Two men accused of killing homeless Giles Metcalfe after dousing him in barbecue lighter fluid while sleeping in a multi-storey car park will not face a retrial.

The jury hearing the trial of Dean Lewis and James Marshall-Gunn was discharged in September “for legal reasons”.

But it can now be revealed that Judge Philip Statman ruled there was no case to answer after finding there was insufficient evidence to convict them.

The prosecution went to the Court of Appeal in London to challenge the decision, but the bid was rejected by three judges.

Lewis, formerly of Grange Gardens, Rusthall, Tunbridge Wells, and Marshall-Gunn, of Hadlow Road, Tonbridge, denied murder.

Lewis, 34, will be released, while 30-year-old Marshall-Gunn will remain in the Trevor Gibbens Unit at Maidstone Hospital to receive treatment for a mental disorder.

Maidstone Crown Court heard Mr Metcalfe, 43, was in a sleeping bag in a first-floor stairwell at the Torrington car park in Tunbridge Wells when he died.

His badly burnt body was discovered shortly after 3am on March 7.

The trial started on September 18 but Judge Statman discharged the jury of eight men and four women on September 26, telling them he could not give a full explanation for the reason.

They had heard Mr Metcalfe was more than three times the drink-drive limit. A few hours before he died he texted his estranged wife to say: “Settling down for the night. It’s all good xx.”

"There is in my judgment no evidence here as to who threw the liquid, if it was thrown, or who set the fire. Association is not enough. Suspicion is not enough. There must be intent to kill or cause really serious bodily harm" - Judge Philip Statman

Lewis was arrested later that morning at his girlfriend’s home in Grange Gardens, Rusthall.

Lewis claimed he left the car park after Mr Metcalfe started “talking weird” and then poured lighter fluid over himself while holding a cigarette.

An open bottle of barbecue lighting fluid and two lighters were found close to his body. The court was told the most likely source for the fire was a naked flame being held to the sleeping bag.

Traces of paraffin were also found on his jeans, upper clothing and socks, as well as on a pair of Lewis’s shoes.

Prosecutor Philip Bennetts QC said Mr Metcalfe’s medical records contained no history or mention of him having suicidal thoughts.

CCTV cameras captured Lewis and Marshall-Gunn leaving the car park at 1.20am. They returned at 2.07am and left again six minutes later.

Mr Bennetts said: “We submit on the evidence for your consideration that you can draw a proper and safe inference that together they went in to kill Mr Metcalfe by fire. What other explanation can there be? In, fire, out.”

Judge Statman said in his ruling, which can now be reported, it was “a wholly circumstantial’ case” and there was simply not enough evidence against either defendant.

There was no evidence of any animosity or hostility between the men that night.

The judge said the main prosecution witness who told police she overheard Mr Lewis threaten to “burn out” another man proved wholly unreliable once in court.

The defence lawyers argued that Mr Metcalfe may have accidentally, or even intentionally, set himself alight.

“This is not a case where it can be simply put on the basis of ‘in, fire, out’,” said Judge Statman. “There is in my judgment no evidence here as to who threw the liquid, if it was thrown, or who set the fire.

“Association is not enough. Suspicion is not enough. There must be intent to kill or cause really serious bodily harm.

“I have given this case, having looked at all the evidence, the most anxious consideration but at this stage I take the view this is not a case which, on the available evidence, ought properly be left to a jury, looking at each defendant’s case separately.

“There simply just isn’t enough.”

He added: “I make it absolutely clear that each and every aspect of the inquiry conducted by police has been utterly commendable. Against that, I have to look at the important function I have to perform.

“I have to look at this in a way which is a safeguard. I have to act according to the evidence, and I regret to say that in my judgment, at this time, the evidence simply is not there.”