Army veteran Michael Ross, 33, was sentenced to life imprisonment and ordered to serve a minimum of 25 years after he was found guilty of shooting Shamsuddin Mahmood in the head at the Mumutaz restaurant in Bridge Street, Kirkwall, following a trial in 2008.
First-offender Ross, who served in the Black Watch and was in command of a sniper platoon, was arrested in 2007 but denied committing the murder at his trial at the High Court in Glasgow where he was found guilty on a majority verdict.
He has appealed against the conviction arguing that his right to a fair trial under Article 6 of the European Convention on Human Rights was breached and his rights were “irretrievably prejudiced” by the reliance placed by the Crown on statements he made during police interviews as a 16-year-old schoolboy without legal representation.
It is claimed the interviews with Ross as a child were unfair. They included material about possessing a balaclava that he had disposed of in the sea.
Defence counsel Margaret Scott QC said his rights had been breached because he was given “inadequate protection” which should have been in the form of access to a lawyer.
She said Ross’s case predated a European court decision on Yusuf Salduz which was brought into Scottish law following the Supreme Court decision in the Peter Cadder case, but they had emphasised the right of a suspect to a lawyer in police questioning.
In 2010, UK Supreme Court has made a ruling that Scottish police can no longer question suspects without their lawyer after judges in London upheld an appeal by teenager Cadder, whose assault conviction was based on evidence gained before he spoke to his lawyer. His lawyers argued this was a breach of his human rights.
The Salduz case referred to a 2007 European Court of Human Rights ruling, which said that confessions by criminals or suspects without access to legal representation is illegal.
Ross’s lawyers also challenged a decision by the trial judge, claiming he erred in refusing to allow the defence to lead evidence from psychologist Erica Robb who it was said had detected no signs of defective personality traits in Ross.
The trial heard evidence that disclosed Ross, who was 15 at the time of the killing, had held racist views and Nazi sympathies.
The appeal judges, the Lord Justice General, Lord Hamilton, sitting with Lord Carloway and Lord Bonomy, reserved their decision in the case and will give a ruling at a later date.