TWO councils accused of the manslaughter of a man killed when a diseased tree fell on his lorry should not be held criminally liable, a judge has ruled.

If the decision is upheld, it should lead to the prosecution offering no evidence against Kent County Council and Sevenoaks District Council, said Judge Michael Lawson, QC.

After hearing legal argument, he ruled at Maidstone Crown Court that "no criminal liability should fall on the two authorities in the circumstances of this case".

It was brought by the Health and Safety Executive after Richard King, 21, of Hards Town, Chatham, was crushed by the tree as he slept in the lorry in a lay-by on the A224 at Polhill, near Halstead, on March 14 2002.

The judge said the large beech tree was about three metres from the lay-by on land owned by the Highways Agency and was, therefore, not part of the highway.

The tree had been inspected by a consultant on behalf of KCC in September 2001. He described the condition of it as dying with Meripilus at the base and said it should be felled.

Under an arrangement KCC had delegated some of its responsibilities as a highway authority to SDC. The report was forwarded to SDC.

"No steps had been taken by SDC in relation to the report by the time of the accident," said Judge Lawson.

The prosecution asserted that the absence of an effective system for implementing such reports gave rise to a serious and continuing risk to highway users, amounting to a breach of duty under the Health and Safety at Work Act 1974.

Lawyers for the councils argued that the charge was misconceived and wrong in law. It was established law, they said, that they owed no duty of care to the victim and were immune from civil suit over his death.

They further maintained that the prosecution argument that while they may be protected from an obligation to pay compensation, they could properly be prosecuted under the Act, offended against the ordinary principles of justice and was wrong.

The judge said the primary responsibility for the safety of the tree lay with the Highways Agency, but because of an unfortunate oversight it was unaware it was responsible.

"The prosecution case is based on the failure of the defendants to act, brought about by the failure of their systems for tree management," said Judge Lawson.

"I rule, on the material and authorities place before me, that in the absence of a duty of care the defendants cannot be made criminally liable for the same failures for which they are protected at civil law, save where there is clear statutory provision."

Judge Lawson said if his ruling was upheld and the prosecution failed to offer no evidence against the councils, there could be a renewed application that it was an abuse or process.