He referred to the argument of Counsel for the South Yorkshire Police as follows:-
"Thirdly, here the police were not discharging their own duty to the public; they were in fact discharging the Club's duties to the spectators whom the Club invited to the ground. The Club chose to invite large numbers to their private premises; it was the Club's duty to provide for their safety, health and comfort. They could have employed a security firm as banks and others have to do to protect their interests; they chose to request the police to perform those duties knowing that the police expected payment. Fourthly, the police within the ground provided services which it was not within the scope of their public duty to perform. For instance, they assisted in crowd management and in the enforcement of such ground regulations as refused entry to those who tried to enter without paying or prohibited spectators encroaching on parts of the ground which their entry fee did not entitle them to enter. It may be, submits Mr Bentley, that the maintenance of law and order was the predominant aim but there were other services performed."
The learned Judge found:-
"In addition to what may be called their law and order role the police were expected and did take part in crowd management, ensuring the safety of spectators, the enforcement of the Club's regulations and to be on hand to assist in the event of some emergencies such as fire or accidental injury."
Police Practice at the Leppings Lane End
170. At League matches at Hillsborough, the police practice was to decide in advance how many and which pens would be used. If a modest crowd was anticipated only one or two pens might be needed. It was better to confine the fans to limited spaces (a) to prevent them running about and (b) to reduce the number of police required. The practice was then to fill the pens one by one. This involved making a judgement as to when a pen was full. There would then be a police decision to close that pen and fill another. It was regarded as impractical and unsafe for police officers (just like stewards) to go onto the Leppings Lane terraces with away supporters. This meant that monitoring the numbers in any pen had to be done from vantage points outside it. Here, the police were much better placed than the stewards. There was a good view from the control box and the television screens there. There were officers on the perimeter track. No stewards were placed there because having both police and stewards interfered with the viewing. There were also police in the west stand who could look down on the pens. Intelligence from all these sources could give the police a good appreciation of the state of the terraces. When it was necessary to shut off access to the pens officers on the concourse could be informed by radio and could take the necessary steps.
"Find Their Own Level"
171. At Cup semi-finals, a different approach was adopted. All the pens were opened from the start and the policy was "to let the fans find their own level". This phrase was repeated again and again by police officers at the Inquiry. What it meant was that no specific direction was given to fans entering through the turnstiles. They were free to go wherever they wished on the terraces. If they became uncomfortable or wished for any other reason to move their position, then theoretically they could move elsewhere. In this way it was hoped that the fans on the terraces would level themselves out and that distribution would be achieved without police intervention. On these occasions, the gates at the top of the radial fences were locked in the open position. It was sought to argue, therefore, that there was freedom of movement from one pen to another enabling fans to "find their level".
172. This argument was bad both in theory and in practice. In theory, the whole object of the radial fences had been to achieve even distribution by directing fans into desired positions. To say then that they could move freely from one pen to another would defeat the object and enable fans to go from a less popular to a more popular area without inhibition. In practice this did not happen because the position and size of the gates was such that once a substantial number of spectators were in, the gates were unnoticeable and inaccessible especially to those towards the front who might have most need of them.
173. The same argument was deployed to suggest that individual maximum capacities for individual pens need not be assessed since the presence of the open radial gates still meant that the terrace was one area. In practice this simply was not so. The photograph at Appendix 5 taken from the north stand at 2.59 pm shows very clearly the congestion in pens 3 and 4 contrasted with the sparseness in pen 6. This gives the lie to the suggestion that the fans could, if uncomfortable, "find their own level".
174. The effect of this policy was that whereas at League matches the police had to make a positive decision when to close one pen and open another, at semi-finals, where overcrowding was much more likely, the police
