word Irish or Scottish would.

If a Scot insults another Scot by calling them a Weegie, Aberdonian or Dundonian bastard then it is highly unlikely a raciallyaggravated charge would be brought. Arguably, if an English person used the same insult it could, as the terms relate to the person's Scottishness and nationality.

Procurators-fiscal and advocates-depute are not allowed under any circumstances to drop raciallyaggravated charges as part of plea negotiations if there is enough available evidence.

However, they do have the discretion to reduce murder charges to culpable homicide or remove the phrase "attempting to murder" from a charge, thereby reducing the available sentence by more than half.

Defence lawyers can arrange for a whole series of deletions from a charge in a serious child sex abuse case in the High Court, but cannot remove a racial aggravation from a breach of the peace charge in the district court.